Wednesday, August 1, 2012

Popular Crime: A Review

Summer vacation calls for light reading. Believe it or not, that usually does not include the greatest hits of Scalia, Posner, or any of the Judges of Madison County. Nor does it include plaintiff briefing on bogus parallel claims or the virtues of Conte. Nope, in the Summer we stick to nonfiction. We have been fans of Bill James since way back when he sold raggedy little abstracts that ran regression analyses of baseball statistics. James created sabermetrics, an innovative statistical approach to baseball. James taught us that a lot of conventional wisdom in baseball couldn't be more wrong. Bunting and stealing bases are bad. Avoiding outs is good. Three-run homers are very good. James proved that the numbers we grew up focusing on (fielding percentage, rbi's) were nonsense. If you read about baseball today, you will encounter statistics that are baffling to anyone born before 1980: WHIP, WAR, etc. Some statistics, such as on-base percentage, are now pretty familiar to all of us, and James is substantially responsible for their importance.

If you enjoyed Moneyball, thank Bill James. He came up with the analytical methods that were employed by Oakland Athletics General Manager Billy Bean. Those methods gave the Athletics a comparative advantage -- until other teams adopted the same methods.  (By the way, once again, against all expectation and saddled with a tiny payroll, the Athletics are winning.)  What Moneyball is about - what Bill James is about - is something much bigger than baseball. It is about understanding reality. It is about figuring out what is important and what is not so important. And it is about not trusting conventional, received wisdom.

Figuring out what is truly important is hard work. It requires evidence and analysis, not assumptions and arrogance. In drug and device law, the concept of evidence-based decision-making is crucial. But you cannot have evidence-based decision-making without evidence. Bill James wrote about evidence-based decision-making and collecting the right evidence in baseball, but the principle applies in all sorts of human affairs. It turns out that there is another subject matter that Bill James cares for as much as baseball, and he has written a book about it: Popular Crime:  Reflections on the Celebration of Violence. It is now in paperback, and it is good beach or cruise reading.

Here is a distillation of the Jamesian world-view:   “1) The world is vastly more complicated than the image of the world that we all hold in our heads, therefore 2) Nobody really has any idea what will be important to society or to individuals in society or the future.” Popular Crime at 195. James supplies illustrations of these phenomena from both personal history and Big Time history. High school teachers berated James for not paying enough attention to classroom work and for spending too much time writing funny notes and burying himself in the sports pages. Naturally, it turned out that mastering sports statistics and conveying them with humor turned out to be fairly important for James - more so than, say, the Pythagorean theorem or the mugwumps. James also discusses instances where the Talking Heads bemoaned too much news coverage of seemingly frivolous issues at the expense of the Big Picture, when those frivolous issues emerged as the really important ones. During the 1960 presidential debates, the literati ridiculed the obsession on the part of Kennedy and Nixon over two small islands off the coast of China, Quemoy and Matsu. But that discussion became a platform for the candidates to try to out-tough each other over how readily they would commit American forces to fight Communism in far off, relatively insignificant locations. Frivolous?  Pointless? Heard of Vietnam?

James surveys the biggest popular crime stories in American history. A lot of the usual suspects are there: Lizzy Borden, the Lindbergh kidnapping, the Rosenbergs, Dr Sam Shepherd (origin of The Fugitive), the Boston Strangler, and OJ Simpson. James writes in an easy, natural style, and the book moves along quickly. You might notice that many of the cases listed above involve the famous (infamous?) attorney F. Lee Bailey. James argues that Bailey was almost always on the wrong side. That is, according to James, Dr Shepherd was guilty, Albert DiSalvo was likely not the Boston Strangler, Patty Hearst should not have been convicted of bank robbery, and OJ did it. You might disagree with James on those cases, but you won’t be nearly as shocked as you will be by his take on the Kennedy assassination. James is sure that Oswald acted alone. But James believes that the fatal shot did not come from Oswald. Instead, it was an accident, and you will have a hard time swallowing his theory -- until you consider the evidence. Begin reading at page 245. By page 247, shock. By page 248, mind blown.

Some of the most interesting cases are the ones you never heard of before. We had no idea that Alexander Hamilton and Aaron Burr worked together in 1800 to defend an accused murderer in New York City. They prevailed, earning an acquittal for a man who was probably guilty. Four years later, Burr killed Hamilton. No doubt about that one. James also makes several interesting, broader points along the way. For example, police did not believe in the existence of serial killers until relatively recently. Why is that so? Again, James alludes to the complexity of life, and the shortcuts we employ to confront that complexity: “We are desperate to understand the world, we struggle from the moment of birth to understand the world - but it is beyond our capacity. We thus sign on to simplifications of the world that give us the illusion of understanding. Experts are not less inclined to sign on to these simplistic explanations than outsiders, they are more inclined to sign on to them.” Popular Crime at 290. That is a fascinating theory on the foibles of experts. And James probably hasn’t even heard of Dr. Parisian. The press plays a role in disseminating those simplifications, those stories, those ways of simplistically sizing up a complex world. Press coverage of criminal cases used to be a good deal more lurid and circus-like than today. That is why Dr Shepherd's conviction was reversed. James also writes that anxiety about terrorism was at least as pervasive in the 1920s as it is today. Fear of anarchists and foreigners drove the hysteria surrounding the Sacco and Vanzetti trial.

Not surprisingly, James attempts to apply a kind of sabermetrics to criminal cases. He debunks the all-holy prosecutorial triumvirate of motive-method-opportunity. Instead, he postulates a points system that helps determine whether an accused murderer was guilty. Let’s say it takes 100 points to reach a definitive verdict. James would say that if the defendant had been involved in a prior acts of violence toward the victim, that counts for 35 points. And so on. There are lots of other categories and point values and ways of discounting the points. James concludes that Lizzy Borden almost certainly did not give her mother 40 whacks and her father 41. James is not claiming that any mathematical method is really a perfect substitute for the criminal justice system; rather, he suggests it as a useful thought-experiment. James also explores what it is that make some cases truly popular, as opposed to the vast majority of cases that quickly disappear into the mists of time. He looks for tabloid elements, Dreyfus elements (innocent persons wrongly accused), celebrity elements, mystery stories, political elements, bizarre elements (e.g., Jeffrey Dahmer), killers on the loose, organized crime elements, innocent victims, literary elements, etc.

We liked Popular Crime. It is engrossing and insightful. We were eager to turn the pages and greet the next murder. Maybe that confirms what James says about what makes popular crime popular and what his subtitle says about the "celebration of violence."  But the effort to devise statistics to decide cases ends up being the least interesting and least convincing part of the book. Crime and the courts are not as susceptible to statistical analysis as baseball. There are too many vagaries and variables. Plus, statistics might not lie, but people do.  We do not think that computer programs will ever take over the jury's fact-finding function, though that might actually make sense in some areas of the law (antitrust). Presently, there are occasions where there does seem to be a superabundance of irrationality in the judicial system.  An injection of evidence-based decision making would be welcome. Clients often ask us to assess the likely outcome of a trial or a body of litigation. It would be wonderful if we could arrive at a point value system that reliably spat out the value of the case (likeable company witness - 35 points; a judge who freely applies TwIqbal - 25 points; FDA-approved label - 100 points).