Peer review is a critical component of any scientific research. You don’t simply expect people to take your word for it. Instead, you send things out to other experts in your field and you say: I am confident in the results I have received. But have at it.
Scientific results must be reproducible, preferably by independent, outside parties. Finally, you need to watch out for the phenomenon of “confirmation bias,” which one authority has defined as “a tendency to search for or interpret information in a way that confirms one’s preconceptions, leading to statistical errors.”
The Standardized Field Sobriety Test (SFST) battery, the collection of three tests used nationwide to decide whether or not to arrest someone suspected of drunk driving, fails on all three counts. It was never peer-reviewed. Its results have never been reproduced. And since the person who was asked to “validate” the reports – Dr. Marcelline Burns of the Southern California Research Institute — was the same person who was paid to develop the battery, it is fair to say that that the validation results may have been subject to “confirmation bias.” To say the least.
So how is it that these tests are now widely accepted by courts throughout the country? Therein lies a lesson in the evils of one jurisdiction simply adopting the findings of another.
Many of the first jurisdictions to admit testimony on the three tests – the horizontal gaze nystagmus (HGN), the one-leg-stand (OLS), and the walk-and-turn (WAT) – did in fact entertain evidence with respect to the scientific and technical rigor of the SFST. The problem was that, in so doing, the vast majority of them based their decisions on testimony and written studies by none other than Dr. Marcelline Burns herself. As a U.S. District Court in Maryland put it, Dr. Burns has been a “ubiquitous – and peripatetic – prosecution expert witness testifying in favor of their accuracy and reliability in a host of state cases, over a course of many years.” United States v. Eric Horn, 185 F.Supp.2d 530, n.14 (2002). This is putting it politely.
Other jurisdictions never even conducted their own evaluations. Instead, they simply adopted the findings of other jurisdictions. With respect to the Horizontal Gaze Nystagmus in the District of Columbia, for example, the D.C. Court of Appeals cited decisions by courts in Iowa and Ohio as the basis for its conclusion that “testimony by a properly trained police officer with respect to the administration and results of the horizontal gaze nystagmus is admissible without need for further scientific evidence.” Karamychev v. District of Columbia, 772 A.2d 806, 812 (D.C. 2001). The Iowa and Ohio courts both based their acceptance of the HGN on an Arizona court decision. And the Arizona court based its decision on expert testimony and written materials by Dr. Marcelline Burns.
Q: How did you find that bottle?
A: I didn’t find the bottle. The policeman found the bottle.
THE COURT: So she didn’t find the bottle. It seems that you put facts in your question that aren’t in evidence. Did you want to rephrase the question?
PROSECUTOR: Permission to rephrase.
THE COURT: That would be a good thing.
Q: Do you know how the bottle entered that room?
A: Through the window.
DEFENSE ATTORNEY: Objection.
THE COURT: Just a second. Knowledge is something that one gets from hearsay. In other words, if you want to ask her whether she saw it with her own eyes that would be a different matter, but it’s not something she can testify about if somebody else told her.
Q: Did you see that bottle come through the window?
Q: Is that the bottle that entered through the window?
DEFENSE ATTORNEY: Objection.
THE COURT: So you’re asking her a question that she’s not competent to answer, because she doesn’t have a basis of knowledge, so I sustain the objection.
Q: Was that bottle in your room, was that your bottle?
Q: Was that bottle in your room at 9:00 in the morning?
Q: Was the window pane unbroken that morning?
A: Are you asking me was it broken? No, it was not broken that morning.
Q: And it was broken is what startled and awoke you, is that correct?
DEFENSE ATTORNEY: Objection. Leading.
THE COURT: Sustained.
. . . Q: Ms. Jones, how sure are you that you saw the defendant after the bottle came through the window?
DEFENSE ATTORNEY: Objection, Your Honor.
THE COURT: Basis?
DEFENSE ATTORNEY: It hasn’t been established that that was what through the window.
THE COURT: Oh, all right. And so are you understanding the basis for his objection?
