Proof Beyond the Flip of a Coin

In a previous post, I described the "Proof Beyond a Reasonable Doubt" as a convenient judicial myth. At the end of that post, I presented the following summary plot comparing the idealized concept against the reality of jury and judge verdicts.  I include that plot below for easy reference. Click to enlarge and clarify.

Judges and scholars, if forced to quantify the reasonable doubt threshold, tend place the threshold near 90%. While that number flies in the face of the plot above, it comports with quite a few studies attempting to quantify the threshold.

In a an earlier post, I presented evidence that jurors self-report that they place the threshold at 85%. First order, this means that if you are innocent but on trial, you stand a 15% chance of being convicted. As horrific as this is, I believe it seriously understates the problem faced by the (relatively few) innocent people facing a jury.

From my analysis of judge-jury agreement data, I calculate that an innocent person has a 28% chance of being convicted. From Professor (of Statistics) Bruce Spencer's analysis of judge-jury agreement data, he calculates that an innocent person has a 25% chance of being convicted. (Professor Spencer is careful to limit his conclusion to the sample of trials he studied.) I present comparitive summaries of our results in Judges Gone Wild: Revised, and one of the plots from that post below. Click to enlarge and clarify.

If jurors do in fact use an 85% threshold for reasonable doubt, then I am probably wrong in my calculation that 28% of innocent people are convicted (rather than acquitted) by juries. In this case, I would be pleased to be wrong. Unfortunately, I don't believe I am.

In his 1993 book Inside the Juror, Reid Hastie actually looked at three approaches for determining the reasonable doubt threshold used by jurors. The 85% threshold is based on the self-reporting approach. Hastie calls that the direct approach. I call it the least reliable approach. In this post, I'll describe the results from a the second approach, what Hastie calls the parallel approach. Quoting from Hastie, here's how the  first of the parallel approach studies worked. It's pretty clever, actually.

Two independent groups of subjects made judgments after listening to an audiotaped homicide trial; one group made a dichotomous [either-or] guilty-innocent verdict judgement and the other half of the subjects rate the probability that the defendant had committed the crime.

Assuming the two groups were valid samples of our jury pool, the researchers could determine the actual reasonable doubt threshold by comparing the guilty votes with the probability of guilt assessments. Neither group knew how the other group would vote or rate the probability of innocence.

The initial study was repeated by two other investigators. In the two follow-on studies, only one group was used. That group was asked to provide both a verdict and a probability of innocence. Below, I tabulate the results from the three studies as reported by Hastie.

Using this method of determining an actual (rather than self-reported) reasonable doubt threshold, the first-order conclusion is that jurors will find 34% of the innocent defendants guilty. That rate of innocents being convicted is greater even than the 28% rate I calculated and the 25% rate Professor Spencer calculated. Perhaps one could fault the studies for relying entirely on students, though during the self-reporting studies the students responded substantially the same as other potential jurors.

Alternatively, one might consider the possibility that juries convict somewhere between a quarter and a third of the innocent defendants who come before them. That's bad, but better than the flip of a coin.

But not much better.

The Impending Execution of Timothy Wayne Adams

Timothy Wayne Adams is scheduled to be executed by the people of Texas on 22 Feb 2011 for the murder of his  19-month-old son, Timothy Wayne Adams, Jr., No one disputes Adams committed the murder. Those who argue against his execution ask for clemency based on the entirety of his life. From Timothy Adams: A Case for Clemency:

In 2002, Timothy Wayne Adams shot and killed his 19-month-old son, Timothy Wayne Adams, Jr. during a standoff with Houston police. After a fight with his wife escalated out-of-hand, Mr. Adams “snapped” and decided to take his own life and the life of his youngest son. Mr. Adams did not take his own life on that horrible day due to the support of his family and friends, who spoke to him over the phone and told him that his life was worth saving. One of those friends convinced him to speak to an HPD negotiator, who in turn persuaded Mr. Adams to let go of his suicidal thoughts and end the standoff. Ultimately, Mr. Adams left his apartment and surrendered peacefully to police a few hours after the ordeal began.

