Civilian Deaths in Aerial Bombing

Pax Christi is meeting next week to decide whether we will have a gathering this summer called 2008 Hiroshima Day.

One stated purpose last year's gathering was to "recognize the terrible consequences of war."

Three planes flew toward southern Japan from Tinian, an island in the west Pacific Ocean, for 6 hours on August 6, 1945. One was an instrumentation plane, one was a photographer's plane and the third was the Enola Gay, named after the group commander Colonel Tibbet's mother. On the Enola Gay was a gravity bomb named "Little Boy" armed with 130 pounds of uranium.

Japanese early alert radar had picked up the planes about an hour before the bomb fell at 8:15 in the morning, but since there were only three planes, the alert was lifted. The Japanese had decided not to intercept such small formations to save fuel.

The bomb fell nearly a minute before exploding about 1900 feet above the city. A radius of a mile was completely destroyed and a radius of four miles was burned up. The immediate death toll was 70,000 people. Estimates of the number of dead by the end of the year 1945 were 90,000 to 140,000. Within 5 years the death toll most likely reached 200,000. About 20,000 of the dead were Korean's conscripted into forced labor in Japan. There were also prisoners of war.

Legal challenges to the bombing have largely been based on the targeting of civilians, most of the people killed in Hiroshima. Treaties from the Hague beginning in the early 20th Century attempted to limit civilian deaths.

Aerial bombing was considered so horrific it was banned even before it was invented. The Hague Convention of 1899 stated: "The Contracting Powers agree to prohibit, for a term of five years, the launching of projectiles and explosives from balloons, or by other new methods of a similar nature."

In 1923 a Draft Treaty on Aerial Bombardment was supported by the United States including the following language:

The bombardment of cities, towns, villages, dwellings or buildings not in the immediate neighborhood of the operations of land forces is prohibited. In cases where [military targets] are so situated, that they cannot be bombarded without the indiscriminate bombardment of the civilian population, the aircraft must abstain from bombardment.

Now this language seems old-fashioned. We are accustomed to aerial bombardment of civilians. But the early treaties and conventions largely reflected a convention that there could be no moral justification for bombing civilians.

Bomber pilots seem to sometimes wind up being those most eloquently opposed to war: Joseph Heller, Howard Zinn, and George McGovern, for instance. Kurt Vonnegut had the vantage point of being a prisoner of war in Dresden when it was firebombed by the Allies.

Even with the new, supposed precision bombing, civilians are overwhelming the victims in modern warfare. A group called iraqbodycount.org has measured civilian deaths in Iraq since early 2003. These are only civilians; deaths in combat are not counted. Today's numbers are 83,221-90,782.

When All the World Dissolves

I recently read Faustian Economics: Hell Hath No Limits. This is an article by novelist Wendell Berry that appears in the May 2008 issue of Harper's Magazine. Berry says:

We seem to have come to a collective delusion of grandeur, insisting that all of us are “free” to be as conspicuously greedy and wasteful as the most corrupt of kings and queens. (Perhaps by devoting more and more of our already abused cropland to fuel production we will at last cure ourselves of obesity and become fashionably skeletal, hungry, but–thank God!–still driving.)

When I was in college my economics teacher, Clifton Grubbs, talked about what it would be like if gas were $5.00 per gallon. It was actually then about a quarter a gallon, so he was talking about an increase of twenty times the price. Even accounting for inflation, gas is more expensive than it was then. That quarter of a gallon gas would still be under $2.00 now, so the $3.50 or so we are paying at the pump is less than double, but a 75% increase.

Under Grubbs' scenario, gas would cost about $40.00 per gallon now. His idea was that if gas were really to pay for the costs involved in its use, including the clean up afterwards, prices would be this high.

If gas were this expensive, society would rapidly reorder itself. I have trouble imagining it but it seems, as a beginning, downtowns would become prime real estate and people would walk and ride bicycles more. Probably, also, whole other industries would come to a screeching halt: vacations, airlines, trucking. And then the industries that rely on those things would collapse such as hotels and grocery stores.

A friend made a trip to El Salvador last week. He has been traveling back and forth for most of the forty years he has lived in Brownsville and he tells me that with the price of corn and rice so high, conditions are dire. People are starving.

Berry in thinking of our predicament is brought back to Christopher Marlowe's Tragical History of Doctor Faustus: Berry describes the desire of Dr. Faustus, so much like our modern approach to control "all Nature's treasury," to "Ransack the ocean.../ And search all corners of the new found world..."

The warning is that where we have no limits, hell also becomes limitless.

Hell hath no limits, nor is circumscrib'd
In one self place; for where we are is hell,
And where hell is, there must we ever be:
And, to conclude, when all the world dissolves,
And every creature shall be purified,
All places shall be hell that are not heaven.

Berry is a farmer first and a writer second, so a local economy based on growing much of your own food does not intimidate him.

The distributists also are big on locally grown food on personally owned, mortgage-free land. With the price of grain spiking, it is easy to be held for ransom if you have no control over your own food.

Now my tomato plants have always died and I'm too fat to keep a garden comfortably. Do you suppose sloth and gluttony are kin? How about control of our food and control of our freedom?

Texas, Bloody Texas. Cameron, Bloody Cameron.

Texas had 60% of the death penalties in the country in 2007. Of the 42 executions in the nation, 26 were in Texas. The next two highest states were Louisiana and Oklahoma, with 3 each. It is as if the proximity to Texas increased the numbers.

David Dow, a law teacher at the University of Houston believes the other states will continue to decline and soon Texas will have all the executions in the United States:

“The reason that Texas will end up monopolizing executions,” he said, “is because every other state will eliminate it de jure, as New Jersey did, or de facto, as other states have.”

The last man killed in Texas was Michael Richard. On September 25, the Supreme Court accepted a review of death by lethal injection in Baze v. Rees. That same day, Richard's lawyers came rushing in with a stay of execution a few minutes after 5:00 p.m. Presiding Judge Sharon Keller instructed the clerks, without consulting the other judges, to refuse the filing. That same evening Richard was executed.

In an Austin-American Statesman article, the judge in charge of the case Cheryl Johnson was quoted as saying her reaction was "utter dismay."

"And I was angry," she said. "If I'm in charge of the execution, I ought to have known about those things, and I ought to have been asked whether I was willing to stay late and accept those filings."

Overall, though, the number of executions are declining. And there is hope there will be fewer in Texas sent to death row because Life Without Parole is now available.

When Texas passed life without parole in 2005, it was already available in 47 states. Senator Eddie Lucio deserves the credit for its passage. Sen. Lucio sponsored the bill and was its primary moving force in the Senate. Gov. Perry signed it. Pax Christi members are grateful to Sen. Lucio for his support of the bill. We don't know if it would help him or hurt him to have our support, so we will leave that decision to him. I believe he has saved about 15 lives a year as a result of the change, and may begin to change Texas' reputation for being the most blood-thirsty of states.

As well as I can count by the numbers currently on death row are trending as follows:

2002 33
2003 28
2004 23
2005 15
2006 11
2007 15
2008 1 (to date)

The life without parole option is of course not the only factor in reducing the death penalty. DNA exonerations are also important. In 2001 Governor Rick Perry declared a legislative emergency after he pardoned a man who had served 15 years after being wrongfully convicted of rape. He fast-tracked a bill that allowed convicts to get state-funded DNA tests if biological evidence was available and they could show that ere was a reasonable chance of exoneration.

Of the first 32 tested in Dallas County, 12 were exonerated. On April 15, Dallas County announced its 16th exoneration. Even the Dallas Morning News, after a century of supporting the death penalty, declared that it doubted that Texas could guarantee "that every inmate it executes is truly guilty of murder."

In modern times, Cameron County has sent at least 6 people to their deaths by execution. One had never been to prison before, was identified, not at trial, but in a dying identification from a photograph. His last words: I am an innocent man, and something very wrong is taking place tonight. May God bless you all. I am ready.

The Peace Bishop

So who are these people, the Pax Christi? I first ran into them in the early 80's and they were people completely outside of my experience.

I was a backslid Baptist and had no interest whatsoever in self-sacrifice for any purpose. These people seemed to waltz into prison without a second thought. And not even for some risk that might have brought a shot at some big bucks. Incredible.

There didn't seem to be very many of them. I supposed going to prison for religious reasons tended to winnow those few pieces of weighty grain from all the rest of us light little pieces of chaff the wind could blow away.

For me, Bishop John Fitzpatrick was the center of it all. He was the Bishop in Brownsville from 1971 until 1991 and I bumped into him only rarely, at a restaurant or a meeting. I wish I could report I felt some type of religious awe, but in those days (and maybe now) my religious awe receptors were blunted. I felt a different type of awe. The type of awe I felt around dangerous people: Billy Jack the junior high school bully, biker friends of my brother in Austin, the antiquities smuggler from Mexico, the reputed hit-man from up the Valley.

For one thing, he scared me because he was unafraid of a federal judge.

The Bishop and the Federal Judge were in a head to head dispute. The Federal Judge was a devout Catholic and was standing on THE LAW. The Bishop, GOD'S LAW.

The faithful, including the director of Casa Romero, were helping refugees from El Salvador. They were "transporting" refugees in violation of federal criminal law. So they were being prosecuted.