PROSECUTOR: Not entirely, Your Honor.
THE COURT: Well, she didn’t see a bottle come through the window, so stop putting that in your question. There’s a bottle some place in her place that she’s just identified. There’s a broken window that startled her. But don’t put into questions things that she did not see and hasn’t testified to.
PROSECUTOR: Well, I believe –
THE COURT: So I’m sustaining that objection.
I have heard of “arguing with a witness” and “harassing a witness.” Until the judge accuses me of “badgering” the witness, however, I didn’t even know there was such a thing – other than on TV, of course.
The witness is the petitioner in a civil protection order case. I represent the respondent. I have asked her a series of leading questions. She is pleasant and smart. She is also very motivated, and seems to feel compelled to explain every answer she gives me.
This is where the “badgering” comes into play. I tell her she should answer the question I ask her, not the question she wants me to ask. I also tell her that if I want an explanation for one of my “yes/no” questions, I will ask her for it.
The trial team at Temple Law used to call this “spanking” a witness. The judge calls it “badgering.” “If you have a problem with the way the petitioner is testifying,” the judge tells me, “you should take this up through the court..”
It is true. I was in fact arguing with the witness. This is unseemly and undignified, and I am irritated with myself for having succumbed to the temptation. With the witness and me quibbling like a bunch of teenagers, this is not exactly the image of myself I was hoping to project.
Although I heed the judge’s advice, I have to say that asking the court for an instruction is a little bit like going to a parent to tattle on a sibling: You have to be careful not to come across as whiny. Sure enough, the next time the petitioner tries to add an explanation to one of her answers, the court does in fact instruct her to simply answer my question. “You have a very good lawyer,” the judge tells her. “She will have the opportunity, on redirect, to follow up with any questions she wants to ask you.”
The petitioner looks appropriately chastened. Lesson noted, I move on.
In DUI cases in which a suspect refuses to submit to a breath, blood or urine test, judges will typically base a guilty verdict on two different considerations. First, there are the results of the Standardized Field Sobriety Test (SFST). Second, there are the police officer’s observations with respect to the suspect’s appearance and demeanor at the time of the arrest. It is not, the court acknowledges, that either consideration in itself would be enough to find the suspect guilty. It is only when the court combines the two considerations that the court can be assured of being within “beyond a reasonable doubt” territory.
There are two problems with a verdict that was arrived at this way. First, because the SFST has never been peer-reviewed or accepted for scientific validity by any authoritative group outside a small group of self-interested proponents of the test, any such verdict would have been based on an unproven technique for assessing impaired driving ability. Second, because police officer observations of a suspect had already been factored into NHTSA claims with respect to the accuracy of the SFST, any reliance on the officer’s personal observations in addition to testimony about the SFST would mean that the verdict was based on a double-counting of these observations.
Here is the portion of the “San Diego validation study” that spells this out: “Upon commencement of the study period, participating officers used only the SFST battery (i.e, Horizontal Gaze Nystagmus, Walk and Turn, One Leg Stand) together with their observations of a driver’s general appearance and speech, to establish inferences about a subject for whom there was reasonable suspicion of driving while impaired.” Jack Stuster and Marcelline Burns, “Validation of the Standardized Field Sobriety Test Battery at BACs Below 0.10 Percent: Final Report,” August 1998, page 13. (Emphasis added.)
In the other words, according to my reading of the study, the accuracy rates claimed by NHTSA (88% for the HGN, 79% for WAT and 83% for OLS) are not based solely on police officer observations with respect to the suspect’s physical performance during each of the three tests. Instead, the officer’s personal observations about the “driver’s general appearance and speech” are also factored into the equation, along with any aberrant driving behavior that brought the suspect to the attention of the police officer in the first place. Combining SFST accuracy rates with the officer’s personal observations of the suspect’s appearance and demeanor would thus result in double-counting.
Many years ago, our mother had to go to the hospital, and it took the doctors a long time to figure out what was wrong with her. During that time, she was running a very high fever and was delirious. She was also being uncharacteristically difficult. They took her children out in the hall separately to ask us questions. We realized later they suspected that she was also suffering from alcohol withdrawal.
