What happens to a person convicted by scientific (expert) testimony that later comes to be repudiated? Is there a magic key that can open the door of his prison? Caitlin Plummer and Imran Syed tackle this issue in a new article, forthcoming in the Stanford Journal of Civil Rights and Civil Liberties. Here is the abstract for their piece, 'Shifted Science' and Post-Conviction Relief.
Of the many known causes of wrongful convictions, perhaps the most complex and diverse is junk science. We explore here a long-overlooked subset of that category and ask the question: What can be done to cure the injustice of a conviction that was based on scientific testimony that may have been accepted in the relevant scientific community at the time of trial, but has since been completely repudiated? In such an instance, a defendant remains in prison even though the evidence that served as the basis of his conviction has been renounced. After describing the problem and conducting a review of common post-conviction claims- and the reasons they fail in this situation- this article argues that state courts must allow defendants in this unique bind to file new evidence claims to obtain relief. Because new evidence is, as of now, not recognized as a viable basis for a federal constitutional claim, defendants will not have easy recourse in federal habeas corpus petitions, and it is especially crucial that state courts ensure that their rules for new trial motions on the basis of new evidence are broad enough to cover the important category of people discussed here. The article concludes by proposing that federal courts could provide relief to such innocent defendants on habeas if they embrace expansive interpretations of a person’s right to be free from unjust incarceration, and they should do so in order to continue to serve as a check on state court failures causing manifest injustice.
Download the article from SSRN at the link. The citation is
Richard Dawkins' new book, forthcoming from the Free Press, is The Magic of Reality, discussed here in the Chronicle of Higher Education. In it, "the renowned evolutionary biologist writes that while magical explanations of natural phenomena are twaddle, the laws of science and reason can be "magical": that is, "deeply moving, exhilarating: something that gives us goose bumps, something that makes us feel more fully alive." "
The National Academy of Sciences ground-breaking report on forensic science – Strengthening Forensic Science in the United States: A Path Forward – raised numerous issues. One dominant theme that runs throughout the Report is the failure of some forensic science disciplines to comport with fundamental scientific principles – in particular, to support claims with empirical research. The Report observed that “some forensic science disciplines are supported by little rigorous systematic research to validate the discipline’s basic premises and techniques. There is no evident reason why such research cannot be conducted.”
The Report went on to identify fingerprint examinations, firearms (ballistics) and toolmark identifications, questioned document comparisons, hair analysis, and bite mark examinations as disciplines lacking such empirical research. This essay attempts to answer the “why” question: Why was there a lack of research across so many forensic disciplines?
Professor Giannelli answers the "why" question this way.
Several factors may explain the lack of empirical research in the early part of the last century--most significantly, crime laboratories staffed by police officers with inadequate budgets and a lack of scientific training. Moreover, a good part of the failures can be attributed to inadequacies in the legal system--the lack of counsel, the failure to provide defense experts, and insufficient discovery. In recent years, however, the reason for the lack of empirical research was simply a stubborn refusal to reconsider beliefs in light of credible challenges. This is the antithesis of the scientific method. As the NAS Report noted, “openness to new ideas, including criticism and refutation” is a fundamental principle of the scientific method. Download the essay from SSRN at the link.
Via the Chronicle of Higher Education: a district judge has tossed Ben Ito's lawsuit against Stanford University for “[s]cheming to justify the wave theory of light, using wave theory to represent matter.” The judge reached his decision on procedural grounds, thus avoiding the merits of the case (whether the Michelson/Morley experiments were right about the nature of light, for example). For more about Mr. Ito's opinions on the nature of light, see here.
Nature and Nature's laws lay hid in night: God said, "Let Newton be!" and all was light.
-- Alexander Pope (1688-1744)
-- Epitaph intended for Sir Isaac Newton
It did not last; the devil howling "Ho! Let Einstein be!" restored the status quo.
-- Sir John Collins Squire
Robert L. Weber, A Random Walk in Science (E. Mendoza, ed., Taylor & Francis, 2000).
