Proofiness - Charles Seife [81]
But unfortunately for Barefoot, the other justices rejected the American Psychiatric Association’s argument: “The suggestion that no psychiatrist’s testimony may be presented with respect to a defendant’s future dangerousness is somewhat like asking us to disinvent the wheel,” the justices in the majority wrote. Using phony data was so important to the prosecutorial process that it couldn’t be dispensed with. Besides, the data were acceptable, the justices wrote, because psychiatrists weren’t “always wrong with respect to future dangerousness, only most of the time.”
Four months later, shortly after midnight on October 30, 1984, Thomas Barefoot said, “Sharon, tell all my friends goodbye. You know who they are: Charles Bass, David Powell . . .” Barefoot coughed one last time and then went silent. He was pronounced dead—executed by lethal injection—at 12:24 a.m.
Barefoot was a loathsome character with a long rap sheet. He had shot a police officer while on the run; he was under suspicion of raping a three-year-old girl in New Mexico. He may well have deserved the penalty he received, but if he did, prosecutors shouldn’t have had to rely on Grigson’s proofiness to impose it. Yet they did, and not just with Barefoot. Prosecutors regularly relied on Grigson to dispatch their death penalty cases, using him to construct alternate realities where every person convicted of murder was a latent serial murderer who was just itching to kill again. For more than three decades, Grigson served as an expert witness at hundreds79 of capital murder trials. In most cases, he would declare that the convict was a sociopath who deserved death—sometimes without even bothering to examine the patient. Grigson was well rewarded for his efforts. By the mid-1980s, he was reportedly earning $100 an hour for his death penalty testimony. In 1995, the American Psychiatric Association and the Texas Society of Psychiatric Physicians expelled Grigson for ethics violations, but prosecutors still found him indispensable. They continued to use him in the courtroom—where unethical conduct is apparently no disgrace—to send people to the death house. Grigson continued testifying in court until he retired in 2003.
There are many others like Meadow and Grigson out there, others who use proofiness to convict people or to send them to death. When they dress up nonsense in the garb of absolute truth—through the prosecutor’s fallacy or through expert witnesses or other means—they undermine our justice system little by little.
When it comes to mathematics, it’s chaos in the courtroom. Anything goes; any mathematical argument, no matter how specious, has a chance of carrying the day if the judge isn’t alert enough. If the mood strikes, a judge might deploy his own proofiness to make a point.
A judge’s ruling in an inconsequential case in the D.C. district court a few years ago is a good example. The case had to do with a disused rail line that went through two small cities in Missouri. The Surface Transportation Board—the body responsible for regulating railroads—had given permission for the railway line to start running two trains a day on the line. However, citizens of the cities sued because the railway failed to assess the environmental impact of the trains, as (seemingly) required when there is “an increase in traffic of at least 100 percent” on a rail line. This was the signal for the judge to go to town:
The cities believe that an increase from zero tonnage to whatever gross tonnage is represented by 520 trains per year (10 per week) equals an “increase in rail traffic