This is how the Fifth Circuit describes the Bishops position:

Bishop John Fitzpatrick, Bishop of the Roman Catholic Diocese of Brownsville, testified that meeting material human needs represents an essential aspect of Christianity, and that each individual remains free to fulfill this obligation according to the directives of his or her own conscience. Although no law of the Roman Catholic Church specifically requires Roman Catholics to provide sanctuary or rides to Salvadorans, Bishop Fitzpatrick believes that providing such assistance constitutes an appropriate expression of the Christian gospel.

I was, in those days, still trying to be a good lawyer which I thought meant supporting THE LAW. But in this dispute I knew that the Bishop was expressing one of those self-evident truths. You, know, that thing about being created equal and endowed by our Creator with those inalienable rights. So, I knew the Bishop was right and the Judge was wrong. This from a backslid Baptist.

Of course, though when the law and God's law come into conflict, people of conscience go to prison. This was the Pax Christi.

So who are these Pax Christi? They support "Christian nonviolence on the personal, communal, national and international levels...nuclear, conventional and domestic disarmament, an end to the international arms trade, economic conversion to a non-military economy, conscientious objection, and nonviolent alternatives to war...the struggle against economic injustice, militarism, and environmental destruction which are particularly harmful to those who are poor, minorities, children, and women...and universal human rights, both at home and abroad, through solidarity with oppressed and marginalized people struggling for dignity."

The group was formed just after World War II when German and French Catholics met to discuss the senselessness of having killed each other by the millions in just a few years. It came to the United States in 1972.

OK, how did that fit me? Well, first I wasn't religious and second I hadn't exactly been a pacifist. It is true, I had opposed the Viet Nam war, but this conviction only came after I drew a number 53 in the draft lottery, pretty well assuring if the war didn't end, I'd be draft. (It did. I wasn't.) Before I drew my lottery number I favored stopping the dominoes and I expressed the certainty that, "Some things are worth fighting for." (Yes, even the grammar was bad).

And not being a pacifist, although I had the courage for the occasional fist fight in High School, I certainly didn't have the courage to stand up to a federal judge as a lawyer. So before the Pax Christi Bishop and the Pax Christi members, I stood in dread and wonder.

I haven't gotten much braver as the years have passed, but I have come to the view this fearless, small group are right about most everything. Kathy and I converted to Catholicism. And now, when I have money for dues, I join to get the newsletters and to the extent my faint-heartedness permits, I participate.

They viewed the vast immeasurable abyss Outrageous as a sea, dark, wasteful, wild

Pax Christi is a Catholic Peace Organization. We have a meeting Monday, April 28 at 7 pm in the conference room at the St. Mary's Parish Office, 1300 E. Los Ebanos Blvd. The Office of State Representative Eddie Lucio III report to Pax Christi representatives that Rep. Lucio will be present to review death penalty issues. This is open to the public and we encourage you to come. Your presence will not be taken as an indication that you agree with the views of Pax Christi. I will make a presentation with a nifty power-point presentation and my usual good-humored acceptance of people who disagree with me.

I have been practicing jury selection questions about the death penalty with my friends in hopes of getting myself ready for a trial. The responses (from those people who did not simply run and hide from me) have been surprising both to me and the ones I was questioning. In hypothetical questions, people who viewed themselves as anti-death penalty voted for death and some who viewed themselves as favoring the death penalty in the hypothetical questions opted for life without parole. There also seems to be little correlation between views on the death penalty and other political views. There are a lot of pro-life conservatives and pro-death liberals.

Carefully formed intellectual constructs about the death penalty are blown away even when a hypothetical question is posed informally. I am not sure any of us really know what we would do if truly faced as a juror with the decision to kill or not to kill.

So I will offer a hard case for the conscientious objectors among us. (I pray that if the moment of truth every arrives for me I would still find myself among that group--but who knows?) Hard cases are legion. This one is from today's news:

The Birmingham News announced the death by pancreatic cancer of serial killer Daniel Siebert this week. Siebert had been on death row for 22 years and had been one day from death last October, but was granted a stay because of the challenge to the means of lethal injections.

He murdered with slow strangulation and had five victims in Georgia including his girlfriend, a student at the Alabama Institute for Deaf and Blind, and her two young children and another woman in the apartment complex where they lived. He confessed to another 13 murders nationwide.

Even while on death row, Siebert had been uncommonly odious. He made sexually exploitive and sadistic drawings that were peddled for money on a website devoted to what it called "Murderabilia." This brought a call from the Alabama legislature to find a way to stop the trade for profit of death row drawings.

The children of a victim issued a statement and expressed disappointment that Siebert had died of natural causes before execution.

What am I to make of this?

The law calls the response retribution, and there have been times when I have thought that this was the only argument for punishment that was irrefutable. A desire for vengeance--this, I have experienced and can understand.

My fantasies and sometimes dreams in my sleep of retribution, vengeance against someone who had wronged me (many fewer now that I am getting old) always involved an act by my own hand. Gun, knife, strangling. My imagined wrongdoers to whom I owed a righteous vengeance were always rivals I feared. Another lawyer, maybe, or a politician. Some of those people became my friends as years passed. Maybe my own fear that I have the potential for violence may have been a factor in moving me to a philosophical position of non-violence.

And of course those philosophical world views that we develop for ourselves may or may not survive the anger in the heat of the moment. My Dear Old Dad used to warn me about pacifists: "Be careful, those guys are killers." I am not sure if this was just his love of the paradox or he had some basis for the belief. He claimed he and other surgeons entered the field as a way to direct sadistic impulses--a socially acceptable way to cut people. I can imagine the pacifist who reacts in this way to control violent impulses. Something like the person who decides to become celibate to avoid being a sexual predator.

Why though, wasn't the life of misery and the horrible death of Daniel Siebert satisfying to victim's children? Twenty-two years on death row. One inmate describes the experience like this:

We are kept in constant confinement, locked in-cell all day long - except for the five days a week we are allowed one whole hour outside (in another, slightly bigger, cage). Cell temperatures are kept cold and breezy by powerful forced-air vents, yet permissible clothing is limited. All meals are served in-cell, on a filthy tray shoved through a slot in the door. Showers? For us, it's three times weekly. As for visiting, we are limited to two hours per week, with added physical restrictions: all death row visits take place in a 4' x4' separation booth, behind a barrier. (All this after prisoners' family, friends and attorneys' drive many hours to reach this remotely-located prison.)
This from a Robert Buehl incarcerated in Pennsylvania.

And then death by pancreatic cancer, normally a relatively rapid death (months of agony), but an especially painful death, even under the best of conditions with morphine and hospice care. And from what I know of prison medical care, I suspect Mr. Siebert's care in Alabama was less than ideal. (If I knew the choice was lethal injection or pancreatic cancer for me in an Alabama prison, I may well be too afraid of the cancer pain. Like those people who jump to their deaths out of a burning building).

The victim's children reported they did not have a sense of satisfaction from this end to Daniel Siebert.

Would an execution have actually been better, though? I don't know.

I do believe that we who choose to defend those accused of capital crimes (either in or out of court) must be willing to face the worst of cases and be willing to face the suffering caused the victims.

My Pity Wanting Pain

So is she really in pain or is she faking. After the car wreck, she complains of pain. Her doctor says she is hurt. The insurance company's doctor says, no, the wreck wasn't bad enough and she is only pretending to be hurt.

There are sometimes objective findings like muscle spasms or herniated discs or even broken bones, but a lot of the claim depends on whether or not the complaints of the patient are true.

Then there is the other side of the story. The employee who fell at home in the bathroom, but won't admit to being hurt for fear of losing the job. The athlete who denies an injury.

So, once we develop these face reading skills, can we tell who is in pain and who isn't? I think I can see pain in a client's face. (Yes, yes, Kathy, I know I think I can do anything, but I am really just full of......) I look at their eyes and if the muscle around the eyes are contracted (These as we will discover are the orbicularis oculi.) and there is extra moisture in the eyes, they are really in pain. Of course, I have no ideas whether this scientific approach produces false positives or false negatives, but I do think if I see it, a jury sees it also and will agree with me the person is hurt. For a long time, this is how I have picked the cases I want to try, regardless of what the medical records say.

My main sources on reading faces deal mainly with acute pain and so they describe a stronger reaction.

Darwin starts with animals and notes the writhing around "with frightful contortions" and "piercing cries or groans." Almost every muscle is brought into action and "with man the mouth may be closely compressed" or with lips retracted and teeth clenched or ground together. Like the "gnashing of teeth" in hell.

The eyes stare wildly, the brows are heavily contracted, perspiration bathes the body and drops trickle down the face, the nostrils are dilated and often quiver, and the breath is held until the blood stagnates in the purple face. Pain starts as stimulate and excites to action, but if severe, soon induces extreme depression or prostration. So says Darwin.

My face artist, Faigin, breaks the face down into parts.

Eyebrows: The entire brow is lowered, especially the inner corner which is sharply downward. There is a roll of skin piles up above the eyebrows (The action of the corrugator muscle).

Eyes: The eyes are reduced to a single line by the compression of the orbicularis oculi. The stronger the action, the straighter the line Faigin draws to show the eye.

Mouth: Either opened in a clenched-teeth grimace or opened in a shout. The upper lip is stretched upward and outward. (Action of the risorius/platysma and levator labii superioris).

Signature Wrinkles: Crowsfeet with the lower lid folded, star-wrinkles from the inner eye, vertical lines between the brows and a joined crease from nose to chin.