We are deeply concerned about Wal-Mart Stores, Inc.‘s (“Wal-Mart’s”) irresponsible marketing and promotion of Boiron Oscillococcinum, an ineffective homeopathic “flu medicine,” through its website, www.walmart.com . Wal-Mart’s website states that the product, manufactured by Boiron, is to be used “for flu-like symptoms.” The website further states that the product’s alleged active ingredient, Anas Barbariae Hepatis Et Cordis Extractum 200CK Hpus, is used “to Reduce The Duration and Severity of Flu Symptoms.” The website also features an image of the product’s package, which indicates that the product “Reduces [the] Duration and Severity of Flu Symptoms,” including “Fever, Chills, Body Aches and Pains.”
Wal-Mart’s misleading promotion of this “homeopathic medicine” as a treatment for flu is not limited to the webpage on which the product is displayed. Consumers will reach this page only after visiting Wal-Mart’s “Medicine Cabinet” page, which assures customers that the products Wal-Mart carries will “fight colds and the flu.” From there, website visitors will navigate to the “Cough, Colds & Flu Wellness Shop” page, which promises to help the customer “Stay on top of cold and flu season by learning about products that can help you and your family stay well, relieve symptoms and recover fast.” In its “Cough, Cold, and Flu Buying Guide,” Wal-Mart asserts that its products will provide the customer “with everything you and your family need for battling a cold or the flu.”
In short, Wal-Mart’s entire website is replete with assurances that the products Wal-Mart offers as flu remedies are, in fact, effective for preventing and treating the flu. People are buying Boiron Oscillococcinum based on these assurances.
Wal-Mart’s assurances regarding Boiron Oscillococcinum, however, are false and irresponsible. Boiron Oscillococcinum is ineffective against the flu and flu symptoms. Homeopathic oscillococcinum solutions were first produced in the early 20th century on the mistaken assumption that they contained “oscillococci,” microscopic bacteria that proved to be imaginary. The allegedly active ingredient of Boiron’s Oscillococcinum consists of mere liquefied duck liver and duck heart, substances that were thought to contain the nonexistent bacteria. Moreover, manufacturing a “200 CK” homeopathic preparation requires repeatedly diluting the “active ingredient” in water until the odds that the solution contains even a single molecule of it are effectively zero.
There is no credible scientific evidence to support the effectiveness of Boiron Oscillococcinum’s “200CK” homeopathic preparation beyond what is expected from the placebo effect. The premise upon which the effectiveness of this “homeopathic medicine” is founded—that highly diluted preparations of substances that cause symptoms in healthy individuals will reduce similar symptoms in patients—has no basis in reality and has been disproved repeatedly.
This statement should not be interpreted as offering a legal opinion. By marketing Boiron Oscillococcinum through its website, however, Wal-Mart may be in violation of the Federal Food, Drug, and Cosmetic Act (“FFDCA”) and the regulations it implemented. The Food and Drug Administration and the Federal Trade Commission have issued warning letters to other marketers of Boiron Oscillococcinum stating that online marketing of the product for the treatment of flu symptoms violates the FFDCA.
Regardless of whether Wal-Mart is violating the law, its marketing of this product is a profound disservice to the public. Influenza is a serious illness. It can lead to complications resulting in hospitalization or even death, especially among the elderly, the very young, and individuals with certain health conditions. It is imperative that consumers not be led to believe that effective preventive and therapeutic measures can be ignored in favor of something that amounts to “snake oil.” A product that is useless is a product that is harmful.
The Committee for Skeptical Inquiry and the Center for Inquiry wrote to Wal-Mart in November 2010 regarding its inaccurate and misleading marketing of Boiron Oscillococcinum. To date Wal-Mart has neither issued a response to nor acknowledged receipt of CSI and CFI’s letter. Because Wal-Mart has misled consumers about the product’s effectiveness and ignored private pleadings to correct the situation, we are compelled to speak out publicly against Wal-Mart’s irresponsibility.
We urge Wal-Mart to cease marketing this ineffective product immediately. Although we recognize that doing so might not serve Wal-Mart’s financial interest, we hope Wal-Mart will act appropriately out of a sense of ethical obligation. The cooperation of good corporate citizens is indispensable if public consumers are to rely on the claims of health-remedy producers and the companies that market their products.
