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.

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.

Our Sense of Decency Has Evolved How Far?

The Supreme Court rejected the appeal of Elkie Lee Taylor today. He was a sixth grade dropout who tested 63 on an IQ test that generally considers under 70 as retarded. Unless the manner of execution by lethal injection is thrown out, Mr. Taylor will probably be executed.

In 2002 the Supremes decided Atkins v. Virginia and banned execution of the mentally retarded. Then, they left the decision up to the states on how to determine who is mentally retarded.

Since Texas has only killed 402 since 1982, and 403 seems like a much better number, Mr. Taylor is back on the list.

Texas has an odd way of determining mental retardation if you accept the present position of the Texas Court of Criminal Appeals. We don't need to find out ahead of time if the guy is retarded. Just try him and if he gets convicted then the jury can decide if he is retarded when they are considering sentencing.

The problem with determining mental retardation at sentencing is that the jurors’ values may not comport with a constitutional requirement to spare the mentally retarded. It may be our (America's) sense of decency has evolved far enough not to execute the retarded, but if we get some of those unevolved jurors, they may not be willing to find mental retardation to spare a killer, even if it is so.

What about a dangerous, mentally retarded man who will most likely kill again. The Constitution may now say, "No execution," but the jurors (who have already been qualified in their ability to consider the death penalty) say, "Well, especially if he is retarded, on top of being a dangerous killer, should we execute him."

Justice Brennan discussed this problem in an earlier decision:

“It appears to us that there is all the more reason to execute a killer if he is also . . . retarded. Killers often kill again; [a] retarded killer is more to be feared than a . . . normal killer. There is also far less possibility of his ever becoming a useful citizen.”

In arguing against assessing mental retardation during sentencing, Justice Brennan states, “Lack of culpability as a result of mental retardation is simply not isolated at the sentencing stage as a factor that determinatively bars a death sentence; for individualized consideration at sentencing is not designed to ensure that mentally retarded offenders are not sentenced to death if they are not culpable to the degree necessary to render execution a proportionate response to their crimes.”

So this is still the problem if the death penalty comes from Texas. Just because the shrinks may say the guy tests retarded, the jury may not want to, especially since they will know that it means letting a killer live, retarded or not.

The Supremes did not decide Mr. Taylor should die, they just refused to hear the case. Mr. Taylor may not be too excited about the distinction since he still may end up six feet under. Besides, he has an IQ of 63.

One of the mentally retarded executed before our sense of decency evolved in Atkins is said to have been given the last supper of his choice. He did not eat the dessert. When asked, "why not," he said he was saving it for later.