The face scientists with their FACS testing say the bulk of the information about pain conveyed by facial expr4ession is represented by 4 actions: brow lowering, orbit tightening, levator contraction and eye closure. (The levators are on the sides of the nose in three different branches under the eye orbits).

Facial expressions can be used to measure pain in infants and senile patients who cannot express themselves.

The scientists also find different face muscles involved with different types of pain: electric shock, cold, pressure and pain resulting from cutting off of the blood to a nerve.

The scientists took a bunch of back patients and then manipulated the leg to make them hurt so they could observe pain. They also told them to fake a facial display of pain. The patients could mask or hide pain and they could voluntarily make painful expressions that "tended not to differ qualitatively from the genuine display but was more vivid or intense."

Faked pain expressions were much like genuine pain, but they were more extreme and had the added factor of AU12, the lower lip pull, in which the lower lip corners are pulled back and upward. Genuine pain tended to blink more than faked pain. When trying to mask pain, the patients could disguise all of the symptoms except AU7, the tightening of the eyelids, narrowing the eye opening.

The hardest part to fake the pain or hide the pain is, then, in the eyes.

Dear Raulito, please give a message to our new President if you see her.

Well, Raulito, this arrest of the Women in White is not good news. That's fidelista stuff and we need to turn over a new leaf. While you are at it, I suggest you go ahead and cut loose all 75 of the dissident husbands.

We want a new level of tolerance to go along with our distributism. After all, I'll bet when each of those husbands gets his own little plot of land, gardening will become more interesting that protest and with all of the changes you will be making, there will be little to protest against.

I know, I know, George W. and his predecessor have their own violations. I have met with protesters who spent six months in the Federal Prisons for protesting at the School of the Americas.

And of course the Berrigan Brothers. And all of those conscientious objectors.

And then there are those reservists and soldiers who change their minds about going to Iraq. Some were recruited as minors.

I sometimes teach with one of Mumia Abu Jamal's lawyers.

Yes, Raulito, it is true, the Human Rights Watch faults the United States for Guantanamo, torture, secret prisons, detainee abuse, incarcerating a bigger percentage of the our population than anywhere else, death penalty, juvenile life without parole and abusing the rights of non-citizens. Whew.

Cuba, though, appears to have the worst record in Latin America. You have the death penalty and bad prison conditions like us, but Human Rights Watch gives you bad grades on other things:

Cuba remains the one country in Latin America that represses nearly all forms of political dissent. There have been no significant policy changes since Fidel Castro relinquished direct control of the government to his brother Raul Castro in August 2006. The government continues to enforce political conformity using criminal prosecutions, long-term and short-term detentions, mob harassment, police warnings, surveillance, house arrests, travel restrictions, and politically-motivated dismissals from employment. The end result is that Cubans are systematically denied basic rights to free expression, association, assembly, privacy, movement, and due process of law.

I highlighted that second sentence, because I want you to know everyone is hoping you will show Fidel how it's done.

I also know that George W. has been unwilling to talk to you, but maybe a little more distributism and some fewer long-term and short detentions will make it less embarrassing to hang out with you.

Hillary and Obama have both said they (with conditions) they will talk to you. And Nixon went to China; so maybe McCain would work things out with you.

If you see any of them, would you mention the problems we have with people drowning trying to cross the river near Brownsville and the tent city in Raymondville and all of these death penalty prosecutions in Brownsville. We could really use some help.

On Hobbes and Kropotkin

Maybe the political world is divided into a Hobbes-Kropotkin split when judging human nature.

Hobbes thought there would always be shortage of resources so a war of all against all would make life "solitary, poor, nasty, brutish, and short."

Kropotkin said mutual aid between members of a species, including people, would give to life "the possibility of attaining old age and of accumulating experience, the higher intellectual development, and the further growth of sociable habits, secure the maintenance of the species, its extension, and its further progressive evolution."

If you see people as Hobbes does, a lot of laws and force are needed to reign in the anarchy.

If you see people as Kropotkin does, society needs to leave people alone and things will be all right.

I loved reading the Leviathan. That old-time English warms me. And it has been a while, but what I remember is a curious journey from Adam to monarchy and why God led in that way.

Mutual Aid, though, seems to better describe the world I see.

And the Bible seems to be more of a warning against monarchy to me than an endorsement.

"When Adam wove and Eve span, where was then the Gentleman?" This would be a starting point for me and then the warnings of Samuel, "If you take a king, he'll take your sons and make them drive war chariots, take your daughters and make them make perfume, take your land, take your money." And then, of course, Jesus. The Sermon on the Mount. The pun on "legion" for the swine being driven off the cliff.

I know people often do awful, nasty things to each other. But I think society engineers much of that evil. Racism, for instance. Slavery had to be enforced by laws and force. After slavery was gone, it took Jim Crow Laws and Anti-miscegenation laws to keep races apart.

Little kids play with each other without noticing race. And without laws, romance comes along without much concern for racial differences.

Distribution of wealth would be much more nearly equal if laws did not support the protection of accumulation of wealth with corporations, inheritance laws, and the like.

Most crime that I see comes from poverty or at least inequality of wealth that causes envy.

Inmates who are completely incapable of functioning in society seem to have no trouble organizing and running in an orderly manner 12-step meetings, Big Book and all.

I have probably gotten to know people in jail about as well as I know people out of jail: there really isn't much difference.

On Nose Pointing and Frowns

For a while in trial advocacy programs there was an inclusion of the occasional anthropologist to help explain juror conduct for the lawyers. I haven't seen much of this in the last couple of decades, but I liked listening to the anthropologists.

I liked anthropology in college, too, and if I hadn't gotten distracted and wound up in law school, maybe I could have been one. Even now when I read a Jared Diamond book, I imagine myself at a young age hunting down Jared and working as an apprentice until I learn the trade.

One thing an anthropologist offered to the trial advocacy students was the pig-nose-pointing observation. In any group, look at where the noses point and you will find the dominant member. This can be important for a number of purposes and most people probably do it intuitively without knowing the rule. The noses are likely pointing to the presiding juror or foreperson. Pick the one to whom the noses are pointing and you know who you must persuade.

Now back to face muscles.

Racehorse Haynes, when asked what to look for in jurors, said, "When he does this, he disagrees with you." Racehorse then made the downward pull of the lips.

Hardly have I had a jury selection since then when I did not notice this reaction to something I said by one or another juror. I accept with Racehorse's reading of the expression. In part, because when seeing it, I will ask the juror, "You disagree with this?" And she will say, "Yes." And it usually emphatic.

The frown or scowl or upside down smile comes from the triangularis muscle, the Downward Puller I, AU 15, "lowers corners of lips." Darwin also calls the pair of muscles depressores angulili oris.

Ekman (our modern face scientist) associates the triangularis muscle with requested actions or simulated emotions. Faigin (our face artist) describes the expression as a frown or scowl. He warns that some people look like they're scowling when they're not. In older faces the creases that extend the mouth corner can look a lot like the way the mouth looks when triangularis stretches it.

Darwin says the muscle expresses low spirits, grief or dejection. He notes that saying a person is "down in the mouth" is the same as saying he is of low spirits. He also relates it the "melancholic insane" saying it is associated with suicide. Darwin also suggests it is a cultural universal based on photographs of "Hindoos, the dark hill-tribes of India, Malays, and...aborigines of Australia."

Dr. Duchenne concluded that this is one of the facial muscles which is least under the control of the will. And that an extremely slight contraction of the triangularis "is sufficient to betray this state of mind."

Faigin says Darwin was wrong in describing the triangularis as the "muscle of grief," because grief also requires another muscle, the mentalis, the "pouting muscle," just above the chin.

Psychiatrists like to know if a patient is suicidal. ("Not on my watch, please.") Mary wants out of the hospital for a day so she can go commit suicide. The shrinks videotape her interview and then after the deed, realize she was lying to them to get out. They watch the video over and over to find evidence of the lies. In a split second before she smiles and answers, they spot a contraction of the triangularis.

This, they believe, is the physical expression of the emotion Mary was quickly masking.

There is Blood on the Moon. Give me that Meat Axe.

This death thing incites such passions. I have spent the day listening to the play-jurors of Collin County Texas insisting on death. They wanted gruesome deaths. "Well, if we don't give them the needle, at least hang them up and let the families beat them to death."

The polls still put the preference for death at 63%.

Lord help me. For once in my life, I wish I were in the majority. Maybe then, I would get the good feeling of co-religionists all around with a shared view of God and the world. We would all be happy together and the shared happiness would be boosted to a new level. Like Alka-Seltzer in a glass of water, we would bubble over with a new enthusiam and join hands in song.

But it is overwhelmingly difficult for me to join in the song of death.

Derrick Morgan lured a friend to his death and shot him six times in the
head. He was paid $6,000 for the murder. It was a matter of the
invisible hand directing the competition for the sale of narcotics.
Sometimes, a lower price is not the most effective means of
competition.
God bless Adam Smith.

I left North Texas for many reasons, but over all it smelled of death. When an attorney friend took too much heroin on purpose, after the good-hearted judiciary refused to allow him to makejail visits in my cases, the bile just wouldn't stop. Father, forgive them, because I am havingsome difficulty along that line.

How many did George H. W. Bush kill in the turkey shoot? To what are we measuring this evil of Mr. Morgan?

So with this love for death, this fascination with death, (Were the Aztecs really like this? Were those grooves in the rocks really for the flow of blood?) how, in the name of faith, hope and charity can we ever pick a jury who will not kill?