From the moment that Mr. Adams was taken into police custody, he has taken full responsibility for his actions. Mr. Adams realizes that it is nearly impossible for the Board, as well as any citizen in our society, to comprehend what could lead a father to kill his own son. In no way would Mr. Adams ever try to justify his actions; what he did was wrong, plain and simple.  He would take back his actions that horrible day in an instant if it were possible.

What Mr. Adams requests is that he have the opportunity to tell his life story, something that the jury did not hear at his trial. Mr. Adams’s defense counsel did not present crucial mitigating evidence to counter the prosecution’s contention that Mr. Adams was a future danger to society or to show that his life was worth saving. Consequently, the jury learned almost no information about Mr. Adams’s life and upbringing, which would have helped them determine that Mr. Adams, a deeply religious, hard-working family man, was not a future danger to society and never will be.

Lacking this mitigating evidence, it is perhaps not surprising that the jury sentenced Mr. Adams to death. But since learning additional information about Mr. Adams’s character and background, jurors Rebecca Hayes, Ngoc Duong, and Kathryn Starling have urged the Board to commute Mr. Adams’s death sentence to a life sentence. They believe that information relating to Mr. Adams’s upbringing, deep devotion to religion, and mental state would have caused them to stick with their initial inclination, which was to spare Mr. Adams and sentence him to life in prison.

With this petition, Mr. Adams seeks to show the Board that February 20, 2002 was an aberration in his life.  Before that day, Mr. Adams had never been arrested or convicted of a crime.  Since that day, he has not had a single disciplinary write-up in prison.  Mr. Adams wants to share his life story to show the Board that, before committing this crime, he was a religious, hard-working individual who suffered from extreme anxiety but who loved and provided for his family just the same. Since being incarcerated, he has had the opportunity to reflect on his actions, which has brought him closer to God and deepened his devotion to Jesus Christ. 

In telling his story, Mr. Adams wants to give his family the opportunity to speak on his behalf, something that defense counsel prevented them from doing at trial.  In this case, the defendant’s family is unfortunately also the victim’s family—Mr. Adams’s father lost his grandson, his siblings lost their nephew, and his oldest son lost his half-brother. Yet, none of these family members were able to stand up in front of the jury to describe the severe hurt and suffering they had endured as a result of Mr. Adams’s actions. Nor were they able to explain that, despite their pain, they still supported and loved Mr. Adams and did not want to lose their son, brother, and father to this tragedy as well.

Mr. Adams has filed a clemency petition with the Texas Board of Pardons and Paroles, asking them to vote to spare his life.  Nothing good will come from executing Tim and causing his family any more unimaginable pain and anguish. If ever there was a man who deserved clemency, it is Tim Adams.

I oppose the execution of people who might be factually innocent of the crime for which they are to die. I suspect that to prevent the execution of the factually innocent, we might have to ban the death penalty entirely.

With respect specifically to the execution of Timothy Wayne Adams, I stand mute.

A Clarification

A couple of readers have commented about the penalty phase of Michael Wayne Hall's trial. That is a point worthy of discussion, but I'll leave it for those who comment and those who write elsewhere.

For clarification, my focus is on actual, factual guilt or innocence. I am primarily interested in whether the person committed or participated in the crime. This is different than legal guilt or innocence.

A person may be legally innocent though he comitted or participated in the crime. The jury may have found that the state failed to prove its case beyond a reasonable doubt, or that the defendant was legally insane at the time of the crime. I don't have a fundamental objection to either situation, though I would prefer that sane, factually guilty people pay for their crime and that insane people not pay for their insanity.

More disturbingly, at least to me, a person may be legally guilty though he neither committed nor participated in the crime. The jury may have concluded that the state proved its case beyond a reasonable doubt, though the defendant was factually innocent (as in the case of Byron Case) or though no crime in fact had occurred (as in the case of Michael Ledford.) These are the cases that motivate me, and threaten to consume me.

