Voir Dire- Jury Selection

The process by which a jury is selected is referred to as Voir Dire, which is derived from Anglo-Saxon term, itself derived from Latin for Verum Dicere -- Tell the Truth (at least, according to the fount of all questionable knowledge, Wikipediahttp://en.wikipedia.org/wiki/Voir_dire).  This process is used for any expert witnesses as well, to determine their suitability in that capacity.  

In the state of Ohio, the number of jurors is not always 12, but is often less for civil or special courts, while a Grand Jury has 15 (per ORC 2939.02 http://codes.ohio.gov/orc/2939.02).  No more than 4 alternate jurors may sit in a jury, and the alternates sit in a jury in case a juror is unable to fulfill their obligation.  As I understand cases from talking with peers who have been through the process, this typically means that there are 16 jurors sitting through the trial, and then the official 12 provide the verdict.  

Voir Dire as a process seems to have two very important parts - determining the impartiality and swearing of the juror to fulfill their obligation truthfully and without bias.  In the State of Ohio, the commissioner of jurors pulls board of elections and BMV registrations to call jurors.  Once called, voir dire is really one of deselection of jurors, for 1 of 3 reasons:

1. for cause (e.g. condition which would prejudice them, such as knowing the plaintiff or defendent), 
2. a peremptory challenge of up to three jurors, for which counsel need not show cause (although is not without limit), and
3. the court may provide, at their discretion, for a challenge of the suitability of our juror outside the voir dire process.  For example, if testimony later given in the case should show that there was an undisclosed relationship or prejudice of a juror, then the court would almost certainly entertain a motion by either counsel to disqualify that juror. 

(Ohio Jury Selection, US Legal.com http://civilprocedure.uslegal.com/trial/jury-selection/ohio-jury-selection/).  [NLRG]

There are some limits to peremptory challenges, which vary based on local laws.  Peremptory exclusion has undergone increasing scrutiny since Batson v. Kentucky, 106 S. Ct 1712 (1986), and further in State vs. McCollum, 112 S. Ct 2348 (1992), which precluded the basis of race, when an African-American juror was excluded peremptorially.  This protection was extended to civil trials in Edmonson vs. Leesville Concrete Co., 111 S. Ct 2077 (1991) and to ethnicity - Latinos in Hernandez v. State of New York, 500 US 352 (1991) and Hispanics in Allen v. Hardy, 478 US 255, 259 (1986).  

Some courts have also provided for the extension as well to preclude discrimination against Caucasians (Brown v. Neurodiagnostic Associates, PC, District of Columbia Superior Court No.990-CA-4171 (1992)).  Gender has also been included in a SCOTUS ruling, J.E.B. v. Aalabama ex rel. TB, 62 U.S.L.W. 4219 (US 1994), and provided that the Equal Protection Clause of the US Constitution prohibits that the exclusion of a juror via peremptory challenge be based on a discriminatory use based on the gender of jurors.  In California, a peremptory challenge of a juror would not be permitted on the basis of sexual orientation. [NLRG]

Once a peremptory challenge has been issued by either counsel, the opposing counsel can raise an objection to establish the prima facie case of intention of the peremptory exclusion to discriminate.  In practice, this forces the counsel who wishes to exlude a juror peremptorially to explain the reason for the peremptory challenge in a way that demonstrates that it is non-discriminatory.  However, in practice, I believe that you can likely find nearly any excuse as long as it's not stated to be based on discriminatory reasons, even if that is the precise intent.  I know that age, gender, ethnic and sexual orientation discrimination are regrettably common in hiring practices, but that you can always find a reason to exclude a potential candidate on some other basis.  

Despite some latitude, grounds for peremptory challenge exclusion must be articulated, not some vague reference - as in People v. Mack, 128 Ill. 2d 231, 538 N.E.2nd 1107 (1989) / Wright v. State, 586 So. 2nd 1024 (Fla. 1991), cannot be the lack of eye contact or a "bad feeling".  Further, courts have provided for oversight of the treatment of jurors, such as discriminatory ways in which jurors are questioned or otherwise interacted with during voir dire, such as striking a black bricklayer, but not a white bricklayer - see Brown v. Neurologic Associates, PC, supra. [NLRG]

I would think that life experiences similar to the case at hand would cause most of the peremptory challenges.  For example, if the case is one of alleged police brutality, then questions focus on if the juror had ever been arrested or in handcuffs by police, had ever felt threatened by a police officer, or if they had ever been accused of resisting arrest or an act of violence.  

Counsel would also want to know about the opinions that the juror has about the police, such as if they had neighbors, friends or relatives who are or were police officers, or if the juror had ever participated in a police-associated charity, such as a Back the Badge Poker Run.  Additionally, I think that age would be desired by the prosecution, as it might keep them from being swayed by an impassioned plea based on emotional appeal.  I have been told that, because I am in Information Security and am an architect and analyst, that I would ALWAYS be excused based on peremptory challenge, because I use judgement in my profession.  I think that is sadly humorous.

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NLRG: National Legal Research Group, (Pub Date unknown). "Jury Research Update: Exercising Peremptory Challenges in Light of J.E.B." NLRG.COM, retrieved 3/28/2013 fromhttp://www.nlrg.com/our-services/jury-research-division/jury-research-publications/-exercising-peremptory-challenges-in-light-of-jeb/

Victim Precipitation & Columbine

I think that there are substantial influences of victim precipitation on many violent crimes, in particular those involving alcohol.  When people lower their inhibitions and effect their judgement via alcohol, they may be more inclined to pick fights, stagger into others provoking a response to an imagined attack, or aggressively pursue an undesired romantic interest, all of which can precipitate assault and other forms of violent crime.  