Morgan killed and then twelve jurors chose to kill. What has that miserable little life brought us?

For one, we know the insipid questions of the jury, "Can you follow the law?" "Can you be fair?" "Can you f0llow the court's instructions?" should be frozen in the center of Dante's hell with Satan himself. These innocuous, evil, bland, perfidious, common questions mask the death. The sound of gagging and the sight of foaming at Morgan's mouth is drowned and blinded in the boredom of "Can you follow the law."

Evil is bland. And oppressively stupid.

Any juror who states that he or she will automatically vote for the death penalty without regard to the mitigating evidence is announcing an intention not to
follow the instructions to consider the mitigating evidence and to decide if it
is sufficient to preclude imposition of the death penalty.

Even one, then. Even one juror who will automatically vote for death. Who will not consider mitigation. That one, is enough to preclude death.

What in the world is this animal, a mitigation? A mother's glance. That is enough. Mercy. Yes, that too, is enough. Mitigation is a reason not to kill.

Baze v. Rees-- OK, Let the Killings Begin Again

According to family lore, my father (for a little while) served as the physician who pronounced death after executions in Texas. I can't remember who told me this, but it could be true.

I guess the method of execution would have been electrocution at that time (the 50's), so a doctor would not have been needed to help in the killing.

The reason I think it may be true is that he and I shared a couple of characteristics: First, we began with a great sense of personal entitlement that put us above any sense of a morality we shared with the rest of the world. In other words, those rules were good for others, but we were different and not really bound by them. Second, we pushed for the excitement of a new experience.

This combination had special harsh consequences for both of us, he far worse than me, at least so far. We did not accept personal limitations, so we learned them the hard way.

Family lore also says (and he may have told me this, though I don't remember for sure) that he was so sickened and guilt ridden by watching the executions and participating in the pronouncing of death that he never really recovered. Because this was not the only thing that haunted him, it may not have been, as we say legalistically, "the sole cause" of his distress, but certainly a factor.

This whole episode set me fairly early against the death penalty. I remember the argumentwhen I was a little Baptist kid in McAllen that if we execute a criminal, he may not have time for the salvation and eternal bliss that God intended for him. I readily grabbed on this reason to oppose the death penalty when superimposed on the nausea that came with the execution stories.

Now, of course, I am more practiced in reasons to oppose the death penalty, but it remains a visceral reaction first.

The Supremes cavil. Even the dissenters don't appear to flatly oppose the death penalty. One of the concurring opinions discusses the ethical objections of doctors, nurses and EMT in participating in executions and the argument that the refusal of professionals to partipate makes it more likely cruel.

If only my Dear Old Dad had been able to benefit from those professional restrictions to protect him from himself.

What Should We Teach Our Children?

What makes for a good teacher? I was challenged a few days ago to tread on thin ice by an anoynomous commentator. What about the education of children?

I begged Kathy to get in the discussion. After all, curriculum is part of her master's studies, but she was not taking the bait.

How about this for a wild swing at the subject: Through the sixth grade, all of the children will work through Euclid's Propositions, study Greek so they can read Homer, study Spanish so they can read Lope, study French so they can read Voltaire and then read Shakespeare and the Bible. And they should learn to type.

Now, Uncle Toby, a major departure from the subject to warm to the idea of good and bad teachers:

I remember wanting to write my big English paper for the year about Robert Service. It must have been 10th grade or so. I was friends with the "Smart English Student Girls." Not really friends, because they were at a more respectable 10th grade social level, but at least we could talk about poetry. Neither was very good looking by 10th grade standards and I was not even in the game at that age, so there was little to cloud the discussions.

The Daughter of the Banker, Smart English-Student Girl (Please understand, none of us had ever set foot in the British Isles, this was what passed for English language literature in Denton, Texas in the mid-60's. I think they call it language arts now.) told me I could not write about Robert Service. He did not write about nice subjects and besides his poetry was laughable, because it rhymed. The teacher would never allow it.

I can't remember if the teacher allowed the paper or not, but she made it clear that she concurred with the view that Robert Service did not deserve a paper. And I can't remember the teacher's name.

Robert Service was a banker who wanted to be a cowboy or a gold prospector. All of us Walter Mitty's see the world in a similar way. I am a lawyer who wanted to be a prize fighter or a mule skinner. So maybe that was the hold Service had on me.

Our lives overlapped by eight years. He died in 1958. In theory, I could have at the age of seven managed to get over to Lancieaux, France and met the great man before he died.

The things I could have done, if I had just known. I was in Chile in 1972. I could have have gone north and tapped on Pablo Neruda's door. I could have met the great man before he died.

On one occasion I did. C.P. Snow was giving a lecture at the University of Texas in 1969 or 1970. As a freshman student, I had not heard of him, but my English teacher, Maureen McElroy told me to go meet the great man before he died. And I did. (Actually, it was not even a close call because he died in 1980, but it would most assuredly have been my only chance).

Maureen McElroy also taught me about the miracle play. And Marlowe. And Ralph Roister Doister. And Gammer Gurton's Needle

So why was I captured by rhyming poetry? And why was it risible to the Smart English Girls?

Did you know that the Romans did not have rhymes. Latin poetry does not rhyme. This came through the Arabs.

Jorge Green taught me that. And this: "Abenamar, Abenamar moro de la moreria, el dia que tu naciste grandes sinyales abia."

Was it T.S. Eliot who said, "Shakespeare and Dante divide the world between them. There is no third?"

It is like that for me. Maureen McElroy (English Teacher) and Jorge Green (Spanish teacher) divide my little world of teachers between them. There is no third.

Smile and the World Smiles With You

Artists, including cartoonists, know about face muscles. Leonardo da Vinci and Michelangelo both did autopsies. Leonardo did thirty; thirty faces cut up to see how the muscles work.

The Artist's Complete Guide to Facial Expression by Gary Faigin lists eleven muscles of the face that are responsible for facial expression. Faigin gives six basic facial expressions: sadness, anger, joy, fear, disgust and surprise and then teaches how to draw them based on the actions of the underlying muscles.

The simplest, the smile muscle, the zygomatic major has a fixed end attached to the zygomatic arch and a free end attached to the corner of the mouth. Tightening a muscle and pulling the free end toward the fixed end creates a smile.

It becomes more complicated when combined with different brow positions: smile + lowered brow=sly; smile+raised brow=eager; smile + fearful brow=ingratiating; smile + sad brow= happy/sad. Each different brow position has different muscle movements.

Paul Ekman, the scientist who developed the Facial Action Coding Systems (FACS) identifies basically the same six emotions as Faigin, but adds contempt.

Ekman describes the zygomatic major as the Lip Corner Puller and labels it AU12. "Felt smiles" are those that involve the outer portion of the muscle orbicularis oculi, AU6, the Cheek Raiser.

This "felt smile" or "genuine smile" is also called the "Duchenne smile" after a French Neurologist who put electric shocks into people's faces and photographed them to find out how the muscles effect the face. Some muscles are voluntarily exercised (the Lip Corner Puller), some are not (the Cheek Raiser).

Neonates have a Duchenne smile.

We can fake a smiling mouth, but not smiling eyes:

The emotion of frank joy is expressed on the face by the combined
contraction of the zygomaticus major muscle and the orbicularis
oculi. The first obeys the will but the second is only put in play by
the sweet emotions of the soul; t h e . . , fake joy, the deceitful laugh,
cannot provoke the contraction of this latter muscle . . . . The muscle
around the eye does not obey the will; it is only brought into
play by a true feeling, by an agreeable emotion. Its inertia, in smiling, unmasks a false friend.

Darwin used Duchenne's photographs in the development of his arguments about how emotions are expressed in the face.

Now do we get to figure out who the liars are? Ekman concludes, "Some people can indeed detect the differences between different kinds of smiles. We still do not know if training can improve accuracy in distinguishing liars from truth-tellers." So, if we get good enough, I guess, at spotting false smiles from true smiles, we will become human lie detectors?

Wait. Wait. Wait, Dr. Ekman.

Two big problems come immediately to mind. I'm sure there are more. One: the Halley smiling for the camera problem, and Two: the Josh Karton doing Stanislavski problem.

When she was about eight, Halley went on a trip with me. As part of our trip celebration we had a black and white photograph taken. Halley smiled for the camera: zygomatic smile. She didn't show "frank joy," but she wasn't trying to fool anyone. She was just a little girl posing for her picture.

Sometimes we want to smile as a greeting or because others are happy and we don't want to ruin the party. Sometimes we smile to put on a good face for a sad or sick friend. In fact, we are told smiling is a good thing. See, http://www.quotegarden.com/smiles.html.

It can even be tactical: "The robbed that smiles, steals something from the thief."

But the zygomatic smile does not always mean a lie. It can be a false positive for lying.

Problem two is the Josh Karton problem. My acting teacher for about twenty years. (I'm not an actor, so this is a whole different story). Josh uses the "system" of Constantin Sergeyevich Stanislavski. When he expresses joy, he feels joy. He uses his own memories to naturally express emotions.

I have not noticed Josh's orbicularis oculi when he smiles, but I'll bet he can feel joy no matter what he is saying.

The Duchenne smile does not always mean the truth. It can be a false negative for lying.

Those are pearls that were his eyes: /Nothing of him that doth fade

OK, Readers True, back to the face.

My niece Ana is an engineering student at Carnegie Mellon. The picture you see at the right is an example of work being done there that has the potential to make fine measurements of different parts of the face and face movement from videotapes.