The Impending Execution of Frank Spisak

Frank Spisak, Then

Frank G. Spisak is scheduled to be executed by the people of Ohio on 17 Feb 2011 for the murder of three people. I find no credible evidence that Spisak might be factually innocent of the crimes.

In fact, Spisak has always admitted to the killings. He has yet to deny them. His defense has always been that he is crazy. He may be right.

That's Spisak at the right, during his trial. Note the moustache. Spisak was an admirer of Adolph Hitler, a Nazi sympathizer and a neo-Nazi. He was also a gender-confused transexual and a serial killer.

From A Gender Variance Who's Who, I offer the following insight.

Frank was the son of a factory worker in Cleveland, Ohio, who moved home because too many blacks had moved into the area. He had childhood fantasies of being a woman.  He married at 22, and they had one daughter. He read constantly on Hitler and the Nazis and his wife tried to ignore the issue. He worked in various factory jobs. 

At 25 he suffered a head injury in a car accident. In 1977, he started dressing as female. As Frankie Ann, Spisak received treatment from the Gender Dysphoria clinic at Cleveland Metropolitan Hospital, lived as female full-time, changed her ID, saw a psychologist and started taking female hormones. She was also saving for surgery. She was fired from her factory job after turning up as female. Frankie Ann found employment with a maker of eyeglasses until found not to be a woman. She tried prostitution until charged with solicitation, and briefly worked as a Kelly Girl temp. When she brought a trans woman home for sex, her wife and daughter moved out. 

But in 1979 the Nazi Frank took over. He collected Nazi memorablia, and played Hitler’s speeches on his stereo. He was stockpiling guns and ammunition. He was also dating a black female prostitute. In February 1982 he found a black preacher in the next stall in the men’s toilet at the Cleveland State University Library and shot him dead. In June he shot a black man at a train station, who survived. In August he returned to to CSU and shot at a female student in the ladies room but missed. He became paranoid about a maintenance worker at CSU who might identify him, and so shot him dead, again in the men’s toilets. The next night he killed a young man waiting at a bus stop.

A week later he got drunk and shot his gun out of the window of his house. For this he was arrested, but was allowed to post bond. An anonymous phone call suggested to the police that they re-examine the guns that they had taken from Spisak’s house, and they were found to match those used in the killings.

Once arrested he admitted the murders, grew a Hitler-style mustache and carried a copy of Mein Kampf. At his 1983 trial, his attorney presented him as crazy but he was not found to be ‘legally insane’. He declared that he was under orders from God, and that Jews were to blame for his transvestite episodes, having seized control of his mind. The jury quickly found him guilty and sentenced him to death.

In jail, Spisak lobbied for a sex change, filed a lawsuit to force the state to refer to him as a woman, and appealed the death sentence. In 2006 the appeal court ruled that he had not received a fair defense and struck down his death sentence. In 2010, this was reversed.

The accounts of the crimes are consistent with those found in Spisak's appeal Spisak v. Mitchell:

On February 1, 1982, the body of the Reverend Horace T. Rickerson was discovered by a fellow student on the floor of a restroom on the Cleveland State University campus. Rickerson had been shot seven times by an assailant from a distance of more than eighteen inches. Four spent bullet casings were recovered from the scene.

On the evening of June 4, 1982, John Hardaway was shot seven times while waiting for an RTA train at the West 117th Rapid Station in Cleveland. He observed a man walking up the platform steps and had turned away when the man opened fire on him. Hardaway survived the shooting, and was later able to identify his assailant as the appellant, Frank G. Spisak Three pellets and seven shell casings were recovered from the scene.

At approximately 5:00 p.m. on August 9, 1982, Coletta Dartt, an employee of Cleveland State University, left her office to use the restroom. Upon exiting the stall, she encountered the appellant, holding a gun, who ordered her back into the stall. Instead, Dartt shoved appellant out of the way and ran down the hallway. Appellant shot at her, but missed. A pellet was later removed from a wall in the hallway. Dartt identified the appellant as her assailant.