Victim precipitation has often been blamed for the Columbine school massacre, playing on the beliefs that the killers had been taunted, and were lashing back at the victims.  However, I do not think that there was any victim precipitation in the attack on Columbine.  This seems one of the myths of Columbine created in the media circus following the event.  

In the CNN Article, Debunking the Myths of Columbine, 10 Years Later (CNN, 2009 - http://www.cnn.com/2009/CRIME/04/20/columbine.myths/index.html?_s=PM:CRIME ), author Stephanie Chen discusses many of the myths believed by the general public about Columbine.  Among these are that the killers were part of the Trench Coat Mafia (they weren't), that they had been harrassed or teased before (no more than typical high schoolers), were loners (in fact, they were popular with a tight circle of friends), and targeted jocks and blacks (which they did not).  

Another myth of Columbine was that the students created a hit list of intended targets.  However, the list had several joke entries (e.g. Tiger Woods), and nobody on the "hit list" was injured or killed in the event.  Rather than being outcasts, Harris and Klebold were reportedly far more accepted than most of their peers. (Sidebar, Slate Magazine, author & pub. date unknown http://www.slate.com/sidebars/2004/04/sidebar_3.html ).  If anything, the victims of Columbine seems to have been selected because the target was a known, familiar ground to the killers, much as the poor frequently prey on the poor in their neighborhood.  

According to Dave Cullen, in an article published 4/20/2004 in Slate, The Depressive and the Psychopath: At last we know why the Columbine killers did it (http://www.slate.com/articles/news_and_politics/assessment/2004/04/the_depressive_and_the_psychopath.html), FBI psychiatrists and psychologists have categorized Klebold as a depressive, suicidal and disturbed young man who blamed himself for his problems.  Harris however, has been classified as a psychopath by the FBI, a cold, calculating and homicidal killer, and not just a depressed loner.  

According to Cullen, who spent years meticulously researching Columbine, the students were not seeking a school shooting at all, and mocked the notion of a school shooting.  Their intent, rather, was a massive detonation of bombs both inside and outside the school, while providing strafing fire to gun down any who escaped the carnage.  They planned on a body count to inflict the "largest number of deaths in U.S. history," intent on topping the murders committed by the Oklahoma City Bombing.  Precipitation does not seem to have been a factor in the aggregate in the Columbine shooting.  Only at the micro level, as individual students chose to run, cower, hide, and other minute decisions did those precipitate their personal victim status -- if they chose wrong, they were injured or killed. This doesn't seem, however, to be victim precipitation, as a crime was already in progress, and it was just their response to it.

Feminist Criminology

Adler and Simon were some of the original proponents of feminist criminology, which explains the difference in crimes committed by women as a result of sociological causes rather than biological in nature.  Feminist criminology points to sexual and economic oppression, disenfranchisement of women, marginalization of women in the home and society and reduced socioeconomic opportunities in a patriarchal society.  Much as the conditions and treatments of African Americans have not completely recovered from slavery, the oppression of women as chattel still causes deep societal divisions.  In the perspective of feminist criminology, crimes committed by women can be explained through gender differentiation in society causes those behaviors.

The 19-Mar-2013 article in the WV Metro News, "Woman Sentenced for Shooting Husband in Hospital Bed"  (http://wvmetronews.com/woman-sentenced-for-shooting-husband-in-hospital-bed/) details the story of Rhonda Stewart, aged 54, who is alleged to have shot her husband in the Intensive Care Unit, in Charleston, WV.  Ms. Stewart claims to have no recollection of the shooting, and appears to have been the victim of systemic and long-term spousal abuse.  According to her daughter, "she has been imprisoned all her life".  Feminist criminology would point to the sexual and social dominance of the husband, and power-control, as described by John Hagan, as introduced through the family class structure creating inequity and struggle.  Gender relationships and differences, from the feminist criminology perspective, would be responsible for the domestic abuse that appears to have been the daily existence for Ms. Stewart, and that ultimately led to her lashing out against her oppressor.

While I believe that there is much we can learn from a feminist perspective of crime, and that social, sexual and power issues created by gender are a causative influence for criminality, I do find that some feminist perspective on crime go too far in demonization of men. However, there is much to be learned from considering the role that gender plays in society and crime.  

My wife is my queen, and I try to honor her, as I hope all men cherish, honor and care for their wife.  Still, I admit that our nuclear family has definite and distinct gender roles, ones which we acknowledge and embrace in some ways, and others we laugh about, when we catch ourselves in a rut.  We recognize that there are different perspectives and views of the world - as a man, I want to kill the bear and drag it back to the cave, so think that my daughters are sharing life events with me so I can "solve the problem", and I've had to realize that they're communicating with me as a therapeutic and healthy way of relating to me as their father.  The criminal justice system has been male-dominated for thousands of years, and only recently has provided for roles for women in criminal justice.  I can see that consideration of a world through a man's eyes, including the world of criminal justice, would tend to focus on solutions that resonate with the male perspective.