Other attempts have involved maybe a hundred dots on the face that are monitored by software that measures changes.

There are a number of security companies that are hawking products that are intended to allow videotapes of crowds to pick out criminals. These seem to not to have been particularly successful yet, but the technology continues apace.

I was first exposed to the IDENT system for fingerprints about ten years ago when I started representing people accused of illegal entry into the United States. My first reaction was to have my clients refuse to incriminate themselves. How in the world would they ever prove who this guy was and that he was a Mexican national? Well, as a seasoned Assistant US Attorney showed me, they had solved that problem: Automatic Biometric Identification System (IDENT) using automated fingerprint identification systems (AFIS).

Every illegal alien would get each index finger swiped in a machine that recorded it. This then could be compared against a database (actually several databases) of other fingerprints to see if the alien was a recidivist or had a criminal history.

The old INS had been experimenting with this system in 1994 and by the time I was exposed to it in 1998 it was hot stuff.

Decades of success in just lying about your name and age ran head on into this new technology. (Can anyone imagine the plot of Les Miserable today with IDENT? Jean Valjean would never get the chance to reform and Javert would be replaced by a file clerk).

Now I love cool new gadgets and technology. I try to get the latest stuff whether or not I can afford it or figure out how to use it.

But advancing technology certainly changes old ideas about fresh starts and second chances. It also makes possible crimes of previously unimaginable magnitude.

I am still getting my mind around the complicity of New York based IBM in the holocaust. Without specially New York designed machines and punch cards to keep track of and route Polish Jews. They calculated rate of deaths per square kilometer due to progressive starvation and the number of Jews to be transported to the death camps. They kept tabs on trains dispatched to and from Auschwitz and Treblinka.

Says Robert Wolfe, the foremost expert on Nazi documentation and formerly chief of captured German records for the National Archives: ``For those who have complained that the proof is not there, this new evidence gives refutation. The juxtaposition of all these sources -- the new German documents, Justice Department records, the IBM files and eyewitness sources -- all together indicate it was not just trading with the enemy, not just IBM and the Third Reich. This is the proof that IBM enabled the Holocaust. The connection to New York is now proven.'' (Click on the title for the citation).

IBM ENABLED THE HOLOCAUST! My Sweet Lord. Why isn't this big news and shocking to all? Why isn't this part of the culture of understanding corporate evil? Why hasn't this monster been destroyed by Justice (Department of) or at least by justice? Why has not the wrath of an angry God ripped Big Blue asunder?

So my love of the new technology always comes with a queasy feeling. What is the human cost to the IDENT system alone. One anti-immigrant website argues there are more than 366,000 incarcerated illegal immigrants. http://immigrationcounters.com/

That may be high, because the Justice Department numbers look like they are closer to 200,000. In any case, the IDENT system has enabled a new efficiency that allows incarcerating huge numbers who w0uld previously have been sent back, unidentified.

I am no longer able to hear about or meet people incarcerated for immigration offenses without seeing in my minds eye, also, young wives and children who are now left to destitution. (Little Cosette cannot be saved by Jean Valjean because he is in Three Rivers federal prison). I know about them because they call and write and visit me. They wait out in the hall at court. These, Readers True, are real people and it is hard to meet them and not have the flesh crawl every time one the young men they depend upon gets duck-walked away in chains.

Automated Biometric Identification Systems for the face are now here and will soon be highly efficient. For a while, glasses or a new mustache would fool the systems, but now some of the new 3-D systems claim they can make an identification even with a stocking over the face and sun glasses.

The data bases for Illegal Entries have been collecting photographs from the beginning. But this is a sea change. Soon it will be possible to take photographs of crowds and identify everyone.

It will also be possible to sort these based on age, gender and race, prior criminal history, income level, house value, employment history, disease history, book purchases, credit card expenditures.

It will be possible to correlate the face with automobile ownership and travel history as recorded in GPS systems. And cell phone use as shown by tower locations and with searches of key words used in the conversations. And e-mail communications based on key words used and internet search history.

Also, check another dimension noted by Mr. Kurgan in his blog for today: http://andyoubrutus.blogspot.com/

If the FACS develops to its full promise, it will be possible to pick out who is worried or frightened or angry. And all this from a videotape of everyone at a football game or a protest march.

Just think what the Nazis could have done with this neat technology.

Raulito Supports Private Home Ownership!

Raulito has taken the next step upward into distributism. The Cuban government yesterday passed regulations that acknowledge the right of state workers to live long term in their houses and pass them to relatives after their death.

The New York Times opines, "The decision seemed to inch property rights forward...." The newspaper does offer the move "stopped well short of allowing the unfettered purchase and sale of private homes."

(Raulito: please note the new posting for a blogsite devoted to the ChesterBelloc Mandate. I am just beginning to review it and we need not swallow the whole pill, but we can seek some guidance. I do note an unnecessary hostility to Darwin, so we may have to rewrite or challenge certain parts).

Now, Raulito, that we have moved toward private ownership of land, what should that ownership look like? Should we move to the "unfettered purchase and sale of private homes?" What if, for instance, Walmart was not satisfied with a mere monopoly of retail sales and jobs and decided to buy up all the houses. They certainly could go a long way in that direction. Would that "unfettered purchase and sale" be OK?

I think, Raulito, you may want to prohibit corporate ownership of land.

Maybe short-term corporate ownership would be OK until a house is finished and may be sold, but long term ownership would be dangerous. I mean, given a chance, corporations could buy up all the water, oil and gas and air. Yeah, I know corporations owning the air may seem funny, but remember when potable water came from the tap and you did not have to buy it from the Coca Cola Company?

Certainly, anyone actually living in a house should have a valid title and anyone buying a house with the intention of living in it should be able to take valid title.

It would also seem reasonable that until everyone had someplace to live, no one should have three or four houses.

The government exercises claims for eminent domain to take title to property they want. Just ask all those folks who are about to get a wall through their backyards. The government can even now exercise eminent domain for the benefit of private building projects. (Kelo v. City of New London).

Why can't we have restrictive covenants in deeds allowing transfer based on human needs? I mean, we have them for all types of other silly things like, brick versus wood siding and wooden versus hurricane fencing. We used to allow them to keep out unpopular races. We still use them to keep out children. (Can this possibly be Right?)

Why not establish some principles of private ownership of land and houses: Human beings over corporations. Children, handicapped and infirm over healthy adults. Habitation over commercial use. Homeless over summer house. Bigger houses for big families, smaller houses for smaller families. Something along those lines.

I know this is very vague, but my hunch is that some real estate lawyer legislative draftsman type has already figured out how to do it.

Then allow a human being to file for human eminent domain.

Hang in there, Raulito, I am sure you and me and our fellow distributionists can figure this all out.

On Sumptuary Laws, with apologies to GOAB

And now for the Sumptuary Laws.

I was on a steady course of examining the secrets told by the face about the emotions, when I was diverted by a glancing blow. One commenter, carrying the moniker of "Anonymous," suggested that GOAB would not have wasted his time with such trivialities as the particularities of some disapproved French Law. I replied, "But he did. See his essay On the sumptuary laws."

To make sure I was right about that, I reread the essay. Now, of course, I want to write about the sumptuary laws. (Yes, ML, again, mimetic theory). (No, Raulito, I am not yet advising you bring these to Cuba; right now we are only exploring the idea). (Yes, Grasshopper, I will return to the task at hand soon, very soon).

Sumptuary Laws restrict certain types of people from buying certain kinds of things, like clothes or food.

In Ancient Rome Tyrian Purple dye is said to have been first restricted to victorious generals. Later even beardless child Emporers took up the habit, but it was not supposed to be worn by mere wealthy merchants.

The dye was expensive because it was made from the mucus of certain marine mollusks and thousands of the little creatures were smashed to make a gram of the stuff. A Phoenician is said to have figured it out when his dog was out cracking the shells and eating mariscos when the dog's mouth turned purple. The Phoenician Kings grabbed it as their royal symbol and kept the secret of how to make it as long as they could.

Once the Phoenician Kings had it, the Roman hot shots had coveted it as well. (Yes, again, ML). Part of the reason was to make sure the right people enjoyed their fair share of toadying. Because sycophants were much more readily available than mollusks, laws were needed to make sure the merely wealthy did not cut in on the action.

I have to think that an ulterior motive was to keep all the good Roman hard cash from being shipped to the Phoenicians for such a frivolous purpose.

The French had their own restrictions saying, according to GOAB, that none but princes, "shall eat turbot, or shall be allowed to wear velvet and gold braid." Turbot, it seems, is a flat fish related to a flounder. (Cap'n Bob, Cap'n Bill, this would be your arena).

Although GOAB did not mind having ways to distinguish between the classes, but he did not like these laws:

The way in which our laws try to regulate vain and insane expenditures for the table and for clothes seems to be opposed to their purpose. The real way would be to engender in men contempt for gold and silk, as vain and useless things; whereas we increase their honor and value, which is a very inept way to make men lose their taste for them.

GOAB saw it as a simple matter. Kings and princes could abandon these expenses and within a month everyone else would imitate them.

He suggested that the law should restrict these expenditures to "mountebanks and courtesans." GOAB was following the lead of a Greek lawyer named Zaleucus who drafted an ordinance saying that, a free woman may not be attended by more than one chambermaid unless she is drunk. Nor may she wear gold jewels about her person or an embroidered dress unless she is a public whore. And no man, unless he is a pimp, is allowed to wear a gold ring on his finger.