They interviewed Ray and me together. No matter what the questions were, they kept coming back to her drinking habits. Yes, Ray said, she did occasionally have a glass of wine with dinner. He put his thumb an inch from his pointer finger to show them just how small the wine glass was. Their eyes lit up. They were convinced they had the found their answer.
Ray and I could only laugh. It was funny for us to think that this daughter of a tee-totaling Presbyterian minister had a drinking problem. Of course they finally figured out that what she really had was pneumonia.
The point of all of this was this: During the time she was delirious, she couldn’t tell you who the president was. She couldn’t even tell you what year it was. But no matter how crazy my mother appeared to be, she never forgot – for even a moment – who her husband was, who her children were, and who her grandchildren were. And the love she had for all of us – even at the height of her delirium – was palpable.
* * * * *
My mother never lost that love.
Ray and I came up to Amherst just a couple of weeks ago to see her, and I spoke with her on the phone the day before she died. She had lost her appetite. And we couldn’t coax her out of her bed. Mom, Maggie said, you have to eat. You have to move. (Maggie has always been kind of bossy.)
But she was happy. She was reading her kindle. She told Maggie that she enjoyed lying in her bed, just thinking about us all. She was at peace. And no matter what else that was going on with her, you could feel that love – that mother’s love – coming from her.
* * * * *
Her love extended well beyond her family.
She loved this church and all her friends here. She and my father were members of the church for over 60 years. She served as director of children’s studies back in the early 70s. Dick thinks of her sitting over there on the left. I like to think of her in the front pew because that is where she and my father sat during the weddings of all three of their daughters.
She loved Muskingum College. She went there and many of her cousins went there. Her grandfather and uncle both served as presidents of the college. She was very proud of that fact.
She loved her enormous community of friends here in Amherst. She loved her bridge club of over 60 years. She loved her poetry club. She loved her bible study group. And her family benefitted last night from the generous food and drink provided by the travelers club. Thank you very much to the club for that.
She loved Hills Road. She helped the organize the annual block party many years ago. In later years, it was very comforting for her children to know that she had the Ralphs on one side, the Snoeyenbos’ on the other, and Cliff Wilkinson across the street.
She loved her colleagues and students at Amherst Middle School. She loved her little brother John McIlvaine. She loved her nephews and nieces: the Moores, the Michaelsens, and the McIlvaines. The Offutts, the Greenawalds, and the Budynas. It would have brought her great pleasure to know that all of those nephews and nieces are here today. She loved her 13 cousins in the Montgomery family. And she loved her grandchildren.
* * * * *
Our mother also loved to tell stories. And she was a great storyteller.
She knew to take her time, to relish the details. She always took lots of detours – to explain a particular relationship or to note something that might be of interest. Sometimes it was of interest. But she always got back on track. She always knew where she wanted to end up. And it was fun to hear the same stories over and over again. There is something so reassuring about the predictable.
Her favorite story, of course, was the one about her father being taken captive by the Germans during the First World War. At the prison camp, he met a Red Cross nurse who, taken by his blue eyes, slipped him a rabbit under the camp fence. Later, her father was filing past a group of Russian prisoners, many of whom had been at the camp a lot longer than he. Her father picked out the Russian he felt was most in need and he gave the rabbit to that Russian.
Years later, my grandfather was walking down the street as the new minister in Indiana, Pennsylvania when a man ran out and hugged him. “Don’t you remember me?” the man said to him. “You saved my life.” It was the Russian he had given the rabbit to.
* * * * *
Our mother was always very trusting. You might even say gullible. She would believe anything you told her.
At one point it occurred to me that this was really some grand strategy on her behalf. She trusted you so much you didn’t want to betray that trust. Her absolute faith in you inspired you to be worthy of that faith.
* * * * *
You cannot talk about my mother without also talking about my father.