On August 27, 1982, the body of Timothy Sheehan, an employee of Cleveland State University, was discovered in a restroom at the university by a security guard. The guard had been searching for Sheehan after his office reported that he had failed to answer his beeper page. Sheehan had been shot four times, and two pellets were retrieved from the scene.

On the morning of August 30, 1982, the body of a young student, Brian Warford, was discovered in a bus shelter on the campus of Cleveland State University. Warford died from a single gunshot wound to the head, although five spent.22 caliber casings were recovered from the scene.

On September 4, 1982, Cleveland police answered a call that a man was firing shots from a window at 1367 East 53rd Street. The police were directed to appellant's apartment and appellant, after admitting he had fired one shot, invited the officers inside. A shotgun and a .22 caliber automatic pistol were observed in the room. Appellant made a suspicious move toward the couch but was stopped by one of the officers who discovered a loaded .38 caliber handgun and a two-shot derringer under the couch cushions. Appellant was arrested for possession of unregistered handguns and discharging firearms within city limits, but was later released on bond.

The weapons, however, were confiscated. Early the next day, an anonymous caller told police that the confiscated weapons had been used in the Cleveland State University shootings. Ballistics tests confirmed the tip. A warrant was obtained, and the police returned to Spisak's apartment, confiscating several items including newspaper clippings of the homicides and Nazi-White Power paraphernalia. Appellant was later arrested, hiding in the basement of a friend's house. During a brief search of appellant's suitcase at the scene, police discovered the beeper pager belonging to Sheehan.

Appellant later admitted to shooting Rickerson for allegedly making a homosexual advance toward him; to killing Sheehan as a possible witness to the Rickerson shooting; to killing Warford while on a "hunting party" looking for a black person to kill; and finally, to shooting at Dartt and to shooting Hardaway. He also told police he had replaced the barrel of the .22 caliber handgun in order to conceal the murder weapon.

Frank Spisak, Now

I oppose the execution of people who might be factually innocent of the crime for which they are to die. I suspect that to prevent the execution of the factually innocent, we might have to ban the death penalty entirely.

With respect specifically to the execution of Frank Spisak, I stand mute.

The Impending Execution of Michael Wayne Hall

Michael Wayne Hall is scheduled to be executed by the people of Texas on 15 Feb 2011 for the murder of 19-year-old Amy Robinson. I find no credible evidence that Hall might be factually innocent of the crime.

For those of you convinced that we execute only guilty people, I suggest you consider the many cases of people wrongfully executed. Examples of people executed though likely innocent include (but are no means limited to) Johnny Frank Garrett, Frances Elaine Newton, and Cameron Todd Willingham.

For those of you opposed to the death penalty under any condition, I suggest you familiarize yourself with the details of some of the crimes for which people are condemned to die. For the details of the crime committed by Michael Wayne Hall, I offer the following description taken from his appeal Hall v. State: 

Eighteen-year-old Hall and his friend Robert Neville decided to kill someone because Hall was angry that he had a "sucky-ass" life. They started searching for the right victim and preparing for their crime by obtaining rifles, pellet guns, a crossbow, and ammunition. After much looking, Hall and Neville finally chose nineteen-year-old Amy Robinson, a friend and former coworker, because she trusted them and they "didn't have to put bruises on her to get her in the car." The evidence also revealed that Amy had a genetic disorder that made her small and mentally and physically slow. She stood four feet five inches tall and had the mental capacity of a third or fourth grader.

On February 15, 1998, Hall and Neville went looking for Amy in order to carry out their murderous plan. They checked her schedule at the Kroger grocery store and then lay in wait for her to ride by on her bicycle on her way to work. When the pair saw Amy, they coaxed her into the car, promising to drop her at work after they circled around in the country. As Neville drove, Amy complained that she did not want to be late for work.