The FDA sent this warning letter last year to some manufacturers of products sold to combat symptoms or effects of the H1N1 virus. Note the mention of "Boiron Oscillococcinum." Here is a sample Wal-Mart ad. Here is a link to a manufacturer's website, with discussion of the benefits of homeopathic drugs. Note that the discussion includes FDA regulation, with a footnote suggesting a link to the relevant CFR (Code of Federal Regulations) cite, but the link takes one to more advertising, not to the CFR (Code of Federal Regulations). The website folks might want to fix the link; the cite given no longer works, but here's one to try.
The FDA regulates homeopathic drugs like OTC (over the counter drugs). Here is a link to attorney Paul J. Wisniewski's description of the homeopathic drug regulation regime.
Last week's Big Bang Theory episode (aired March 10), The Prestidigitation Approximation (available until the next episode airs), features Howard doing card tricks for Raj and Penny, and in the process driving Sheldon crazy. As we've noted before, Howard is not all that good a magician--his tricks are always of the "is this your card" variety (just like this one, in fact), but he is very good at pushing Sheldon's buttons.
Sheldon's reaction is an excellent example of Randi's principles: the intellectual is the one of the easiest persons to fool with a magic trick because he can't believe there's much he doesn't understand and the scientist can be easy to fool because he believes nature doesn't lie. So, physicist Sheldon develops all sorts of explanations for Howard's incredibly simple tricks. Howard of course responds, "I'm telling you, believe in magic, you Muggle!"
Penny tells Sheldon she has an explanation but Sheldon sputters, "Oh, please! If I don't know you don't know! That's axiomatic." Penny whispers her explanation into Howard's ear, he tells her she's correct and she crows, "Not too bad for someone who doesn't know what axiomatic means."
Part of the magic of this episode consists of the reality that Howard, Penny, and Raj construct around Penny and Raj's purported understanding of Howard's trick. Whether Penny and Raj understand how Howard does the trick is not the issue; it's whether they can convince Sheldon that they know and he does not. Sheldon becomes so obsessed with obtaining the solution to the magic trick that he actually breaks the law in order to solve the puzzle. He films himself doing the trick and playing both parts ("Pick a card") and then uses an infrared camera as well as the Cray Supercomputer at the Oakridge National Laboratory in order to "analyze shuffling patterns." When Leonard tells him he's committing a federal crime, he says, "Relax. We're not under attack right now." When his analysis goes awry, he muses, "I wonder where I could get some Uranium-235 right now...come on, Craigslist." Ultimately, he tells Howard, "Apparently, you can't hack into a government supercomputer and try to buy uranium without the Department of Homeland Security tattling to your mother." Howard shows him the trick "one more time," but Sheldon says, "This time, do it with me so I can see there's no monkey business." Since Raj is sitting next to him, of course Howard has a confederate, and Sheldon is stumped once again. "Yeah," says Howard to Raj as Sheldon walks away in disgust, "he's gonna win the Nobel Prize."
Well, he might. That doesn't mean he can, or should be able to, figure out a magic trick. As Raj would say, that's the fun.
Some in the media like to think they influence public opinion, but are the news pundits all hot air? At the same time, many news outlets play the "fair and balanced" card, when the evidence is, well, pretty clearly all on one side. So what's the score with regard to climate change?
The relationship between the mass media and climate change governance remains largely unexplored in the academic literature. In this paper, I argue that the media does influence outcomes on climate change. I provide an overview of media accounts on climate change, the factors which influence the reporting, and how the media can shape public opinion on the issue. Throughout, I treat the mass media as a mechanism of information diffusion and argue for its agenda-setting power on the climate change issue. Finally, I forward an original theoretical model whereby freedom of the press influences climate change governance. I argue that a freer media is more likely to transparently report the scientific consensus and thus take an implicitly normative stance in favor of climate change action. I then corroborate the model with multivariate regression analysis. The regression output finds that freedom of the press may correlate better with climate change activism than originally thought.