(If there are any Wesleyans out there, remember the similar theme by John Wesley: "I have one word more to say to parents; to mothers in particular. If, in spite of all the Apostle can say, you encourage your children by your example to "adorn" themselves "with gold, or pearls, or costly apparel," you and they must drop into the pit together." I'm not a Methodist, but if John Wesley feels this strongly about the issue, gold, pearls and costly apparel are off my shopping list). (Pardon me, Uncle Toby).

What if we brought a Zaleucus ordinance to our own conspicuous consumers? Only drug dealers, prostitutes and procurers will be allowed to purchase or drive expensive vehicles. Private yachts and jets are also restricted to drug dealers, prostitutes and procurers. At the airplane or yacht dealership (is there such a thing?) the purchaser would be required to sign a statement, "I affirm that I am a drug dealer, prostitute or procurer and will use this expensive means of transportation to entertain customers."

If you see a monster luxury Lexus SUV, it would be polite to tap on the window and say, "Excuse me kind sir, but I suffer from the vice of drug addiction. I see from your car, you are a dealer. Would I be able to purchase an eight ball, please?" Or, "Yes, kind lady, I see from your car that you are a prostitute. I only have $50, but do you suppose....?"

Not everyone would follow the law of course. There would be certain sheep in wolves clothing who would pretend to be drug dealers or prostitutes or procurers so they could drive the expensive car. Then the gossip would change when they dropped their kids off at elementary school. "Those phonies. Look at the car. He's not really a drug dealer, but secretly owns an automobile dealership. And she's not really a prostitute, but owns a boutique on the Island." That sort of thing.

I know my libertarian friends will argue this is a poor way to address the problem of "vain and insane expenditures." Raulito and I are open to other suggestions.

What is this quintessence of dust?

Now to jump in the deep end without my floaties. The question here is whether we can look in the eyes and see the soul? Or more generally, can we look at a face and read the emotions?

This is the bigger view than the "human lie detector" issue. And it uses only one of the tools the interrogators use to get results. But it is where I want to start. And to paraphrase Old Joe Durham, "My soap. My blog. I'll wash it as long as I want."

Now for my reservations, and they are completely in opposition to each other.

First, maybe I am not smart enough or in possession of the right special skills or hard working enough to learn this stuff. It reminds me of a hundred other projects I have begun that fizzled out. Like the times I tried to teach myself Ancient Greek. Or calculus. Or oil painting. Or sculpting. Or Arabic. Or hypnotism. Or astronomy. Or quantum mechanics. The list goes on.

Second, I am afraid that it is a completely phony area of study. Jay Stephen Gould describes these types of errors in The Mismeasure of Man. Scientists measured a bunch of skulls to find out what a criminal's skull looked like. Then they tried to predict who would be a criminal by measuring different parts of the head. The whole field proved to be both stupid and pernicious.

One other gnawing doubt. What if I do learn it and it proves not to be phony? I get this special vision of the human soul. Then do I end up dieing like Kurtz:

"He cried in a whisper at some image, at some vision,—he cried out twice, a cry that was no more than a breath—'The horror! The horror!'

All right, enough procrastination. We begin as Darwin does, with the muscles of the face. Here the problems begin.

If you can't count them, how do you know what they are? I pulled out my old Anatomy and Physiology Book from my class with Dr. Peña. It lists about 20 muscles, not counting the ones that move the eyeball. Some of those are in pairs.

Darwin says, "Some writers consider that these muscles consist of nine pairs, with one unpaired; but others make the number much larger amounting even to fifty-five...."

Some internet sources list 52. (And a lot of discussion of whether it really takes more muscles to frown than to smile).

To complicate the issue further, Darwin, explains the structures of the muscles differ from person to person. When we are trying to figure out what the face is telling us we run into this problem: "Thus the power of uncovering the canine tooth on one side differs much in different persons. the power of raising the wings of the nostrils is also...variable in a remarkable degree; and other such cases could be given."

Nonetheless, Darwin gives us twelve muscles that he uses to describe the expression of emotion. For instance, this is how the muscles react when a human being weeps:

The corrugators of the brow (corrugator supercilii) seem to be the first muscles to contract and these draw the eyebrows downward and inwards towards the base of the nose.... (This goes on for three pages discussing the malaris muscles, orbicular muscles, pyramidal muscles, and on and on).

If you see all of this, you know a person is weeping and therefore probably, "suffering of the body and mind."

Now fast forward an hundred years and see what this science looks like with modern measurement tools. It has largely been developed by a guy named Paul Ekman.

Subjects were made to to stare into a camera lens to be recorded on videotape. A starter pistol was used for some experiments, but there was a fear the subjects' hearing was endangered. Also, the directional properties of the shots could not be controlled. So startle sounds of white noise were produced electronically, amplified and run into speakers or headphones. Several variations of these themes were developed to distinguish between spontaneous and deliberate facial movements and between emotional and non-emotional facial movements.

Then they had to decide what to measure. Action Units were numbered that described different movements of the muscles. It is a system called Facial Action Coding System (FACS). For instance Action Unit (AU) 1 involves the inner frontalis muscle and the action is "Raises inner corner of brow." These AU's describe things like AU12, Zygomatic major, Common smile and AU45, Orbicularis oculi, Blink or Wink.

Once they decided what to measure, there was the question of how? Two choices presented themselves: 1. "coders" who graded the movements, or 2. Electromyograph testing of the muscles.

Even judging the slow motion videotapes, there was a risk of bias in the measurements. The coders were tested against each other to find out how reliable they were.

The EMG gave a much finer scale of measurement, but apparently it was difficult to measure "spontaneous happy expressions" on the part of a subject who had a bunch of needles stuck in his face.

After enough review of videotapes carefully measuring many different muscle combinations by enough carefully tested coders, finally the payoff: spontaneous happy expressions were more symmetrical than requested actions expressing happiness.

In other words, there may be some sadness in that lopsided grin.

The Holy Grail. The Fountain of Youth.

Yesterday's post brought a serious comment from Mr. Kurgan:

The ability to ascertain deception can not only be learned, but it can almost be near perfected, as a couple of your noted text will reveal. Your inability to do so, based on your personal frame of reference, will not allow you to believe that this is possible. To you, this is not reasonable.

I accept the challenge, Sr. Kurgan. I shall open my mind to the possibility that the ability to ascertain deception can be near perfected.

In truth, I hope this is true, as long as we have a way to find out who has those skills. The fact that I now lack the skills, does not mean I do not aspire to learn them if they indeed can be learned. If I think I have learned the skill, I will likely credit it can be done. Even if I can't learn the skill, if someone else can demonstrate it in a controlled experiment, well, I am much comforted by that type of certainty.

My thought is that this inquiry is not anti-law enforcement, but rather a desire to have a more nearly accurate law enforcement.

DNA and fingerprints are good examples. Both of these tools are misused and misread by unskilled practitioners (remember the guy that got shipped to Spain to answer to blowing up the train based on a bad FBI reading), but, well-done, they have impressive results.

Perhaps twice in the last year, I have believed the system had grabbed the wrong guy. I wanted fingerprints. If we have the wrong one, we want a reliable way to test that. One young man was freed of his charges on the spot when the fingerprint guru (I think from Harlingen PD) showed up and said our man was not who the arresting officers thought he was. There was also about twenty tattoo differences, but we did not need to reach that.

The Innocence Project has shown that more nearly accurate law enforcement can help acquit the innocent. DNA has produced 215 post conviction exonerations. The average length of time served by exonerees is 12 years. The total number of years served is approximately 2,640. Sixteen served time on death row. And to me the most disturbing fact: False confessions and incriminating statements lead to wrongful convictions in 25 percent of the DNA exonerations. (How false confessions come about will be a later discussion).

Differently put, if either a machine or a person can accurately tell truth from lie, that would be helpful. We may produce another 215 exonerations.

Where do we begin? Stan B. Walters in his Principles of Kinesic Interview and Interrogation begins with the following:

1. Darwin says, "Repressed emotion almost always comes to the surface in the form of body motion."
2. In general, human beings, including investigative interviewers, do a poor job at spotting deception, with the results being little better than chance. Walters cites (Ekman, O'Sullivan 1991).

Walters then give three reasons for the failure of people to accurately identify deception:

1. Judging on verbal and non-verbal behaviors that are not reliable cues to deception.
2. Being unaware of the cues that do have a higher incidence during deception.
3. Making bad judgments because of the interviewer's preconceptions about the subject's likely credibility.

In other words, Walters thinks most everyone gets it wrong now, but with the proper training, the problem can be fixed. This is the premise I want to explore.

Before getting there, though, with a compulsive rejection of secondary sources, we should find out what Darwin really said.

Before We Get To The Waterboarding

A standing joke among criminal defense lawyers is the perspicacity of arresting officers in finding probable cause to search a truck or car for contraband.

"I suspected he was carrying drugs, because he would not look at me and the guilty avert their eyes." Or, "I suspected he was carrying drugs, because he looked right at me and that is what drug dealers do to avoid suspicion."

"He acted nervous." Or, "He acted too calm for someone who had been stopped by the police."

And the one I like: "He only had one key with him, and that is typical of drug dealers." The first time I heard that I was in the courtroom with only one key with me.

Many officers clearly have better noses than bloodhounds:

"I smelled the strong odor of burning marihuana." And, "I smelled the distinctive odor of wet marihuana."