Seeing the rich and varied way that family relationships, gender differences and social mores play out across gender boundaries, I can see where a feminist perspective on criminality would provide for insights that were sorely lacking when much of the field of criminology was established.  As we continue to learn and expand the role that feminism plays in our society, I think we will continue to improve the role of women in our criminal justice system -- and hopefully address root causes of crime based on gender inequality.

Crash: Seen through conflict theories of criminology

I was challenged to watch the movie Crash and provide commentary.  If you have a Netflix account, you can watch it here.

The movie Crash was one I found very disturbing - the raw racism was painful enough I had to watch the movie in phases across several days. The backdrop of ethnically and culturally diverse Los Angeles is the setting for director Paul Harris' film, which follows several groups of people through 3 tense days of interaction, where their lives are unexpectedly intertwined. Along the way, each of the main characters acts out of ugly racism (with the notable exception of the locksmith, Daniel), and then has a revelation that changes their perspective on race.  This movie has many plots and subplots, and I do not think there is a single conflict theory to explain all behavior -- although Marxist class struggle does seem to be an overarching theme.  

Many conflict theories of criminality are presented in the movie, and these include:

Radical criminology (William Chambliss, Karl Marx, Friedrich Engles, etc.) Anthony and Peter are presented as the bourgeoisie who are down-trodden without opportunities or hope, and the shopkeeper Fahrad is likewise presented as a man who is pushed into criminality through hopelessness from feeling wronged by a corrupt system.  Chambliss' theory that the upper and middle-class often escape punishment is further highlighted in an angry exchange between Cameron, a successful movie director, and Tom Hansen.  Cameron, a successful black man in an expensive car is let go, even as Anthony huddles in the front seat - the impression being that, had Anthony been discovered, he would have been arrested and not gotten away with just a warning.

Feminist criminology (Adler & Simon) - Power-Control Theory (Hagan) - Christine reacts to being arrested with violent outbursts and vehement anger as she is controlled and dominated by the police, and is further stripped of dignity through molestation at the hands of the police.  She reacts with mild violence and scorn to her husband, Cameron, who she saw as not protecting her to save his own dignity.  Through Christine, we see strong gender issues, where she is subjugated to her husband's career, and reacts strongly to that when this results in her sexual assault.  Sandra Bullock's character, Jean, is likewise subordinate to the career of her husband, who is more concerned (as District Attorney) that he was robbed by black men, and how that will effect his political career, than with the trauma felt by his wife.

Instrumental Marxism ( Reiman) - Through the eyes of the poor in the movie (Anthony, Fahrad, Peter) we see how the poor are downtrodden and subjugated by the police.  Peter is shot by a policeman, who saw everyone else as racist, and then winds up shooting Peter due to his own prejudiced beliefs -- after first mocking Peter that he could enjoy country music, go ice skating or would like to be a hockey player.  We see the interaction of the police with the citizenry as corrupt, domineering, prejudiced, racist and driving the forces of law to manipulate public image and create prescribed outcomes regarding race perceptions and twisted justice.  The criminal justice system is portrayed as a tool to control the poor, rather than a tool to create justice, law and order.

Critical Criminology (Sykes) Jean, having been robbed at gunpoint, quickly jumps to assumptions regarding the tattoos and baggy clothes that Daniel has, and demands her locks be changed again.  She is the epitome of upper-class snobbery keeping the ruling class dominating the underprivileged, and she is broadly critical of the hired help, and turns every perceived slight into aspects of criminality.  

Left-realist Criminology (Curran, Renzetti, DeKeseredy, Young) - While not as strong a theme as other conflict theories, there is the general overall sense in the movie that most of the poor portrayed in the movie are committing crimes of desperation and deprivation, while the police and ruling elite are the "real criminals" who are corrupt - framing the innocent, committing coverups, killing, bribing using extortion and crimes of sexual deviancy.  

Labeling theory (Howard Saul Becker's & George Herbert Mead) - While not a conflict theory, Labeling theory is seen in how many of the players in the movie label themselves, including a several minute dialogue by Anthony and Peter.  In particular, Anthony sees the antagonism of society against him as entirely based on race, then they both play to type and steal a car and gun point.  Peter, despite having a brother who is a successful police detective, is a 3-strike felon who sees few ways of opportunity except by boosting cars, accepting society's label as a hoodlum.

What Value a Victim?

You're warned people, this is an ugly post.  This smacks racism right between the eyes, and first drags racism out from the sewer so it will be exposed in the light of day.  You've been warned...

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Advocates of victim-impact statements argue that some victims have a greater inherent worth than others when measured in terms of social harm. As offensive as this seems on the surface, victim advocates and the surviving families of victims deserve that this gets focus.    I think the voice of the victim and victim advocacy is a great change in the courts, and we are all served by having victims with a voice in criminal justice. I think it can be too easy to forget those impacts when wrapped up in court proceedings, particular on a technical case.

Societal "worth", particularly variable worth, is certainly an emotionally charged issue.  We are offended as a society, and I find great personal offense, when we read that African Americans were once counted as 3/5 of a human being, and the abhorrent nature of the devaluation and dehumanization of ethnicities is a stain on the soul.  

