This morning has been a dose of “what happens when science is not taught in our schools,” as my morning reading careened from probable-cause-creating dogs to various stories about the coronavirus catastrophe, culminating in a discussion with a colleague about our recent mumps mania at the jail, and the need for Senate Bill 938.
Mumps Mania Hits the Fresno County Jail
Around about the beginning of February, I wrote a post about the mumps outbreak in Fresno’s jail, and the knee-jerk reaction that led to the wholesale denial of constitutionally-protected rights to speedy trials, and preliminary hearings.
[T]he Sheriff’s Department had decided not to transport accused people held in the jail to the courtrooms where their guilt, or innocence, is to be decided. The decision affects hundreds of people who have not yet been proven guilty. And hundreds who will never contract the dreaded mumps.
Until local criminal defense attorney extraordinaire—and someone who, I might add, I consider one of my closer friends—Eric Schweitzer, stepped into the fray, the presiding judge had issued an order setting aside the law due to the Great Emergency of the Mumps Outbreak that was devastating
our jail population the rule of law.
Or, more accurately: the judge succumbed to the Mumps Mania.
Eric hired epidemiologist Dr. Remington Nevin to write a science-based report on why this was an unnecessary overreaction, and wasn’t going to achieve the goal of containing mumps, anyway. Dr. Nevin holds board-certifications in public health, general preventive medicine, and occupational medicine. (You can see his qualifications in his curriculum vita to the report.) Dr. Nevin said:
The available evidence indicates there is no valid medical or public health necessity for the implementation of quarantine among the Fresno County Jail inmates in response to the current outbreak of mumps.
Quarantine is not described in publications by either the CDC nor the CDPH as an accepted public health control measure for mumps in jail settings. Instead, these authorities recommend only isolation of those with evidence of disease.
Now comes the Coronavirus Catastrophe, for which the accepted public health control measure appears to be quarantine of anyone who ever thought about someone who might have been exposed, or taken a sip of Corona beer. The stories about this catastrophe worry me so much that I’ve already washed my hands five times since starting to type up this story. I mean, if drinking Corona is so dangerous, what kind of risks am I taking by my repeated typing of the word?
The Real Coronavirus Catastrophe
Frankly, all indications so far show that in the Mumps Mania vs Coronavirus Catastrophe wars, neither threatens to justify media prognostications. Over-hyped coronavirus simply capture eyeballs. The reactions of newspapers and governments have helped fuel what may very well be an unnecessary panic.
For two months now, global health and government officials have been trying to stem the coronavirus outbreak, quarantining citizens, locking down towns and creating triage protocols in hospitals where the contagious, deadly novel virus has taken root.
Unverified, irresponsible reporting—the mainstay of today’s media—has only complicated matters. One story from Italy reports the highest death toll outside China so far: 49 deaths in one day. It’s a modern-day plague, reminiscent of the plague that killed 75-to-200 million people in Europe from 1347 to 1351.
Or maybe not.
[Italian officials] said the number could not be officially confirmed until health officials had “established the actual cause of death”.
The national health institute said the average age of those who have died was 81, with the majority suffering from underlying health problems. An estimated 72% of all those who have died were men.
But, just to be on the safe side, due to the high numbers of 81-year-old men therein, Italy has ordered all schools in the country to be closed for 10 days. Which, of course, should be plenty of time for the coronavirus catastrophe to abate.
The Flu is Still More Deadly
In the United States, according to the National Public Health Information Coalition, the discredited Centers for Disease Control and Prevention, or CDC, illegitimately tries to calm fears by pointing out that the flu still kills more people than the coronavirus. According to them, 20,000 people in the United States have died of the flu just since October. In 2018, 80,000 people in the United States died after coming down with the flu. By contrast, the latest figures from the front in the media war over the coronavirus catastrophe note that at least 19 people have died in the United States since the coronavirus arrived here.
At this rate, coronavirus deaths should surpass those of the flu sometime before the Sun implodes. Or explodes. Or whatever it’s eventually going to do.
One might want to say, “to be fair, we just don’t know yet how deadly the coronavirus will be.” To be fair, we don’t. The numbers are all over the place, and the basis for those numbers in most cases stands on quicksand.
In case it needs saying, that’s the point of my sarcasm.
The story out of Italy mentioned (and linked) above puts out the seemingly outrageous percentages for death from the virus at 4.25% of individuals “confirmed to have the coronavirus.” Another, more believable calculation—from Alan Reynolds of the Cato Institute, which was also discussed and linked above—suggests that, as I’ve already pointed out, the flu continues to be more deadly. And, as the report on which he relied points out,
CFRs seen in individual countries will vary depending on the sensitivity of different surveillance systems to detect cases of differing levels of severity and the clinical care offered to severely ill cases. All CFR estimates should be viewed cautiously at the current time as the sensitivity of surveillance of both deaths and cases in mainland China is unclear. Furthermore, all estimates rely on limited data on the typical time intervals from symptom onset to death or recovery which influences the CFR estimates.
In short, the data on which real science relies is too incomplete and inconclusive to give us any real understanding of the potential threat from the coronavirus catastrophe. Or, as forgotten-President Franklin Delano Roosevelt said, “the only thing we have to fear is fear itself—nameless, unreasoning, unjustified terror which paralyzes….”
Why This Matters to Criminal Defense
This entire fiasco finds its relevance to criminal defense when looking at the larger picture of the Mumps Mania vs Coronavirus Catastrophe.
