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Why I am a “Science Denier” (and that is exactly what you want from your criminal defense attorney)

YP pic Science blog

“The impression that serious scientific problems are far beyond the understanding of the average man constitutes a serious obstacle to the growth of this public interest. A caste system of specialists has been created, and it has produced a sort of intellectual defeatism, so that the layman tends to think that the conclusions he can reach with his own faculties are invalid, no matter how carefully he examines the evidence. This is an error that inhibits the spread of scientific knowledge and tends to discourage the recruitment of scientific workers, for every scientist has been an amateur to start with.”

The Einstein-Hapgood Papers, circa 1950s  — Charles Hapgood & Albert Einstein

 

We hear the term “science” almost every time we turn on the news, read a social media post, or surf an article on the internet.  We hear demands from the media and politicians to accept “the science.”  We hear government officials tout their policies based on trusted “science.” We hear friends, family, Facebook cronies, and everyone else scream “science, science, science.”

If we dare question anything pre-cloaked as “science,” they shout us down as “science deniers.” “But wait,” we respond. “We are not denying science.  We just have a few questions.”  It is too late for that.  We are deemed ignorant.  Intolerant.  Stupid and foolish.  Stripped of all credibility forever. “How dare ye question the science!”

Though there are certainly historical examples of this phenomenon, it seems that now more than ever the term “science” is used interchangeably with “truth.”  This is not definition of science we learned in grade school.  It’s a gross distortion, used to avoid true scientific criticism (for whatever reason). And (ironically) this new-fangled version of “true science” often results in the opposite of truth. It tolerates incorrect conclusions, stifles meaningful academic discourse, and stagnates the discovery process.

Merriam-Webster gives us a basic dictionary definition of science: “knowledge or a system of knowledge covering general truths, or the operation of general laws especially as obtained and tested through scientific method.”

The term “general truths” does not mean that “science” is “truth.”  To the contrary, science is the process of seeking truth by formal testing of theories and hypotheses through the scientific method. In other words, we use known general truths to fill in the blanks as we test yet unknown truths.

The difference is significant. Science (in this context) is the process by which truth is found, not truth itself. The traditional scientific method (dating back to Aristotle) mandates that we prove the truth of our conclusions, not presume it.  It starts with a hypothesis.  A question about how or why something is.  We may even have a preconceived notion of the answer (our perceived conclusion).  Then we put it to the test.  We experiment, analyze the results, and discuss the conclusions.  We then challenge the conclusion, torture it, try to break it any way we can. Our motives must be pure. We must seek the truth, not mere validation.  We try to prove ourselves wrong, not right. If the conclusion fails in any way, we go back and alter the hypothesis or start over with a new one.

Even after it is done, it is not all done. The scientific method requires us to invite and encourage others to question our conclusions.  We want them to bring new ideas, new data. The method only works if our peers challenge our “truth.”  Put us to the task of proving it time and time again. In the scientific fields, they call this “peer review.” Instead of dismissing those who challenge us as “science deniers,” we prove them wrong.  We show the world they are wrong.  We explain why they are wrong.  This discourse should be encouraged, not avoided.  Anything less is disingenuous to the truth, real science, and legitimate scientific inquiry.

This is the science of truth seeking. It is driven by human individualism. It encourages the best human qualities (curiosity, wonder, interest) and minimizes the worst (ego, self-interest, greed).

The opposite of the scientific method is ideological validation.  This happens when we seek an outcome based on what we want things to be. It may be inconvenient and annoying to face constant challenges that we know (or think we know) to be ridiculous.  But real science requires (even demands) just that.  Absent challenge and vigorous debate, our conclusions remain untested.  We stay stagnate.  And from the viewpoint of scientific progress, stagnation is the same as regression. When wide-spread public policy (in the courtroom or elsewhere) is driven by this ideological validation, we risk catastrophic consequences.