However, the question was not about dehumanization or devaluing an individual, but the recognition that the impact to society of victimization is variable, even as the effect to the victim is, largely, all the same.  Before you react to the word "largely", there are obvious cases where suffering of a terminally ill person is eased by murder, so the impact to the victim is less than the impact to someone not suffering from a terminal illness.  This is not to justify euthanasia, which is murder, but to say that the impact to the terminal, suffering victim is less than typical.  However, we cannot readily and comfortably place a value on a human life, and it's abhorrent to consider that some people are "worth more" than others.  From the perspective of the victim, they are the center of their universe.  However, society does have a differing price it pays based on different victims.  Consider the following victims:

1. 90 year old Alzheimer's patient
2. 6 year old healthy child
3. 19 year old college student
4. 30 year old Nobel Laureate physicist
5. 22 year old widowed mother of three, 3 months pregnant
6. 22 year old Navy pilot
7. 22 year old homeless drug addict
8. 30 year old cardiovascular surgeon
9. 50 year old convict serving a life sentence
10. 50 year old U.S. Senator

We can recognize that society is harmed differently in each of these cases.  I think we can recognize that society realizes a great loss from a Navy pilot or cardiovascular surgeon, and a less significant loss from a convict or an Alzheimer's patient.  Leaving behind a family also causes great harm, and the loss of a Nobel Laureate physicist is tremendous.  However, if the Alzheimer's patient is your Grandma, or the convict is your brother, then you have a differing perspective.  

I think that juries are readily swayed by discussions about the societal worth of individuals, and (regrettably) if they are attractive.  

Name 4 white females killed in the last 20 years - Laci Peterson, Natalie Halloway, Chandra Levy and JonBenet Ramsey probably came to mind almost immediately, after their victimization was so thoroughly saturated by the press.  I know that the smile of Laci Peterson haunts me when I see it, such a beautiful person, struck down in the prime of life, while pregnant.  

Now name 4 black men killed in the last 20 years.  Was that harder?  Can you name 4 Indian women who were murdered?  4 Asian men?  The media seems to focus on beautiful white women who are murdered far more often than anyone else, and that's sad, sick and disturbing - but that is what I see when I hold a mirror up to society.  It's abhorrent, but seems true.  Juries watch the news, and are indoctrinated by it, and swayed by the mores of the 4th Estate.  I think that jurors will see the death of a 50 year old drifter much differently than a 30 year old surgeon.

I have a blond daughter who is beautiful, and would be the darling of the media in their coverage.  I also have an Asian daughter and son, and it's highly disturbing to see that they would apparently be valued less by the media in their coverage of crimes against them.  Of course, I pray I never find out, first-hand, what that would be like.  

The US is still suffering from the propaganda dished out to us in WWII, and, to a lesser extent, Korea & Vietnam -- propaganda that demonized the enemy.  It will likely be a few more generations until we don't see Japanese men as wearing thick glasses and machine-gunning children at play while laughing in their planes, as propagandists would have us believe 60 years ago.  This, by extension, is one cause of the devaluation of all Asians as a society, not just Japanese, and juries have a hard time shaking loose their prejudices.  Our march towards racial equality and justice continues, and has made great strides, but it's far from over... and this will extend to the valuation of victims in the mind of jurors.

Explaining the Inexplicable: Why did they do it?

When lawmakers and judicial authorities break the law, it’s big news.  

Diane Hathaway, a former Michigan SupremeCourt justice, plead guilty to charges of bank fraud on 29-January-2013, based on concealing assets in a settlement on a mortgage to escape foreclosure.  What appears to have happened, as reported by the Associated Press article “Ex-Mich. Supreme Court justice pleads guilty to bank fraud” published in the Toledo Blade 29-Jan-2013, is that Hathaway and her husband, Michael Kingsley, transferred a Florida home to a relative to hide assets and qualify for a short sale.  In a short sale, assets are sold for less than the value of the debt, permitting the debtor to escape foreclosure to avoid “financial hardship”, and the lender writes off the remainder of the debt as uncollectable.  

Hathaway was able to present a false indicator of financial hardship by hiding of assets, and seems to have benefitted from a $600,000 write-off in the short sale, though records filed by the prosecutor seem to indicate that the actual loss by the bank may have been closer to $100,000.  The article seems to indicate that Ms. Hathaway stepped down from the judicial bench as a part of this prosecution, so the crime was committed while a Supreme Court Justice.  (AP, 29-Jan-13)

When an officer of the court commits fraud, this is naturally a very serious offense, and it seems likely Ms. Hathaway faces losing her license to practice law as well as her freedom.  Ironically, she has likely created a debt from legal costs and loss of her livelihood that will not just cost her more than the $100,000 written off in the short sale, but likely will cost her the vacation home as well.  

So, why did she do it?  That's the classic question of criminology, and one I'll attempt to answer.  I think Beccaria’s classical theory of law can provide for an understanding of her actions.  All three “legs” of Beccaria’s theory are present.  Ms. Hathaway had free will, a fundamental of Beccaria’s classical theory.  She doesn’t seem to have been under duress or coercion when she concealed the vacation home, or when she lied to the bank.  While her husband may have been a persuasive fellow, Ms. Hathaway had attained a very high level within the judicial system, and would not have been successful in her role as a judge had she been so readily swayed by arguments into committing a serious crime.  