If the history of our courts, jails, and prisons is any indication, the unreasoning, unjustified terror of the coronavirus will paralyze out criminal “justice” system. Already, prisons like San Quentin lock people away in solitary confinement for the crime of having the flu. They placed an entire cellblock “medical isolation” after finding “two cases of confirmed pneumonia.” The Department of Corrections later said it could not confirm any cases.
Fresno County’s reaction to the minor outbreak of a minor illness at the local jail provides reason to believe that a coronavirus outbreak would not only be handled equally as badly, but with greater force and fear. And while nobody knows the future, there is a near-certainty that sooner-or-later this coronavirus will be found in one or more carceral facilities within the United States. And probably not that far from any of us—both Fresno and Madera Counties just reported their first coronavirus cases.
Scientifically-Illiterate Judges: “Gatekeepers” of Science
Most judges (perhaps nearly all judges) are as ignorant of science as the average citizen. In 1993, the United States Supreme Court decided a now-famous case known as Daubert v. Merrell Dow Pharmaceuticals. Judges must be the “gatekeepers” who prevent junk science from entering our courtrooms. As the Richard Pierce, Jr. wrote in The Regulatory Review in April 2019,
Daubert was a reaction to the well-documented problem of court decisions that are based on “junk science”—opinions offered in evidence by supposed experts but that are not supported by reliable data and analysis.
Unsurprisingly, in 2019, the Court has backtracked on its never-really-serious position that junk science has no place in the law. Equally unsurprisingly, the ruling comes on the heels of an “expert” witness’s refusal to divulge the source of his opinion. He must “protect” the information for his employers.
Three Supreme Court justices expressed the view that the ALJ’s decision to deny Biestek’s application for disability benefits based solely on the unsupported testimony of the vocational expert should be reversed for all of the same reasons that any court would reverse the decision of a district judge in similar circumstances, under Daubert. Unfortunately, they had to express that view in a dissenting opinion.
Although the Biestek case involved an administrative agency, this same issue arises numerous ways within the criminal law arena. Friend and fellow lawyer, Terry Wapner—the go-to guy for DUI defense in Fresno, and upcoming Treasurer and Board Member of the California DUI Lawyers Association—tells me that, for reasons that I find befuddling, an even more perplexing situation exists in DUI defense. What makes it more perplexing is that there have been wins there: courts have ordered the disclosure of source code for breathylizers, but the source code has yet to be disclosed.
The problem is that you can litigate this issue forever and by the time the order comes down there that they have to give me the source code, they will change the model or software upgrade of the machine. Therefore you’d have to litigate it again. My friends who were the attorneys on New Jersey versus Chun or I think it’s Chun vs New Jersey got the order 10 years ago and to this day they’ve never seen the source code.
And it doesn’t end there. “Junk science” is favored by prosecutors and courts alike because it’s easy, it avoids unnecessary investigations, and it convinces the scientifically-illiterate. And because that’s how it’s always been done.
We know that our criminal justice system has relied on faulty forensic science to convict individuals in this country for decades. We know that juries place great weight on scientific-sounding evidence, disregarding all other evidence to the contrary. Our mistakes, which have led to hundreds of individuals being wrongfully convicted and imprisoned, have been proved through DNA testing and exonerations. Still, the law (along with many actors in the criminal justice system) turns a blind eye to advances in science, insisting that it must follow precedent.
Kelly-Frye, and the Expert Cop
This, unfortunately, is deemed to be a feature, not a failure, of junk science in ‘merkin courts. This is particularly true in California, which still relies on the Frye standard, rather than Daubert. As stated in Frye,
Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well- recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.
The phrase “general acceptance in the particular field in which it belongs” highlights a danger. You think this means sociologists, or psychologists, or any other kind of scientist, accepts the deduction. I forgive you.
To muck things up even further, the California Supreme Court in Kelly “unanimously attempted to liberalize the [Frye] standard to permit more novel testimony [a.k.a., “junk science”] into the court system.”
So you would be wrong to think Frye requires the relevant community to be a community of bonafide scientists. In most cases, the particular field in which the junk-scientific statement has gained general acceptance is going to be “law enforcement.” And the “expert” who will testify will be a cop, despite the fact that “[i]n almost every case, the investigating officer’s expert qualifications are dubious.”
But “dubious” is good enough for just about any judge I’ve ever known.
Conclusion: Coronavirus Catastrophe & the Mumps Mania Precedent
For all the above reasons, Mumps Mania vs Coronavirus Catastrophe bodes ill for the future of our criminal courts. My experience as a criminal defense lawyer in Fresno, Madera, Kings, Tulare, and Merced counties tells me otherwise.
Our judges do not know much about science, but they know how to buy into junk science and fear. The knee-jerk reaction of the Fresno County Sheriff’s Department’s decision to the mumps does not inspire confidence. When coronavirus hits, our judges will not likely do the right thing. (Let’s not forget, by the way, that a Fresno judge ordered a woman arrested at gunpoint, shackled, and held in jail because she had tuberculosis.)
We lack reliable science-based and properly-peer-reviewed information on the coronavirus. Combine this with the fear stirred by an irresponsible press. This makes the damage done to civil liberties by the mumps likely minor by comparison.
Take the precedential nature of things like the San Quentin response to the flu. Take our initial response to mumps in Fresno. By the way, though the presiding judge lifted the suspension of rights order, the “quarantines” remain in place. This presages trouble to come.
Defense attorneys had best be ready. I fear we, and we alone, stand in the way of a quarantine on prisoner rights.