Closing In On Dark Matter

January 10, 2012

Scientists figured out years ago that there was nowhere near enough matter in our Local Group of galaxies to create enough gravity to keep them from flying apart. Our Local Group consists of our own Milky Way Galaxy, the Andromeda Galaxy, and several dwarf galaxies. They reached the same conclusion regarding all of the galaxy clusters in the observable universe.

Realizing that something must be holding them together, they deduced the existence of a form of invisible matter and called it dark matter. There must be a lot of it because, to account for the stability within galaxy clusters, approximately 73% of the universe must be dark matter. Think of it as a kind of matrix or web within which galaxies form and develop.

Ordinary matter which makes up the stars, planets, and all visible objects in the universe, including ourselves, only makes up about 4% of the universe.

The rest, or about 23% of the universe, is another theoretical concept called dark energy, which exists in deep space in the regions between galaxy clusters. It causes space to expand, which explains why space is expanding between the galaxy clusters.

One problem with the theory of dark matter is that there should be more dwarf galaxies in our Local Group than have been observed. Last year, at the annual American Astronomical Society meeting in Seattle, Dr.Sukanya Chakrabarti from the University of California at Berkley presented her theory that they are present, but basically rendered invisible to us by dark matter and she proposed to look for evidence of their presence using radio telescopes to analyze disturbances in the vast clouds of hydrogen gas at the farthest reaches of the Milky Way. Her idea is similar to attempting to find a boat by searching for its wake.

Using the method, Dr Chakrabarti found a set of ripples that indicate a comparatively huge satellite galaxy, 260,000 light-years from the centre of the galaxy.

The satellite – dubbed Galaxy X in deference to the 19th-Century discovery of Neptune that named it Planet X – should weigh between three and 10 billion times as much as the Sun, about a hundredth as much as the Milky Way itself.

Now all that remains is to confirm it. That will have to wait until Dr Chakrabarti’s collaborators are granted time to use the Spitzer Space Telescope.

For more information about Dr. Chakrabarti, go here.

This year, at the annual meeting in Austin, a team of scientists from the Canada-France Hawaii Telescope presented four palm-print size images taken during different seasons of the year, each showing a region of space more than a billion light years across.

Together, they represent the images of more than 10 million galaxies, whose light gives the only hints of the large-scale structure of dark matter.

“Light coming toward us from a distant galaxy is bent by the gravity of a lump of matter in the middle,” explained Catherine Heymans of the University of Edinburgh.

“Einstein’s theory of general relativity tells us that mass bends space and time, so when light comes toward us through the Universe, if it passes some dark matter, its light gets bent and the image we see gets bent and distorted,” Dr Heymans told the meeting.

“Dark matter is leaving its signature on the images of very distant galaxies.”

Check out the four images here.

As the evidence for dark matter begins to add up, it seems to be only a matter of time before scientists finally detect a particle of dark matter. Perhaps, the Large Hadron Collider will git ‘r done next year.


Opinion Evidence, Expert Witnesses, And The Plight Of The Injured Plaintiff

January 9, 2012

Junk science and the charlatans for sale who rely on it while masquerading as objective experts above the fray of litigation constitute a serious and continuing problem to the fair administration of justice in our legal system.

The Federal Rules of Evidence (FRE) distinguish between ordinary witnesses and expert witnesses. With a few exceptions, such as whether a person appeared to be intoxicated or how fast someone was driving, ordinary witnesses are supposed to restrict their testimony to facts they perceive through their five senses. Experts are permitted to express opinions that are typically expressed to a “reasonable scientific (or medical) certainty.” A major part of the problem for indigent and poor plaintiffs is lack of sufficient funds to hire sufficiently qualified experts. Plaintiffs personal injury lawyers usually advance the costs of such witnesses and reimburse themselves out of a favorable money judgment. In practice, this means that they will not agree to take a case unless they are virtually certain they will win. It also means that the lawyer or firm that takes the case must have a big war chest and there are not very many who do. Meanwhile, corporations and insurance companies have virtually unlimited funds available to retain multiple experts and they routinely subject plaintiffs to delays and hurdles to leap until money runs out and they settle the case for less than it is worth or they drop out.

Fortunately, in criminal cases, an indigent defendant has a Sixth Amendment right to have the court appoint and compensate an expert when an expert’s assistance is “reasonably necessary” to present a defense. Ake v. Oklahoma, 470 U.S. 68 (1985).

There are any number of urban legends about undeserving plaintiffs who won multiple million dollar judgments against ‘poor’ corporations and insurance companies, but I doubt that any of the stories are true. Even if some of them are true, they pale when considering the following studies.