And think what happens on the other side (the “science denier” side) when we don’t invite or welcome challenges.  Foolish or ridiculous ideas are suppressed without discussion or debate, left to suffer the same ill fate in reverse. They remain untested and unchallenged.  They are left to foster, to grow, and even blossom into full blown “conspiracy theories.”  If we kill the “weed” by logic, reason, and the scientific method, it can never grow back.  It’s dead.  Proven wrong once and for all.  But if we cover it up, ignore it, and hide it behind the proverbial woodshed, the weed grows.  Its roots get deeper.  Sooner or later the weed blossoms, and the conspiracy theories take hold.  Then we have a bigger problem than the inconvenience of a foolish scientific challenge.

Think for a second about the incredible ingenuity inherent in Aristotle’s scientific method. Much like a jury trial in our modern system of justice, Aristotle’s method generates an adversarial process that results in truth.  It encourages growth, understanding, and knowledge. And at the same time, it stamps out the bad or ridiculous theories by natural selection.

Unfortunately, we seem to have turned this whole process on its ear.  This modern version of science is nothing more than ideological validation. It starts with the hypothesis we want, validates it without any real discourse, then definitively proclaims our conclusions to be true science.  We already know what the answer is, and the rest is merely for show.  The conclusion is foregone by self-validation. And to our peers we say, “accept it or suffer the wrath of public ridicule, you science denier!”

But if we are to follow the real scientific method, accepting all challenges, we might wonder where it ends.  How many times must we prove our conclusions?  How often must we prove that 2+2 equals 4?

The answer?  As many times as it takes.  That’s right. Hundreds. Thousands. Prove it until they stop questioning it, then prove it some more. Because if we do not take on all comers, then our “truth” is stagnated. We learn no more. The bad becomes good, the good becomes bad, up becomes down.

Our history is riddled with obvious examples of this. Science once convinced us that the Earth was flat.  It convinced us the Sun followed the Earth (geocentric universe).  We used to believe (by good science) that the Earth was hollow.  The list goes on and on. And it is not just the old and obvious stuff. It is also the cutting-edge stuff.  The stuff of the likes of Einstein and Stephen Hawking. Tell those guys they were “deniers.”  Say that about Madam Curie, who (after confronting the discrimination and shout-downs by the establishment) went on to prove cutting edge theories on radioactivity.  That fact is that we continue to learn new stuff every day. That often comes at the expense of once accepted theories of “science.”

It seems so obvious.  Why not pursue the truth?  Why ever shout down nay-sayers as dreaded “science deniers?”  Why not just prove them wrong?

Use the scientific method to answer these questions.  I hypothesize that money, power, and ego work alone or in conjunction to distort our new view of “science.” And these ugly monsters are at their worst when the government is involved.  I beg someone to prove me wrong.  Please.

When your fearless government leaders enact policy based on science, the last thing they want is proof that their science was wrong.  If that happens, they get blamed for it (ego).  They lose their office (power). And they lose their jobs (money).

Not all government action is corrupt and nefarious from the outset. Bad government policy can start with good intent. And officials can rely in good faith (though mistakenly) on flawed scientific. But once exposed, there is incentive to avoid the criticism.

So rather than admit the mistakes, officials suppress them.  Or better yet, suppress all challenges so the mistakes never materialize. When is the last time we recall a politician admitting that their bad policy was predicated on bad science?  Never. They instead resort to the oldest political tricks in the book–blame the opposition and blame the funding.  It wasn’t bad policy; it was only that they were prevented from doing enough to make it work. They then double down, demanding less opposition and more money. This is the dirty art of politics.

When the science is wrong in a criminal case

The use of bad science is the worst in the criminal justice system, where science is distorted regularly to meet the proof requirements and convict the “bad guys.”

The government has relied on bad science in criminal cases to convict countless innocent souls, and even condemn them to death. From blood spatter to arson cause and origin to psychology of false confessions to forensic interviews of children to Shaken Baby Syndrome. The list goes on and on.  And even when the bad science is exposed, the wrongfully convicted vindicated, prosecutors often cling to the notion that they were right.