And another favorite. "The car was empty, but I could tell it had been abandoned because of the smell of illegal aliens." I prepared a cross-examination on this to test the officer's nose on distinguishing between an illegal alien or a permanent resident or merely a laser passing card. Also, I thought it would be instructive if his nose could tell whether it was a Mexican illegal alien or a Central American illegal alien who might have a right to sanctuary claims.

At border crossings, a similar phenomena occurs in the claimed ability of the agents to tell a truth teller from a liar.

The typical statement: "No, I didn't know there were ten kilos of cocaine welded into the gas tank of the car I was driving."

The feds do not audiotape or videotape interviews, so there is always a dispute about what was actually said. If two officers are present, their versions will differ slightly. And then the accused will have a different version. And then there will be a dispute about what was written down and when. And how it should have been translated and if the officer actually understood.

The officer at trial will want to testify, "He hesitated and then stammered in his response, and moved his hand in a characteristic evasive manner, so in my experience, I could tell he was lying."

Just like the movie in which the prospective father in law claimed he was a human lie detector machine.

The inquiry to come, si Dios quiere, Readers True, is whether a lie detector machine or a lie detector person can really tell if someone is lying. This is of interest to me, naturally, because if you can tell when someone is lying I want to be able to do it for the purposes of judging a witness If the claim is just hogwash, I want to be able to show that during cross-examination.

In truth, I don't want to know if my friends are trying to protect me from an ugly truth, so I have no desire to apply the skill in personal life.

However, if a Javert or a Flambeau or a Monk can read the liar, it would be nice to find out. On the other hand, how do we distinguish that officer from Barney Fife and Fearless Fosdick when they come to testify?

For those among you who sit on the front row and raise your hand to be recognized, I offer the following texts in preparation for these (occasional and intermittent) sessions:

The Expression of the Emotions in Man and Animals by Charles Darwin.
Interrogations, Confessions, and Entrapment edited by G. Daniel Lassiter.
Never be Lied to Again by David J. Lieberman.
Principles of Kinesic Interview and Interrogation by Stan B. Walters.
What the Face Reveals edited by Paul Ekman and Erika L. Rosenberg.

A Scratch, a Scratch: Marry, tis enough.

I did a couple of hours of jail therapy today. That is, I made a couple of long jail visits to clients for interviews to prepare for sentencing.

No matter how wrapped up I am in my silly, little problems during a day, once I have made the trek into the jail and spent an hour with the guys I get a sense that my own problems are, well, little and silly.

Let me tell about Diosdado (not his name as you might imagine). Diosdado, in passing, when asked about his scars, mentioned he had a "little" knife scar on his chest. He then demonstrated about a three inch scar.

(BENVOLIO

What, art thou hurt?

MERCUTIO

Ay, ay, a scratch, a scratch; marry, 'tis enough.
Where is my page? Go, villain, fetch a surgeon.

ROMEO

Courage, man; the hurt cannot be much.

MERCUTIO

No, 'tis not so deep as a well, nor so wide as a
church-door; but 'tis enough,'twill serve: ask for
me to-morrow, and you shall find me a grave man. )

In what type of world is the three inch knife wound only mentioned as an afterthought? Diosdado was born on the Mexican side of the border and carried to West Texas by his Dad at the age of three. When he was about nineteen he was arrested for graffiti. The city fathers of the small city had decided to crack down on gangs and therefore cracked down on tagging. So, an act that during kinder times would have been viewed as a prank and punished lightly if at all, became a felony. Felony probation. Revocation of Probation. Revocation of Permanent Resident Status. Deportation. Illegal reentry. Another felony. Another deportation. Another illegal reentry.

So now after about ten years of incarceration, he is looking at more time. And the instrument of his most serious crime was a can of spray paint.

"My Dad took me to West Texas and all I got was this lousy knife scar."

Of the Disadvantage of Greatness.

Why not aspire to greatness? Especially when young, why not decide to be CEO or President of Something or Congressman from Somewhere or Lord Mayor of London?

Why can't I sleep on silk sheets, eat salmon roe and wear diamonds the size of horse-dung? Why can't I have a trophy car, long and sleek and maybe a horse or dog bought from the very cover of the Horse and Dog Lovers Gazette?

Or a jet. "No, damn it, I don't want the King Air today. Get the Hawker ready."

At my age, rejecting greatness has a faint odor of sour grapes and laziness. But looking back, I feel blessed to have failed in all of my periodic spasms of ambition.

As always for me, GOAB leads the discussion on this issue (his essay is hidden under the title). By the way, for all of you Montaigne lovers, although the link provides a reference to a different translator, my favorite is one Donald M. Frame. This version of The Complete Essays will be available at the Brownsville Public Library just as soon as I return it.

GOAB immediately acknowledges that he is ill-suited for the pursuit of greatness: "To eschew greatness is a virtue, its seems to me, which I, who am only a gosling, could attain without great striving." Yes, the laziness factor. This then, in moderation, is virtue in itself. If a little Sloth can curb a great deal of Pride, Avarice and Lust, how can it be all bad?

He then gives the proper means of growth: "When I think of growing, it is in a lowly way, with a contsrained and cowardly growth, strictly for myself: in resolution, wisdom, health, beauty, and even riches."

And then to the jugular: "But that prestige, all that powerful authority, oppresses my imagination."

GOAB then goes forward with the many disadvantages of greatness: Your jokes are always funny and your advice is always wise. And the only skill you can develop is managing horses, because they, at least, will not let you win.

He shows that greatness in itself it to be avoided, and gives the reasons why.

Shakespeare also makes the point in Henry IV, Part 2. King Henry says:

How many thousand of my poorest subjects
Are at this hour asleep! O sleep, O gentle sleep,
Nature's soft nurse, how have I frighted thee,
That thou no more wilt weigh my eyelids down
And steep my senses in forgetfulness?

And then,

Canst thou, O partial sleep, give thy repose
To the wet sea-boy in an hour so rude,
And in the calmest and most stillest night,
With all appliances and means to boot,
Deny it to a king? Then happy low, lie down!
Uneasy lies the head that wears a crown.

Even if we cannot accept wholesale the argument of GOAB and King Henry that greatness in itself is not worthwhile. Certainly, the easier argument is that life is just too short to bother.

Why isn't there more advantage to wealth and power in life? It is the problem with death. As G.K. Chesterton describes in one of his Father Brown stories:

"There is in the world a very aged rioter and demagogue who breaks into the most refined retreats with the dreadful information that all men are brothers, and wherever this leveller went on his pale horse it was Father Brown's trade to follow."

If You Love Freedom, Thank a Librarian.

I got a ticket from Harlingen in the mail today for $75.00 for running a stop light on March 26, 2008. Of course, I promptly paid it, as I always do during those occasional periods when I have enough cash to pay them. Otherwise I become self-righteous, innocent and decide to demand my Texas Constitition-guaranteed jury trial.

The technology was really pretty cool. It had a picture of my no-longer-new Hyundai with a nice view of dents on in the rear. (It did not, however, catch the dents on the two sides). A tattered red bumper sticker quoting a former pope was stuck to the rear window. The license plate was mine. And you could almost make out the silhouette of the driver.

I say almost, because you see, I was not in Harlingen March 26th. In fact, I struggle not to go north of 802. I've never known anything good to happen that far north. I know Freddy Fender was from San Benito and that pretty well redeems the city, but Harlingen--I just can't think of anything.

I will go to the airport in Harlingen if I am facing really bad news that will make me actually fly somewhere, but I would rather drive a range of about ten hours than get on an airplane, so I do not exactly rack up the frequent flyer miles. In fact, I don't think I've gotten a free airplane ticket in ten years. I'll also go up to Raymondville for jail visits, but I hardly ever leave the main thoroughfares.

Mere work will not force me to go further than Raymondville. We are talking about death, marriage or birth (not mine for any of the three) and not much else.

So you can imagine my surprise to find I had been ticketed in Harlingen. And this on a perfectly good day when I most likely would not have left the house or driven, much less to some frightening northern city.

As you might guess, it wasn't me. Though I have not yet conducted the cross-examination, that week was Spring Break, Kathy was not teaching, her car was in the shop and believe I have some evidence she went to Harlingen to a stained glass shop in my car. She must have also busted a stop light, but since I was not there, it will be hard to argue against this allegation.

OK. Maybe a small thing. My car commits an offense, maybe, when I'm not there and I am responsible for paying the fine. (Anyone who thinks there is a chance that I might suggest Kathy pay the fine has clearly not been married as long as I have).

But where is my culpable mental state? I mean if I commit a criminal act don't all the various theories of law require I know I've committed a crime?

Unfortunately, committing a crime without knowing it is increasingly common. I represented a high school student who got in his Dad's car and drove it to school. The Dad had been repairing the upholstery in the back seat and left an unopened beer on the floor board. Sniffer dogs, parking lot patrols or other devices somehow turned it up while the student was in school. Zero Tolerance!! So the student, though not a great student, but nevertheless college bound, finds himself sentenced to 30 days in an alternative school penitentiary. We sued and then compromised.

Another case involved the dogs alerting to a girl's trunk at school. It turned out she had a sack of dog food in the trunk.

In theory, a Mexican National could be kidnapped and carried in a trunk into the United States and he might be guilt of illegal entry, because the crime may not require a culpable mental state.