My father always felt like he was the luckiest man on earth for having won my mother’s heart. It was like he had won the lottery, the Superbowl and the World Cup all at the same time.
We talk about how she accepted his proposal of marriage at Princeton. What we didn’t talk about was the number of times my father asked her to marry him and she said no.
My father loved this story: He and my mother were sitting in a diner early in their relationship. The waitress came up. “I am sorry to bother you,” she said. “But I have to tell you: Never before have I seen a couple so in love.” My father was very happy to hear this. Then came my mother’s response: “Let’s just say we are very good friends.”
But eventually my mother came around.
* * * * *
Our father wrote a number of poems about our mother. The one we tend to think of most is “Some Integers/Better By Half” which he wrote for her on her 50th birthday. I know that poem has been read at a number of weddings. My Uncle John read it earlier today.
The poem he wrote for her that I like much better is one that is far more obscure. In fact, it was a poem I hadn’t really thought much about until my brother pulled it out to read to my father on his death bed: It is called “Midnight, midwatch.”
The poem describes waking in the middle of the night — but not tomorrow, midnight, day gone past itself – and he thinks back to days on the bridge of a destroyer keeping watch during WWII.
Emma mentioned that he refers to the “icebox humming.” You can just hear my mother complaining about this: “Stan!” she said. “Nobody uses that word any more. Besides, an ice box wouldn’t hum.”
My father did say that a poem wasn’t done until my mother had approved of it. But, in this case, he liked “icebox” better than refrigerator. So he stuck with it.
There is a moment of uncertainty: Are you with me when the log turns?
The feeling of separateness: The hours of your sleep are closed to me.
Then: Time like a ship motionless between shores.
And now the kicker, and the lines written for our mother, written for us all we gather here today at the First Congregational Church in her memory, with love and affection for all she gave us –for that wife, mother, daughter, sister, aunt, friend, neighbor and cousin; for that vibrant, wonderful, beautiful, smart, optimistic, opinionated, and happy person: Always that image: water at the keel those midnights went unseen. The premise of our crossing is your breath to keep me up.
* * * * *
My mother was not afraid of death.
Many years ago, she and my father took a group of us to the plot of earth at Wildwood cemetery to show us where they would be buried. It is a beautiful spot on the slope of a hill, just a couple of feet from where the grass meets the woods. It is also just a couple of feet from the gravesites for Tom and Nonnie Moore. Her children find this very comforting to think about.
My mother brushed aside some leaves. She lay down on her back. She folded her hands over her chest. She closed her eyes.
Yes, she said finally. Your father and I will be very happy here.
* * * * *
From all five of her children, thank you for coming today.
–For Gene M. Koehler, February 15, 1925 – May 29, 2015
More like this:
The judge in Room 113 of D.C. Superior Court – where civil protection orders are handled – is two things that I am not. First, she is very smart. This is the second case I have tried in front of her. She does not miss a thing. When a trial is broken up, as it often must be, she can recall material facts from a couple of weeks ago. Second, she is very patient. With cranky, scared, and confused litigants before her all day long, she treats everyone with respect.
Lawyers spend most of the time we are in the room waiting for our case to be called. This means that we have lots of time to collect our thoughts followed by only brief periods in which we are on. The judge, by contrast, is always on. In cases in which the parties are not represented by counsel, she must also act as both prosecutor and defense attorney.
One of the things I like about this type of case is that, as a defense attorney, you always have lots of material to work with. In a stranger-on-stranger assault or robbery, you may be dealing with a single issue: the identity of the perpetrator, for example. By contrast, there is always back story in a domestic case. This means that, as a defense attorney, you will always have something on the petitioner. Because nobody is perfect. And domestic partners have long memories. They tend to keep score. The problem for the judge in Room 113 is that this back story – all of this anger and angst — finds its way into the proceedings.
The judge came over recently from the criminal defense calendar. I can’t help wondering how she likes her new assignment.
More like this:
This is what I tell my client after speaking with the complainant in a simple assault case. My client is accused of punching the complainant in the face.