Neville then pretended to have a flat tire and pulled the car over on a dirt road by a remote field. Hall and Neville got out of the car and walked into the field carrying their weapons while an unsuspecting Amy waited in the car listening to the radio. At some point, Hall persuaded Amy to get out of the car, telling her she needed to go talk to Neville near a tree. As Amy walked toward Neville, he fired a crossbow at her several times. Neville missed each shot, but Amy became angry when the last arrow grazed her hair. When Amy started walking back to the car, Hall shot her in the back of her leg with his pellet gun. Hall and Neville laughed while Amy cried in pain.

Meanwhile, Neville returned to the car and got his .22 caliber rifle. When Hall managed to maneuver Amy back into the field, Neville shot her in the chest. Hall then shot her in the chest "three or four or six times" with the pellet gun. Amy fell to the ground making loud noises and shaking. Hall then stood over her and stared for five to ten minutes. The pair worried that someone would hear Amy, so Neville shot her in the head, killing her instantly. Hall and Neville then left Amy and her bicycle in an area where they would not be easily discovered.

A few days later, they returned to the scene. Neville fired shots into Amy's dead body, and Hall took keys and money from her pocket. When Amy's family and coworkers realized she was missing, a massive search ensued. More than two weeks later, authorities focused on Hall and Neville. Fearing they would be caught, the pair fled Arlington but were soon arrested when they attempted to cross the border into Mexico. The authorities found Amy's body on the day of the arrest.

Hall apparently gave an incriminating interview to the press while in custody. One basis for his appeal was the admissibility of the interview as evidence during his trial. Again from  Hall v. State:

Finally, Hall boasted in his media interview that he was the one who got Amy to trust him, and she would have escaped had Neville tried to commit the offense without him. Indeed, Hall told the media that he had no remorse for Amy's death. When asked how he felt about Amy dying the way she did, Hall snickered, "Well, I wouldn't want to be in her place. She had to take a lot of pain." After his arrest, Hall told law enforcement and the media that he and Neville had wanted to become serial killers and kill one to five people a week. They also wanted to become white supremacists and kill African Americans.

From the Texas Execution Information Center, we learn more based on  the execution (5 years ago) of Michael Wayne Hall's accomplice, Robert Neville:

That day [of the murder], a store employee called Robinson's family to notify them that she had not shown up for work. The family then called the police, who questioned Neville and Hall. Neville told the police that he worked with Robinson and knew her socially, but had not seen her in a couple of months.

Two weeks later, Hall's mother reported to the police that Hall had been missing for several days. Hall's stepbrother told the police that Hall had told him he and Neville had abducted and killed Robinson. Neville and Hall were arrested on 3 March in Eagle Pass, as they were attempting to cross into Mexico.

Neville admitted killing Robinson and told police where to find her body. He said that one day when he and Hall were drunk, he told Hall that he "would just like to [go] out and kill somebody." They initially discussed killing a black person, but then changed their minds and agreed that Amy Robinson, being small and mentally challenged, was an easier target. Robinson was also part Native American.

After his arrest, Robinson told reporters that he and Hall wanted to become serial killers of racial minorities. "We had a bet going to see who could shoot and kill the most people between the two of us," he said. "No matter if it was blacks or Mexicans - anybody as long as they weren't our color."

Neville used his final words to apologize for his role in the crime.

Yes.  Ms. Carolyn Barker, and Tina, I would like to apologize to you all.  To Amy's sister, and everybody else here.  I love you all.  I hope you can find it in yourselves to forgive me and I hope all this here will kinda settle your pain and I hope the Lord will give you comfort and peace.  And I just want you to know I am very sorry for what I have done.  And if I see Amy on the other side, I will tell her how much you love and miss her and we will have a lot to talk about.  Mom, Dad, and Charlotte -- I am sorry for putting you through all this pain and stuff.  I did talk to Brandon and I think I got a little stuff stopped.  I love you all and I will see you on the other side. Okay.

I oppose the execution of people who might be factually innocent of the crime for which they are to die. I suspect that to prevent the execution of the factually innocent, we might have to ban the death penalty entirely.

With respect specifically to the execution of Michael Wayne Hall, I stand mute.