Two renowned attorneys (Peter Neufeld and Barry Scheck) put it best when their client was proven innocent (after being identified, convicted, and sent to prison for rape) by DNA.  By all rights, their client was vindicated.  His DNA did not match the semen found on the victim.  It should have been a win resulting in their client’s immediate release from prison.  We might even expect an apology for such a miscarriage of justice.  Nope.  The government stuck by its guns.  “This doesn’t mean the defendant was innocent,” the prosecutor claimed.  “It only means that someone else—an unknown assailant who deposited the semen—was also present with the defendant.”  See, rather than admit they had the wrong guy, the prosecution invented a completely new theory that left room for the defendant’s guilt yet still fit the new DNA evidence.  Neufeld and Scheck later coined this the case of the “unindicted co-ejaculator.” An ironically humorous description, but the case demonstrates the stalwart force of governmental confirmation bias.

At least in this “unindicted co-ejaculator” case, justice was done (albeit late).  Too often, however, criminal defense attorneys fail to question the courtroom science at all.  They bow to the enormous pressure to accept scientific propositions because “that’s the way it has always been done.”  And when good criminal defense attorneys question science, they are shouted down as crazy.  “True believers” in the criminal defense cause (as if that’s a bad thing).  They are ridiculed as quacks and charlatans.  They are accused of using smoke screens, sleight of hand, and hat tricks.

This has happened to me more times than I can count.

I recall questioning the veracity of behavioral “indicator lists” in child sex cases.  It used to be accepted science to conclude children were sexually abused if they exhibited behaviors such as lying, cheating, stealing, acting out, etc.  When I first encountered this, it seemed ridiculous.  The list of behaviors was extensive. Virtually anything a child did could be used to prove behavior “consistent with abuse.” And the behaviors on the list seemed common (at least to me) of many children I knew.  In other words, it just didn’t make any sense.  These behaviors could be used to bolster virtually any accusation, true or not.  So I questioned the science.  And I faced the wrath.  I was accused of being an inexperienced greenhorn. I didn’t know what I was talking about.  This was over my head.  How dare I question Dr. Such-and-Such?  After all, he is the nation’s leading expert.  Several years later, it turns out the indicator lists were debunked. Junk science.  Nonsense.  Yet countless innocent folks are spending life in prison because of it.

In similar situations, I recall questioning the “science” of an arson investigator, that of a child forensic interviewer, and that of a forensic pathologist claiming Shaken Baby Syndrome.  Same thing. I was laughed at, eye-rolled, and ridiculed. Many of these courtroom theories (which were based on “settled science”) have since been proven false.

I have always stood my ground.  When things do not add up, they do not add up.  When they do not make sense, they do not make sense.  Now, as I prepare for the fight of my client’s life, the more I am shouted down for questioning the “science,” the less I believe it.

Maybe I’m just a simpleton, relying on the elementary lessons of my grade school education. After all, as so many have pointed out, I’m not a “scientist.”  That’s true, but it doesn’t mean I’m wrong. And neither were Aristotle, Einstein and Hapgood.

After 25 years in a courtroom, I have honed my ability to question and challenge every assertion, obvious or not.  I have learned not to accept what the prosecution or legal precedent suggests, just because “that’s the way it’s always been done.”  And when it comes to so-called experts in the courtroom, I always question the science.  I always look for logical flaws.  And I never accept anything as gospel just because everyone else does.  I know that true science is not true because of some prior “court system consensus” or because it “sounds good” or “it’s already settled.” True science is void of emotion. It doesn’t shout down the opposition because of some emergency, or because it’s a heinous crime, or because everyone until now believed it.  And it certainly doesn’t show outrage at any suggestion to the contrary. True science defends itself naturally.

My rule is simple.  Question everything. And the more they resist, the more I question. Because that is where the truth (and sometimes a whole lot more) can be found.  That is the adversarial process that still makes our criminal justice system (though necessarily imperfect) better than all others—past and present.

So, go ahead.  Call me a “science denier.”  I’m good with it.  And so are my clients.

 

Stephen E. Palmer, Esq.

Criminal Defense Attorney & Science Denier

 

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