I had a client accused of exporting legal cars, but not following the (brand new) regulations governing the paperwork. Knowledge of the law is not required for the crime and some laws are so obscure, no one knows them.

Maybe it's just that I am a relic of past days that make me think we should have some intent to commit a crime before we become criminals. Thirty five years ago, knowing you were committing a crime before you were prosecuted was a clearly defined right. But that's not the way it is now.

When we let rights slip away, they don't come back without a fight. And we just seem to get used to it. I had a friend once who argued that hell was really impossible because the idea of eternal suffering didn't make sense: after a while, you would get used to it.

I remember being shocked when I first got searched before I got on an airplane. Then I was shocked when I first got searched going into a courthouse. These things don't shock me anymore. But then, going on an airplane or in a courthouse was more or less voluntary for me.

What about all those jurors who are required to go by law, but can only go if they are searched? How are they "secure in their persons?"

We now expect to have our phone records given to the government, videotaping anytime we are outside of home, fingerprint taken to cash a check and blood taken if we drive. I know there is a good argument for each of these, doesn't anybody else feel just a little bit violated? Almost anyone in uniform can walk up and demand to see your ID. School lockers and car trunks at school and your car as far north as Sarita can be searched. And that's for the citizens.

Employers demand polygraphs to get or keep your job. Getting a loan, health insurance, a government job can be even worse. "Mr. Jones, ever committed adultery?" "Ms. Smith, ever had an STD?"

I was at a seminar a couple of weeks back and one of the speakers made this point: who can we think of in the last thirty years who has stood firm rather than give up civil liberties? Only the librarians. God bless them.

Communist Cuba Dabbling in Distributism

Bloggers (the few I have met and as best I can tell from reading) seem endlessly fascinated by whether and if so, how much, their blog is being read. I confess this fault. I put one of the free counters on the blog and it is something of a utilometer of my personal happiness. Each little tick of the counter is another little squirt of dopamine.

More sophisticated bloggers apparently have more sophisticated counters and get additional squirts from learning how widely read they are, based on area codes I guess.

I know this all runs counter to my blogging goal as taken from the Granddaddy of All Bloggers:

"I have no thought of serving either you or my own glory. My powers are inadequate for such a purpose. I have dedicated it to the private convenience of my relatives and friends, so that when they have lost me (as soon they must), they may recover here some features of my habits and temperament. Thus reader...you would be unreasonable to spend your leisure on so frivoulous and vain pursuit."

Indulge my pride, though as a tell you based on certain empirical evidence I have a celebrity reader. It was only Friday past when I urged an economic system based on medieval Catholicism, distributism. Two days later, I see the headlines, "Cuba to Lend Land--In a bid to boost agricultural production, Raul Castro's government is lending Cuba's unused land to private farmers and cooperatives."

It is obvious to me: Raul Castro has been reading my blog. Not only that, I have converted him to distributism. Let me say it again: RAUL CASTRO IS ONE OF MY READERS!!!!

Now it is important I carefully cultivate this first new convert to distributism. First, how to address him? We distributists are anti-hierarchical and I hardly think either Mr. President or General Castro are appropriate.

Nor can I bring myself to say, "Comrade." First, I don't know if this will be part of the distributist tradition. I have not seen the word yet in Chesterton or Hilloc. Also, since we have not met, this may overly familiar. On the other hand, "Raul" or even "Raulito" feels OK, for some reason. Maybe because of that guy who sells the eye surgery on TV.

I am so happy to have you on board, Raulito, that I will happily serve as consultant. To that end, I will be reading medieval Church history and economic and legal forms. More to the point, though, Raulito, I would suggest we approach an appropriate order to come in and help run things. I suggest we avoid the more warlike groups like the Hospitallers of Jerusalem in favor of say, Franciscans or Cistercians.

Now that I know you (Raulito) are a reader, I'll give little hints along the way.

This transition from Cuban Communism to distributism should in some ways be quite smooth, because there are not big landowners with whom we must deal. On the other hand the human rights issues have been a problem in Cuba since they were reported by Bartolome de las Casas, but, hey, human rights is the whole idea behind distributism.

Now if only George W. will start reading.

Saint Peter Don't You Call Me, 'Cause I Can't Go....I Owe My Soul to the Company Store

Big Bill Haywood, in his Autobiography, rejects labor contracts. He tells the United Mine Workers in Cripple Creek, "why enter into an agreement with the mining companies at all--that is a time agreement? Why not be in a position to strike at any time?"

I labored through six hours of contract law in law school and never really thought about the underlying premise of the morality of entering into contracts. In essence, most types of contracts involve a promise to do something in the future. Even putting aside for the moment the problems with adhesion contracts, what about the mere idea of making a promise that binds future actions. Isn't there a problem with this?

Jesus said to to the young man, "If you want to be perfect, sell what you own. Give the money to the poor, and you will have treasure in heaven. Then follow me!"

If he is bound by contracts, the young man must say, "Sorry, Jesus, I can't go. I've got a mortgage to pay, credit card bills to meet, and a six month employment contract to fulfill."

And this may have been what happened because when the young man heard this, he went away sad because he owned a lot of property.

If we enter a contract or promise to behave in a certain way in the future, does this break Jesus' rules of life laid out in the Sermon on the Mount? Jesus says (in one translation), "But I tell you don't swear an oath at all. " Other translations talk about "forswearing" oneself.

What is the difference between an oath that forswears a promise for the future and a contract? Maybe the first has some greater implied seriousness, because it is witnessed by God, but the concept of, in the present, committing your future self to a certain type of action, seems to be the same.

Isn't Jesus giving added support to this position when He says, "So don't ever worry about tomorrow. After all, tomorrow will worry about itself. Each day has enough trouble of its own?"

Contracts always require a worry about tomorrow. That is the whole idea.

And of course, beyond a calling from Jesus, in a more secular context, there may also be a call to the conscience.

For instance we might say,

"I woke up this morning with a clear belief that the rest of my life should be committed to designing and building low cost housing. Anything else would be a waste of my full potential and doing so would be my best chance to reduce human suffering."

Or,

"The muse has moved me and see in my minds eye the Great American Novel that will bring joy to millions and guidance to a nation lost in the wilderness."

Or,

"My young daughter has informed me she is growing up without me and I must stop all I am doing and spend time with her."

But then we remember all of the contracts we have signed and must say,

"No wait. I've forgotten. I need to pay off my Sears charge card first. And the consumer contract on the house siding. And the five year loan on the car. Oh, well. I will stuff away for now this call to conscience thing and this foolishness about living life to my highest potential. Maybe another inspiration will be along in another ten years."

Credit Card Usurers

While my mind is on medieval morality how about a thought or two on the subject of usury?

Mortgage and credit card debt have received a lot of notice recently. The average American credit card debt is $8,000. This is apparently both better and worse than it sounds. Less than half of American households owe anything at all. The bad news is that more than a third with debts over $10,000 have household incomes income under $50,000 and 13% who owe that much have household incomes under $30,000. Same old shaft for the poor.

I have talked to clients for years with horrible debt. I will have a kid come who was in college a couple of years and he somehow has gotten credit cards and run up that $30,000. Plenty of times I have had good, respectable middle class types--school teachers, government clerks, etc. come in with amazing and oppressive debts, all from credit cards.

I don't keep up with the bankruptcy law or file bankruptcies, but my friends who do discuss the increasing difficulty of discharging credit card debt with bankruptcy.

Generally, I have thought bankruptcy is a bad idea. Most people with a lot of debt and no assets don't need it, because there is nothing they can do about it anyway. Those with a little debt a good assets, don't need it either, because usually they can sell some stuff and get out of trouble.

Bankruptcy can be onerous because of the supervision by the trustee and it is easy to get into trouble. False statements in bankruptcy or actions to circumvent the bankruptcy court can be criminally prosecuted by the feds and it is easy to be perceived of having made false statements or taken actions to circumvent. I heard a horror story recently about a woman who was prosecuted after her teenage daughter had used a credit card to make purchases at Victoria Secret that somehow were viewed as unauthorized expenditures circumventing the bankruptcy orders.

I had a client who had three or four worthless old junked cars in his yard that he cannibalized for parts. He was charged with fraud when the FBI found the cars in his name and decided he was hiding assets.

What is the moral obligation to pay those debts with double digit interest rates? Generally, I think it is far lower than most of the other things the client should be doing with the money--like educating and clothing his children.

Credit card companies of course trick their customers. Hidden charges and unilateral interest rate increases often come from fine print and requirements the customer must reject an offer--usually ignored--within a certain time in writing.

Why aren't credit card companies and their officers thrown in jail for this crime of usury? Families are destroyed, futures are ruined by their tricks and lies. Surely, they are a greater social menace than, say, drug dealers or shoplifters.

Why isn't the credit card debt viewed as a debt by a slave to a slave owner or drug addict to pusher would be--void because contrary to public policy?

When I started practicing law, as I recall, Texas prohibited loans for more than 6%. Anything else could be challenged and not paid. Of course a little thing like the Texas Constitution was no match for the power of the lenders and that prohibition is long since preempted by federal law.

Roman Catholicism during the period after 1050 AD declared usury a sin prohibited by the Old and New Testaments. Any interest rate greater than zero was declared usurious. Usurers were refused confession, absolution, Christian burial and their wills were invalid.

Loan sharks (not within the credit card club) get prison terms and in some Islamic countries, caning.

Unfortunately, if you have a big enough lobby, the crime ceases to be a crime.