The Way To A Judge's Heart Is Through His Stomach

Further deepening my growing suspicions that life may best be described as a series of random events comes this news via Discover Magazine, “Justice is served, but more so after lunch: how food-breaks sway the decisions of judges”. Yeah, that’s right, food breaks.

A Ben Gurion University researcher tracked over 1000 parole hearings over a ten month period, and then plotted this graph:

Think of the X-axis(labeled ordinal position) as stretching from 9 am to 5 pm, as the day goes by*. The Y-axis(proportion of favorable decisions**) shows the likelihood of being paroled. The enormous upward spikes that prevent the parole percentages from falling to less than 0%? Well those are the times the judges ate. Snack and lunch breaks were always documented, and the results speak for themselves.

The study found these outcomes regardless of gender, ethnicity, severity of the offense, number of favorable decisions already made (in other words, no “quota effect”). By far the most likely determining factor seems to be how long it has been since the judge last ate a Twinkie.

There are mathematical formulas for determining whether studies that show differences in populations (in this case, paroled vs. non-paroled prisoners) accurately reflect a cause and effect relationship, but my guess is that over a thousand decisions that can only go two ways (to let him out, or not) probably reaches statistical significance***.

However, why this happens is guesswork. I like the author’s simple explanation(see Occam’s razor):

All repetitive decision-making tasks drain our mental resources. We start suffering from “choice overload” and we start opting for the easiest choice. For example, shoppers who have already made several decisions are more likely to go for the default offer, whether they’re buying a suit or a car.

And when it comes to parole hearings, the default choice is to deny the prisoner’s request. The more decisions a judge has made, the more drained they are, and the more likely they are to make the default choice. Taking a break replenishes them.

So, you’re wrapping up cross examination of the last witness, and roughly calculate that after jury charge and closing the case will be sent to the jury around 11 a.m. Should you ramble on for a while to increase the chance the jury will decide your client’s fate either after or during lunch, instead of making a quick decision while they’re at their hungriest?****

[Footnotes:

*It appears to me that at a reported rate of fourteen to thirty five 6-minute decisions per day, the judges may not be nine to fiving these duties, but my point is the same. Also, I’m too lazy to click through all the hyperlinks to read the original study.

**One man’s favorable is another man’s shmavorable decision. The author of the study had the decency to call the decision to parole the inmate favorable, and to send him back to his cell for who-knows-how-long the opposite. Kudos for the empathetic use of vocabulary.

***More accurately, the math can only tell you the confidence interval, and again, while I’m not going to crunch the numbers, see laziness in footnote one, I bet this comes in well over a 95% confidence range.

****The question only makes sense (if it does at all) if you assume the default decision for a jury is “Guilty”. That’s a different blog post entirely.]

If By Whiskey Marijuana...

William Safire popularized the phrase “if by whiskey…” in his columns, and defined it in his Political Dictionary as, “Taking both sides of an issue; equivocating; a political straddle”. The term originates from a speech given by Soggy Sweat, a 1950s Mississippi legislator, master of irony, and a real character to boot:

My friends,

I had not intended to discuss this controversial subject at this particular time. However, I want you to know that I do not shun controversy. On the contrary, I will take a stand on any issue at any time, regardless of how fraught with controversy it might be. You have asked me how I feel about whiskey. All right, here is how I feel about whiskey.

A little context: Mississippians staggered to the polls and voted dry until 1966, when they finally became residents of the last state to decriminalize the sale of alcohol. The topic of banning/regulating/allowing alcohol was present for every politician in every campaign, and surprise, surprise, most made a habit of supporting whichever position the listener wanted to hear. For example, a group of teetotalling nuns would be told something like the next part of Soggy’s speech:

If when you say whiskey you mean the devil's brew, the poison scourge, the bloody monster, that defiles innocence, dethrones reason, destroys the home, creates misery and poverty, yea, literally takes the bread from the mouths of little children; if you mean the evil drink that topples the Christian man and woman from the pinnacle of righteous, gracious living into the bottomless pit of degradation, and despair, and shame and helplessness, and hopelessness, then certainly I am against it.

Sounds like most politicians today on the subject of marijuana, not to mention the “hard drugs”. But Soggy continued his speech on the floor of the house:

But, if when you say whiskey you mean the oil of conversation, the philosophic wine, the ale that is consumed when good fellows get together, that puts a song in their hearts and laughter on their lips, and the warm glow of contentment in their eyes; if you mean Christmas cheer; if you mean the stimulating drink that puts the spring in the old gentleman's step on a frosty, crispy morning; if you mean the drink which enables a man to magnify his joy, and his happiness, and to forget, if only for a little while, life's great tragedies, and heartaches, and sorrows; if you mean that drink, the sale of which pours into our treasuries untold millions of dollars, which are used to provide tender care for our little crippled children, our blind, our deaf, our dumb, our pitiful aged and infirm; to build highways and hospitals and schools, then certainly I am for it.