When considering whether there should be limits on tort liability for damages due to personal injury, keep in mind that, according to HealthGrades’ fifth annual Patient Safety in American Hospitals Study, patient safety incidents cost the federal Medicare program $8.8 billion and resulted in 238,337 potentially preventable deaths during 2004 through 2006.

This study followed HealthGrades’ studies in 2000-2002 that reported 195,000 preventable deaths per year in U.S. hospitals.

Here are the applicable rules regarding ordinary and expert witness testimony.

As you read the rules and my discussion of Daubert v. Merrell Dow Pharmaceuticals that follows, keep in mind that one of the many evidence-based debates that we should be having as an educated democratic society, but tragically are not having, is what should we do to reform these rules and other practices to assure fair and equitable results to economically disadvantaged people who suffer personal injury.

Rule 701 provides:

If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are

(a) rationally based on the perception of the witness,

(b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and

(c) not based on scientific, technical, other specialized knowledge within the scope of Rule 702.

Rule 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion, or otherwise, if

(1) the testimony is based upon sufficient facts or data,

(2) the testimony is the product of reliable principles and methods, and

(3) the witness has applied the principles and methods reliably to the facts of the case.

In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the United States Supreme Court reversed the Ninth Circuit Court of Appeals decision affirming the trial court’s dismissal of the plaintiffs’ lawsuit against Merrell Dow Pharmaceuticals for birth defects allegedly caused by Bendectin, a drug manufactured by Merrell Dow to prevent pregnant women from suffering morning sickness. The plaintiffs had relied on in vitro and in vivo animal studies, pharmacological studies, and reanalysis of other published studies to show that Bendectin could have caused the birth defects. Nevertheless, trial court had dismissed their lawsuit based on the Frye Rule, which prohibits the use of evidence that has been obtained from using a scientific methodology or process that has not been generally accepted in the scientific community.

The United States Supreme Court rejected the Frye Rule in Daubert as unnecessarily restrictive of new discoveries in science because it amounted to little more than counting heads in the scientific community to determine if a principle or methodology was generally accepted rather than evaluating the merits of the new principle or methodology. Therefore, even though the scientific community had not yet generally accepted that Bendectin caused birth defects, the Court concluded that the studies relied on by the plaintiffs were sufficient such that they should have been been permitted to present them to a jury to consider.

In Daubert the Court basically appointed trial judges to function as gatekeepers in determining whether to admit evidence based on novel scientific principles or methodologies. The Court set forth a non-exclusive checklist for trial judges to apply in assessing the reliability of scientific evidence. The specific factors the Court mentioned are:

(1) whether the expert’s technique or theory can be or has been tested according to some objective process,

(2) whether the technique or theory has been subjected to peer review and publication,

(3) whether there was a known or potential rate of error for the technique or theory and, if so, whether it was applied,

(4) whether applicable laboratory standards and controls were used, and

(5) whether the technique or theory used has been generally accepted in the scientific community (which is the Frye Rule downgraded from an outcome-determinative rule to one of several factors that should be considered).


The Wenatchee Sex Ring Case: UPDATED

January 7, 2012

Before I accepted an offer to teach at the American Justice School of Law (AJSL), a start-up law school in Paducah, Kentucky, as well as organize and manage the school’s innocence project, I warned the dean and assistant dean that I wanted their assurance that they would support me, if I questioned and attempted to change the criminal justice system in Paducah. I had previously done that in Wenatchee, Washington with Innocence Project Northwest, an organization that I had cofounded at the University of Washington School of Law in Seattle. The legal and political turmoil that we caused in Wenatchee was still ongoing and I wanted them to know that I would do everything within my power to root out injustice in Paducah, if I found it, no matter how that might impact the school. Both men promised me they would have my back and I accepted their offer of employment.

When Crane-Station and I arrived in Paducah in June, 2006, I discovered that the deans had been recruiting students to enroll at AJSL by using my name and national reputation from our work in the Wenatchee case. I had more or less expected them to do this, so I was not surprised. In fact, I was rather pleased, as I have always viewed myself as a revolutionary and derived considerable pride from instigating change. Nevertheless, I soon found myself checkmated after Crane-Station was arrested because I feared what might happen to her, if I pushed too hard. We have often wondered if the prosecution’s determination to get a conviction and send her to prison for as long as possible, even if it had to withhold evidence, cheat, and suborn perjury to do so, was a reaction to my presence here and the threat that I represented to the conduct of business as usual in this immensely corrupt river town.

I will be writing more about that corruption in the future. Before I do, however, I want to tell y’all a little bit about the Wenatchee Sex Ring case, so that you might better understand why we believe Crane-Station was railroaded into prison to neutralize me. After all, that is an extraordinary claim to make and we believe y’all deserve to know why we believe that is what happened.