Ms. Hathaway ostensibly and clearly had rationality, as irrationality would have precluded her career choice.  Finally, Ms. Hathaway would presume to be subject to manipulability, the third fundamental in Beccaria’s classical theory.  As a state Supreme Court justice, she would be aware of sentencing guidelines for her offense, and would know that she is held to a higher standard as an officer of the court.   With the free will to commit crime for the self-interest of $100,000, and with the rationality to understand the catastrophic punishment she faced, the decision Ms. Hathaway made would more subscribe to the neoclassical theory, as the rational choice theory (Cornish and Clarke) would explain that she must have thought her crime would go undetected, and therefore a rational choice, with the perceived benefit outweighing the perceived cost(s).  She stands to lose nearly everything from this crime, and has already sacrificed her integrity.  It seems unlikely she will be able to have any kind of job in the criminal justice system after this crime, so there will be a dramatic penalty in her life besides the potential for a prison sentence.  The thought of a Supreme Court justice committing fraud for $100,000 is disturbing, since it calls into question the integrity of the bench and her judgment on prior cases. 

The prosecution of the crime and plea bargaining is a further example of the neoclassical theory.  Ms. Hathaway is presumed innocent until proven guilty, a key tenant of our justice system which is owed to the neoclassical theory. (Barkan, 2012) Ms. Hathaway is afforded plea bargaining and a modified sentence sufficient to achieve specific deterrence, as well as to provide general deterrence that the criminal justice system works, and has found her out. These aspects of deterrence are elements of the neoclassical view. (Schmalleger, 2012)

A sadly more common crime was reported in The Muncie Star Press on 30-Jan-2013, of a woman who had been placed in a position of trust in a church, which she alleged to have abused to embezzle nearly $200,000.  Angela Renee Linder, 42, has been charged with felony wire fraud, in a plea deal reached with federal prosecutors.  She is subject to $250,000 in fines and up to a 20 year prison sentence for the federal offense.  Ms. Lindner had been placed in charge of payroll, tax filings and “other administrative duties” at the Union Chapel Methodist Church in a Muncie, Indiana, suburb.  Her duties included handling credit cards and payments of those cards, apparently with too little oversight and governance.  (Walker, 2012)

Ms. Lindner is accused of church credit cards under her control to purchase airline tickets, rental cars, meals at restaurants, home improvement projects, weight loss plans, and purchases at stores ranging from clothing and tire centers to wine stores.  She also is alleged to have paid herself unearned wages exceeding $54,000, by adding herself to the payroll of a community center of the church where she was not employed.  The audacity of Ms. Lindner’s crime went so far as to allegedly use $2500 of embezzled funds to establish a charitable fund "purportedly for the purpose of assisting children whose families were victims of fire-related disasters."  She appeared in a newspaper article as recently as November, praising her efforts. (Ms. Lindner had served, until recently, as a county firefighter and EMT).  The proposed plea agreement has been signed, and the U.S. Attorney’s Office stated Ms. Lindner "demonstrated a recognition and affirmative acceptance of personal responsibility for her criminal conduct." (Ibid)

I think that the neoclassical theory of criminology is more closely related to this case than the classical view.  Ms. Lindner presumably had free will and rationality, and was able to decide for herself, repeatedly, clever ways to defraud the church of their funds, and to belie the trust they had placed in her.  By signing the plea deal, she has also demonstrated manipulability, all three qualities important to Beccaria’s classical theory of crime.  However, the strict yet reasonable punishment by the state seems to follow the neoclassical theory, as there were a number of other crimes for which Ms. Lindner could have been charged, yet a plea deal was reached for expediency of the state and with demonstrated contrition by the accused. 

The neoclassical perspective of rational-choice theory (Cornish & Clarke) provides perspective in that Ms. Lindner had made decisions believing the reward outweighed the risk, and seems to have acted in such as manner as she didn’t think she would be caught.  The Routine Activities Theory (Lawrence E. Cohen and Marcus Felson) further provides insight, that the offender was provided the opportunity in the absence of a capable guardian.  Without governance and oversight, the abuse of the church accountant went undetected.  A simple establishment of quarterly review of the church accounts by an audit committee of the church would have provided enough of a deterrent to stop the crime, as Ms. Lindner would have no longer believed her crimes would have gone undetected.  Presented with attractive targets (checkbook, payroll, credit cards) and opportunity (no segregation of duties / “toxic combination”), Ms. Lindner chose to commit crimes without the deterrent of a guardian.  (Barkan, 2012)

It seems that self-delusion played a significant role in both crimes above, as both Ms. Lindner and Ms. Hathaway seemed secure that their crime would go undiscovered, even though they both seem to have left a paper trail that would inarguably show the truth.  Particularly in the case of Ms. Lindner, a simple audit of the credit card statements or payroll would have disclosed the embezzlement. 

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Sources:

Associated Press. (29-Jan-13). Ex-Mich. Supreme Court justice pleads guilty to bank fraud.  The Toledo Blade.  Retrieved on 29-Jan-13 from http://www.toledoblade.com/Courts/2013/01/29/Ex-Mich-justice-pleads-guilty-to-bank-fraud.html.

Barkan, Steven. (2012) Criminology: A Sociological Understanding. (5^th Ed.) Retrieved 29-Jan-13 from http://www.canyons.edu/faculty/wonserr/Intro%20to%20Criminology/Lesson%204%20-%20Classical%20and%20Neoclassical%20Perspectives.ppt

Schmalleger, Frank. (2012) Criminology Today: An Integrative Introduction. Prentice Hall: Boston.