The speech took him several months to write. I could write every day for the rest of my life and never come up with a sentence that good. He ends with an emphasis on the straddle:

This is my stand. I will not retreat from it. I will not compromise.

Fifteen million Americans regularly use marijuana. Twenty five million inhaled at least once in the last 12 months. Over one hundred million Americans have smoked pot at some point in their lives. (Wouldn’t we better off if that number were even higher? No, no, wait, that’s a controversy I’ll avoid as off topic, at least in this post.)

Of course, marijuana can’t have a Soggy Sweat speech, because the second paragraph would be unwritable. It doesn’t make people violent, they don’t lose their life savings to it (despite the incredibly high de facto tax of criminalization), it doesn’t tend to break up families, people never die from it. Ever.

Perhaps that paragraph might read:

If when you say marijuana you mean the substance that makes twenty five year old Junior sit at home in his Mom’s basement playing Xbox 360 and refusing to get a job, that makes him drive 15 miles an hour to the 7/11 to spend his allowance on a can of Pringles, that contains enough carcinogens that he could get lung cancer – that is, if he smokes it daily and twice on every Sunday for the next several thousand years… then certainly I am against it.

I told you Soggy could have done a better job. Isn’t there a single politician out there that wants to carry on this tradition?

[Hat Tip: Frank Dubois at The Westerner]

It's Beginning To Taste A Lot Like Christmas

A client brought a nice Xmas gift to my office this week.  Tamales.  Delicious tamales.  Homemade.  But wait, it gets better than that...

Delicious homemade tamales... made by his mother.  Merry Christmas to me.

And Merry Christmas to all, and to all a good night.

At Least He Wasn't Tweeting For Clients

Jeffrey Partlow’s apparent lack of a law license hasn’t kept him out of the legal representation business over the last nine years:

A Dallas man arrested on suspicion of showing up to court intoxicated is now also accused of practicing law without a license.

Judge Andrew Bench summoned deputies to his Hunt County courtroom on Oct. 22, telling them that Jeffrey Scott Partlow was intoxicated.

After Partlow was arrested for Public Intoxication and held in contempt, presumably for the drunkenness, the judge decided to call the licensing authorities:

The judge was so angry that he called the Texas Bar Association to have Partlow sanctioned, only to learn no one by that name was registered with the bar.

"During the investigation, we determined that he was not an actual licensed attorney," Sheriff Randy Meeks said… He remains jailed in Hunt County on the contempt charge. The Hunt County district attorney is expected this week to present a felony case to a grand jury against Partlow for impersonating an attorney.

Assuming this is all true, I have some good news for Partlow. If he never hit the books actually studying criminal law, he might want to look up Faretta v California, 422 U.S. 806 (1975). If he does end up getting indicted, it’ll probably be under Texas Penal Code Section 38.122, Falsely Holding Oneself Out As A Lawyer:

(a) A person commits an offense if, with intent to obtain an economic benefit for himself or herself, the person holds himself or herself out as a lawyer, unless he or she is currently licensed to practice law in this state, another state, or a foreign country and is in good standing with the State Bar of Texas and the state bar or licensing authority of any and all other states and foreign countries where licensed.

Third degree felony, ouch. While it’s true that the doctor who treats himself has a fool for a patient, the Faretta decision gives Partlow the right to represent himself - legally - in his own criminal case. Might be his last shot at it. Somewhat off topic, the article also notes:

Partlow never advertised in a newspaper, phone book or online. All of his clients apparently came from recommendations from former clients.

Austin Defender and I were eating delicious crispy beef tacos (gratuitous plug for El Arroyo) over lunch yesterday and discussing the issue of how clients ought to pick their lawyers. I argued that criminal defendants would do themselves* a big favor if they asked everyone they knew for recommendations, rather than picking up the yellow pages to find the lawyer with the glitziest ad.

Who knows... maybe this guy was doing a decent job.

[*OK, they might be doing me a favor too, since I don’t advertise in phone books, or send mailers, and the vast majority of my clients come from referrals.]

Identifying Likely State's Preemptory Challenges

I use one of the world’s most complicated and sophisticated voir dire note taking systems, consisting in no small part of adding plus and minus marks in each venire person’s allotted space on my sheets, and sometimes adding short annotations.  It can be from something on the juror sheets, or something they say in voir dire.  Or perhaps a squirm here, a glare there.  I preassigned juror #8 five plus marks for the following answers at impaneling:

• Injuries Requiring Medical Attention: Yes.
• Description: Hit over the head by an asshole cop and had to have my head flesh stapled.

Sigh. Must you have made it so obvious? Well, at least they only have two preemps left. (If it had been a felony, it would have been nine left.)