The first thing y’all have to understand is that the Wenatchee Sex Ring never existed. It was the product of the prejudiced mind and fevered sexual imagination of a Wenatchee police officer named Bob Perez and several child welfare social workers. The defendants and their children were poor white folks living on welfare and social security disability payments. They belonged to the same church and stood out in an otherwise economically well off community. Many of the parents and their children were developmentally disabled and viewed by many in the community with suspicion and distrust, if not outright hostility. Despite an absence of any evidence, Perez and the social workers also suspected the parents were sexual perverts.

That situation changed when one young girl told her mentally disabled mother, Idella Everett, that several boys in her class at school had jumped her in an alley as she was walking home from school and forcibly touched her privates. The mother reported the matter to a state social worker who suspected the mother and the child were lying in order to protect the child’s father, Harold Everettt, by blaming the boys for bruises in the child’s genital area. When Idella insisted that Harold would never do that to a child, she decided that both parents were sexually abusing the child in the home on an ongoing basis, even though the child persistently denied it. She then persuaded Idella that it was in the best interests of the child to remove her from the home and place her in a loving and nurturing foster home for awhile and put her in therapy to deal with her issues. Not knowing that she had a right to refuse the placement and concerned about her daughter’s welfare, Idella signed a consent form agreeing to the placement.

Well, the loving and nurturing foster home turned out to be the police officer’s home. He and his wife kept repeating that they knew her parents were “very sick and needed help.” They explained the situation to the therapist to make sure that he ‘knew’ that the girl was been sexually abused by her parents over an extended period of time and they decided to work together to convince the girl that her siblings, who were still living in the home, were in danger of being sexually abused by sick parents who needed help to prevent them from victimizing her siblings. They played on her love for her family insisting that unless she told the ‘truth’ (i.e., that her parents had sexually abused her) so that they could provide the help that the parents needed to get better, her siblings would suffer the inevitable unpleasant consequences and it would be her fault because she did not tell the truth. They never told her that getting her parents the help they needed meant convicting them of raping children and sentencing them to prison for more than 20 years.

As ya’ll can imagine, the girl soon buckled under that pressure and told them what they wanted to hear about her parents. Police immediately arrested the parents who immediately protested that they were innocent. The police accused them of lying, separated them, transported them to the police station, and placed them in separate interview rooms. Then they lied telling each of them that the other had confessed that both of them had raped their children and they would spend the rest of their lives in prison, unless they confessed and pled guilty.

Lawyers were not appointed to represent them until after they signed their confessions.

Meanwhile, the police officer continued to tell the girl that he ‘knew’ more adults were involved. When the minister of the church held a public meeting at the church to discuss the arrests and publicly announced that the church membership believed the girl’s parents were innocent victims of a witchhunt investigation and prosecution, the officer and the social worker decided that the minister and everyone who supported him must belong to the sex ring. He told the girl he believed they were involved and sure enough, she agreed.

The police then focused their investigation on interviewing the children of those individuals. They went to the schools that the children attended, pulled them out of their classes and interviewed them individually using the same tactics they used with girl. In most cases, the children buckled under pressure and told them what they wanted to hear.

That led to another wave of arrests with police employing the same tactics they had used with the child’s parents to extract false confessions. Eventually, all of the parents pled guilty and were sentenced to prison terms exceeding 20 years.

Eventually, many of the children recanted their false accusations and there was any physical evidence corroborating the accusations.

I decided to get involved when I read The Power to Harm, an expose of the incredible injustice that had taken place in Wenatchee written by Andrew Schneider and Mike Barber, reporters for the Seattle Post Intelligencer. I recruited 40 lawyers in Seattle to work for free and teamed them up with law students to represent 17 of the innocent men and women who were wrongfully convicted. We succeeded in freeing all of our clients even though all of them had pleaded guilty.

In recognition of our efforts, the National Law Journal awarded Innocence Project Northwest and our teams of lawyers and students its prestigious Indigent Defense Award in 2000.

I do not believe the corrupt legal system in Paducah welcomed my arrival.

EDIT: In the paragraph that begins with the word, ‘eventually’,I corrected a mistake by adding the word never, which is italicized.

Unfortunately, I also inexplicably forgot to mention that all of my innocence project files were in the car when Crane-Station was pulled over and the officers can be seen in the in-dash video reading through them with flashlights using the lid of the trunk as a desk.

This occurred before she was transported to the hospital for the blood draw and before the ‘discovery’ of the controlled substance that started out being heroin and later became crack.

I apologize for the omissions.


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