Walker, Douglas. (30-Jan-2012) Woman accused of embezzling $200,000 from Muncie church. Muncie Star Press. Retrieved 30-Jan-2013 from http://www.indystar.com/article/20130130/NEWS02/301300318/Woman-accused-embezzling-200-000-from-Muncie-church?nclick_check=1

Technical Debt vs. Managed Technical Debt

I was invited by Rafal Los (@Wh1t3Rabbit) to publish as guest blogger to his HP blog... reposted here for posterity.

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If you’ve been paying attention to the Enterprise Architecture space, the notion of measuring, managing and avoiding technical debt has come into the forefront in the past 5 years.  Broadly attributed to Ward Cunningham, technical debt is a concept spawned from the adjacent concept of design debt.  The idea of technical debt is that there are decisions made throughout the SDLC that hamper the delivered product from the ideal, and that this is deficit spending you'll have to pay for eventually. 

There might be a compelling business reason to host a public application with web/app/database on the same physical server, implement deprecated function calls, or to use MS-SQL 2008 for your database because you're constrained in some fashion; this is all cruft that will likely result in future efforts to correct the architectural misstep.  In essence, you're willing to saddle the organization, business unit, and that application with "technical debt" because of an imperative like time-to-market, budget shortfall, or architectural constraints imposed from legacy investments (i.e. - creating more technical debt because of existing technical debt).

You've likely gritted your teeth several times in your career when you run into problems of technical debt -- Visual Basic codebase, NT servers still in use, use of telnet, users with desktop admin privileges, use of custom cryptography, all of these are examples of intractable technical debt in a large enterprise.

We all have technical debt -- but is it managed?  In my experience across many large organizations, while people get the concept of technical debt, after a fashion, the governance of it is exceptionally difficult, because it means having teeth in your governance program sufficient to make very hard business decisions.  To transition from notional concepts of technical debt to actual _managed_ technical debt, you have to have accountability for the technical debt, a way of measuring and reporting on it, and managing it into the future budget cycles.  From discussions with peers, few organizations have a mature enough Enterprise Architecture and portfolio management practice to be able to manage that in a suitably complex environment.  When your network is so large that no single person can know it all, or no single person has visited all your facilities, then managing technical debt becomes a difficult problem.  In most organizations of that size, your portfolio management and EA teams would be happy if they could just know all the applications (and cloud apps) installed by shadow IT.

Measuring "relative evil" as technical debt when an application is implemented, warts and all, as a means of assessing progress (deprogression) is a great way to drive visibility through metrics.  However, when it comes to actually putting the wheels on tech debt governance and driving it down the road, that's another thing entirely.  That requires a level of sophistication in portfolio management that most organizations are not ready to achieve, IMHO.  However, in organizations that can pull it off, there are some hard dollars to be found in R&M, rework, outages, costs passed along to future projects, brittle architecture, and lack of first-mover advantage.  In other words, it's worth the trip.

As architects, it's our job to articulate those issues to the ones making the decisions to add technical debt, and make it clear that it's not cheaper, not by a long-shot -- in my experience, the total costs are probably 10x the total costs being "saved" by the project right in front of them wishing to add technical debt.  I've also advised several times to go with the tech debt to gain first-mover advantage in a new market, because it's the right thing for the business, tech debt be hanged.

This brings us to the brink of security debt, which is a very useful term if you can make it stick.  Once people latch onto the notion of technical debt, you have fertile ground for making the leap to security debt, as the notion of managing and measuring the costs associated with deviation from policy, standards and suitable good practice.  However, notice I referred both to the brink of security debt, and leaping.  Be careful where you take that, because if your organization cannot effectively measure and manage technical debt, they likely aren't ready for security debt.  However, a good quantitative analysis method (I'm a fan of Jack Jones' FAIR model) combined with metrics and collaboration with audit can likely create a solid picture during the SDLC of the actual probabilistic losses associated with security debt being added to the organization, and that can be a powerful tool.

As Dan Geer has said many times, in Information Security, the future belongs to the quants.

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Comparing Cost of Crime to Cost of Incarceration

 Comparing the cost of corrections to the cost of crime had not occurred to me, so I found this to be an interesting challenge that would cause me to do some digging. 

According to the Ohio Department of Rehabilitation and Corrections website, at http://www.drc.ohio.gov/Public/osp.htm the average cost per inmate is $164.06, with a total budget of $29.866 million for 458 prisoners.  The Franklin County budget for the office of sheriff is $99 million as submitted (see http://www.dispatch.com/content/stories/local/2012/12/02/sheriff-budget-falls-short.html ), and that article provides the statistic that the Franklin County jail maintains 1800 inmates in jail each day, a stunning number.  While I couldn't find a line item in the budget that provided a breakout of jail cost alone, the total cost for the Franklin County Sheriff function is $150.69 per prisoner they incarcerate - although that obviously includes patrol and administrative costs for law enforcement and crime prevention, as well as the strict operating costs for the jail.

From the Buckeye Institute report "Smart on Crime" issued November 2010 (see:http://buckeyeinstitute.org/uploads/files/buckeye-smart-on-crime(1).pdf ) the cost of corrections in Ohio has increased 5-fold since 1983, after adjusting for inflation.  Their number is starkly different from those posted by the department of corrections, at $1.79Billion annually for the total Ohio Department of Corrections figure, with $1.29Billion earmarked explicitly for prisons.  Ohio spends 7.3% of the state budget on corrections, more than the national average of 6.7%, with more than 50,000 inmates in the prison system.  The "Smart on Crime" report makes the assertion, one that I agree with, that the prison system in the United States has surpassed the point of diminishing returns.  The cost per resident of Ohio, using the Buckeye Institute report on crime, is $155.06 per Ohio resident.