The complainant turns out to be a first-class jerk. I call him up before the arraignment to find out what happened. I also express concern for his injuries. This, I have found, is the trick to get people talking: People love to talk about how they have been harmed.
Instead, the guy tries to shake us down for money. “I have talked with some of my lawyer friends,” he tell me. “And this is going to end up costing your client a fortune. First he is going to have to pay your fee. And then there will be a civil case. On an hourly basis, that is going to cost him even more.”
I always hate peoples’ “lawyer friends.” They tend to give such bad advice.
I take a moment to process what I am hearing. “Are you asking us to pay you off?” I ask him.
“Well,” he says. “I don’t have any sons. But if one of my daughters got herself into trouble like this, I would say that $30,000 would be a fair price to be done with it.”
There is another moment of silence as each of us thinks this over. You see the part about wishing I could hit him too? Or thinking that my client really should have hit him twice – and harder both times?
“I have to tell you,” I say to him. “I think you may have misunderstood the purpose of my call.”
“Very well,” he concludes. “See you in court.”
If there is at least a good basis for my “dislike” of the victim in this case, I am disturbed by the negative reaction I have to the complainant in another case. My client is accused of participating in the robbery of the woman’s self-phone and then beating her when she resisted. According to the medical records, the woman was diagnosed with a “bilateral nasal fracture” (i.e., a broken nose) and a fracture of the “left ocular/orbital floor” that required surgery.
Maybe there is some psychological thing going on here – some subconscious compulsion to demonize my opponent — but I dislike the complainant the moment I see a photo of her. Her nose is bandaged and both of her eyes are black. She is wearing a T-shirt with the words “Love” written across it. And she has this hurt puppy dog look on her face – a look that is at once noble and pathetic. I like her even less when she refers to the group of people who attacked her as a pack of wild dogs and then lectures the judge on the need to hold “this type of person” accountable.
When did I become this inured to the suffering of other people?
My wife tells me I have changed a lot since I became a criminal defense attorney. She may be right. I’m not sure she meant that as a compliment.
If ever I thought a person’s vanity might diminish with age, I have proven myself wrong: I am every bit as vain today as I have ever been. The problem is that the vanity now leads mostly to humiliation. And things are only getting worse.
So I am particularly pleased whenever I hear something positive about my physical appearance.
People often approach me at the courthouse to comment on something I have written here. I like this. For example, Grey Gardner told me the other day that his girlfriend – a public defender in New York — is a reader. I am a big fan of Grey, who is a first-rate lawyer and also a classy guy. So this was a compliment by extension. And a prosecutor told me recently that she was halfway into a blog entry before she realized she was the person who had inspired the post. Fortunately I was not criticizing her.
And then there was yesterday.
I wish I could remember my colleague’s name but he approached me as I was leaving the building. Asking me to confirm my identity, he told me he enjoyed the back-and-forth between me, my brother, and my brother-in-law in the comments section. That was nice. But what really made my day was what followed: “I wasn’t sure whether it was you or not,” he told me. “You look thinner in real life.”
Now come on: How often do you hear something like that?
I will be updating my website soon to make it more friendly for mobile devices. Maybe I should update my photograph at the same time. After all, moments pass. Things will only be going downhill from here.
As a younger man, I used to hang out with my cousin and his friends. Let’s just say that if you saw my cousin on the street, you would have assumed he was a homeless man.
Clerks at respectable establishments would cringe the moment we walked through the door. We were much more welcome at other places. Walking into a Seven-Eleven, for example, I felt like George Costanza in the Seinfeld episode in which he is suddenly accepted into an exclusive club – in George’s case, a good-looking people’s establishment. There was, as it turned out, a whole world that had been hidden to me.
Hanging out with my cousin was thus an education for me. As a white male, maybe I was not as attuned as I should have been as to how people might react to me on the basis of my appearance alone.
Or maybe it was like Eddie Murphy getting onto a public bus in white face with only white people already on board. “Pay?” the bus driver says with surprise. “Are you kidding me? You know that paying is only for black people, right?”