The 2010 Rand report "Hidden in Plain Site" published at (http://www.rand.org/content/dam/rand/pubs/occasional_papers/2010/RAND_OP279.pdf ) provides scholarly research on the cost of crime attributable to the cost and effectivity of policing.  From the report, the forecasted cost of crime in Toledo Ohio that was associated with a 12% reduction in police force ($20.97 per capita in savings) was estimated to yield an impact of $31.76 million, for a per-capita impact from that 12% reduction of $1160 per Toledo resident, or a net increase in costs to the citizens of Ohio of $1139, which far outstrips the $155.06 per resident cost of incarceration (and remember that the $1139 is just for a 12% reduction on policing, not answering the complete question of "what would the impact of crime be if there were zero law enforcement, as that number would be catastrophic).  While the diminishing returns from the prison system are certainly of concern, the cost of crime is dramatically larger than the cost of incarceration.

I don't think that all incarceration is cost effective, as there are many crimes that are "victimless crimes", as well as the issue of juvenile offenders.  You can't ignore the fact that there is model theory at work that will actually encourage delinquency when incarcerating a juvenile with other juvenile delinquents.  They stand a good chance of becoming bitter and embracing crime, rather than true and actual rehabilitation.  Additionally, since most criminals believe they will not be caught, the threat of punishment doesn't seem a real deterrent.  I think that crimes like small amounts of drug possession, DUI, administrative offenses are best resolved through community service, probation, counseling, rehabilitation, therapy and social programs.

Some thoughts on drug tests - and should cops have them?

Several random thoughts on drug testing...

Sweating Drug Tests & Performance Anxiety  

I think that 90% of the value of a drug test is the threat of the test itself.  I always got paranoid some years back when I had to take drug tests, even though I never (NEVER, even in college) tried illegal drugs, not even a joint.  So, why was I nervous?  Because I let my father (a physician) prescribe things for me.  About twice a year, I'd be at his house and have a symptom, and he'd toss a few pills at me and tell me to take those, and I'd get better.  Then, 3 months later, I'd be going in for a drug test and they'd ask me to list all medications.  Um, geez, they were yellow?  Yeah, that used to freak me right out, because what if the drug test showed something positive?  In particular, since my dad was an allergist, and I have had allergies, might he have given me a steroid or something with ephedrine that might look like a meth derivative?  Well, it never actually caused a problem, and all of my tests have been negative, and I've never abused drugs, so my conscience is clear... but it still didn't stop me from sweating bullets before a test.  Oh, and the worst was at Cincinnati Bell, where the matronly nurse stood there and watched me intently, and not from an angle that protected my privacy by any means.  The focus of her eyes were not on my face.  Talk about performance anxiety!!!  So, yeah, drug tests stink.

Costs of drug tests

In bulk, a mouth swab drug test is pretty cheap, under $1.  I know a Top-25 US bank uses those on employees who don't handle cash or guns, as their pre-employment screening (or, at least, they used to).  If it gives a positive, then they go for the more expensive urinalysis.

Should police be subject to random drug tests?

Definitely, police should be subject to random drug testing, for multiple reasons.  First, they are authorized to use deadly force and are armed.  Because of that responsibility, they should be tested to ensure that they are not impaired.  A random drug test, which could be administered at any time, should keep them clean and free of drugs.  Secondly, police operate motor vehicles, sometimes at high rates of speed.  In my own company, anyone who is paid to drive a commercial motor vehicle is subject to random drug tests, and I think that's a fair test when they are being paid to drive a vehicle, and the policy prohibits drug abuse.  Third, police utilize judgement and uphold the law. If they are addicted to drugs, they are corruptible, and lose partiality.  Fourth, they cannot utilize their judgement impartially and fairly if they are impaired.  Finally, and most importantly, police are in contact with drugs as part of their job, as well as large amounts of cash at times when performing a drug-related arrest.  Because of this, it is important for them to be ensured to be without corruption from this contact, and for the public to know that they are not being corrupted through this contact with drugs and cash.

On False Positives - should industry create a 0% False Positive Test?

I think having a 100% fail-safe drug test would be too expensive.  I'd be happy with a drug test that has a 0.5% false positive and 0.01% false negative... and anyone who tests positive is on administrative leave and immediately required to do a more elaborate test, with a second positive result leading to suspension pending further investigation.  Two mostly accurate tests, in my opinion, are better than the exceptionally high expense of a 100% fail-safe test.  If you know going in that, in a 1000 person police department, you're going to have, on average, 5 false positives, then you've removed the stigma of an initial positive result.  The odds of having a second false positive on the retest of those 5 is exceedingly small.

Anomie, Normlessness, Strain Theory and Relative Depravation Theories of Criminality

Robert K. Merton developed the concept of "anomie", which is normlessness.  Anomie was first introduced by Emile Durkheim as an explanation for the breakdown in perceived societal conditions bring about feelings of "personal loss, dissolution, and lack of a sense of belonging" (p.157, Schmalleger 2012).  Merton took the notion of anomie in a different direction, focusing on the juxtaposition of societal definitions of success and the means to obtain that success, and what would result if those were unattainable.  Merton's focus was on the strain between the seeking of goals and society's blocking of the means to be successful (e.g. poverty).  His theory was referred to as strain theory, from the perceived strain between societal goals and the means to attain them.  Merton outlined 5 different classes of goals and means disjuncture, categorizing those with goals and means as "Conformity", with goals but without means as "Innovation", without goals but with means as "Ritualism", and those without either as "Retreatism".  Finally, he categorized "Rebellion" as people who rejected societal's goals and standard norms of success, regardless of their means.

Robert Agnew was one of the leads in creating the General Strain Theory (GST) as a comprehensive perspective, where law-breaking is a coping mechanism dealing with negative social relations caused by various strains.  He furthered the research 14 years later by proposing six central assertions to General Strain Theory that provide for specific conditions of strains and those indicators of which strains were most likely to lead to crimes.  The LA Riots after the Rodney King trial would be an excellent example of the General Strain Theory, whereby the black community in Los Angeles felt disenfranchised and unjustly treated, resulting in widespread crimes of revenge and theft to "right a wrong" cause by perceived injustice.

Messner and Rosenfield took a different tack on anomie by proposing Relative Deprivation, and suggest that the inconsistencies in the American Dream are at the basis of most criminal activity, where the perception is that the ends justifies the means, and that "anything goes" in the pursuit of success.  Relative Deprivation would point to any culture where the "haves" and "have nots" live in close proximity.  Judith & Peter Blau also provide further insight into relative deprivation by stating that relative deprivation creates frustration, anger, hostility and social injustice when experienced, and that it is a perception when assessing their position in life compared with those things and people they already know.  In our media-driven culture, this circle of perceived affluence is very large indeed.  This is the principle of distributive justice, where anomie may be caused from feeling of social injustice based on skewed distribution of rewards (wealth).

Schmalleger, Frank. (2012). Criminology Today, An Integrative Introduction. Prentice Hall, Boston.

Good Faith and the Exclusionary Rule

The notion of the exclusionary rule is that evidence gathered that was available via a breach of law, in particular, constitutional law regarding search & seizure, is considered "Fruit of the Poisonous Tree".  Even though it is evidence that could reasonably lead to conviction of a serious crime, if it was gathered after constitutional rights were violated, then it must be excluded, as though it didn't exist.  

Where good faith is provided as an exception to the exclusionary rule would be if the officer had a reasonable and honest belief that a crime was being committed.  For example, if an officer goes to the wrong address, where they were told there was a domestic disturbance, and then hears the TV and believes it to be a citizen at the address in imminent danger, they would be justified at breaking down the door and entering the home.  If they then found cocaine and a sawed-off shotgun in the living room, that evidence could be seized and used as evidence in the trial, even though it was found without a warrant.  The officer acted in good faith and made a mistake by thinking the violence playing on television was an actual violent crime.

A great example of this is the Kyllo v. United States case where police used an infrared camera to observe a high amount of heat radiating from the roof and side of Mr. Kyllo's garage, more than his house, and used that as the basis for a search warrant.  In that case, not only were 100+ marijuana plants seized, but illegal firearms as well.  It is of particular interest because it argued whether or not the radiation of heat from the home was on the inside, or the outside of the home.  If on the inside, then it's within the boundary of the home, and unobservable.  However, if the heat was judged to be on the outside of the walls, then it's being broadcast by Mr. Kyllo, with a similar legal effect to paint on the outside of the home.  The case was tossed out because the judge ruled that the use of infrared cameras obtained from the military were not using "normal tools" to conduct the search - a very scary difference.  Had the police obtained infrared cameras from Radio Shack instead of borrowing them from the military, then the case would have likely been upheld.  This is a great case of the exclusionary rule, and where good faith could not be used, because the heat was not observable through normal means.

The Good Faith Exception to the exclusionary rule is where, if the arresting officer was operating under good faith that a crime had occurred (e.g. the infamous "I smell marijuana" claim), then the search would be permissible, even if the officer was in error.  This is very tenuous thread on which to base justice, because it permits fabrication of evidence.  I would hope that all police would act honorably and justly, but unethical cops have sometimes fabricated evidence due to the police sub-culture or feelings of revenge, prejudice (presumed guilty), bias or anger.

The standard of care for Good Faith is "What would a reasonable person do?"  If the basis of the search warrant is faulty but can be shown to be warranted as a reasonable mistake, then the evidence is not excluded, even though not acquired through otherwise legal means.

 I attended a session in the Law Track of the RSA Conference today, entitled "How the Constitution Protects your Cell Phone and Laptop Encryption Keys".  Exclusion and good faith were part of the discussion, as well as the difference between access and testimony (key vs. encryption key), and the differentiation between reasonable suspicion and probable cause, among many other concepts.  

One thing that was pointed out is the Kyllo vs. US hinged on posse comitatus, the principle of which is that the military cannot operate against civilians in the United States.  Since posse comitatus was struck down 12/31/2011, there now would be no restriction in the use of military-grade hardware for the purpose of spying on Americans, with no need for reasonable suspicion or probable cause.  Case law has not established that change as of yet, but the increasing suppression of the 4th Amendment by the courts would likely find that to be the case, and that our sense of "reasonable expectation of privacy" has taken a pretty frightening turn.