In her book, Freedom from Fear, Nobel Peace Prize winner Aung San Suu Kyi wrote, “It is not power that corrupts but fear. Fear of losing power corrupts those who wield it and fear of the scourge of power corrupts those who are subject to it.”  How fear is used for power was explained by Michael Crichton, in his book State of Fear, when he succulently wrote, “Social control is best managed through fear.”  Clearly, it cannot be doubted that control is created by having social and/or political power.  It is a lesson Donald Trump learned from his father and exploits today.

Donald Trump's father was Fred Trump.  There have been questions whether Fred Trump was a member of the KKK.  Horowitz, Jason, "First Draft: In Interview, Donald Trump Denies Report of Father's Arrest in 1927". The New York Times (September 22, 2015).  Interestingly, folk singing legend Woody Guthrie, was a tenant in one of Trump's apartment complexes in Brooklyn.  Guthrie criticized Trump as a landlord. He wrote lyrics that accused his landlord of stirring up racial hate "in the bloodpot of human hearts".  Control by fear was a principle therefore not foreign to the Trump family household.

Donald Trump is no different than his father.  Very early on Trump specifically spoke to people how the whole system was rigged and it would have to be destroyed.  But perhaps there is no better example of Trump's fear mongering than his attack on immigrants (by the way, did you know Trump was likely not conceived in America?).  Trump has said overtly immigrants cause crime.  Trump said, "[C]ountless Americans who have died in recent years would be alive today if not for the open border policies of this administration."  That is simply not true.  Numerous studies , over the years, have found that immigrants are less likely to commit crimes than people born in the United States.  As the Police Foundation has indicated, there simply is no documented evidence for the proposition that undocumented immigrants commit a disproportionate share of crime.

But who cares about the facts?  Causing fear controls people.  One study of fear as a control explained it directly:  (a) fear appeals are effective at positively influencing attitude, intentions, and behaviors; (b) there are very few circumstances under which they are not effective; and (c) there are no identified circumstances under which they backfire and lead to undesirable outcomes.

An article in The Atlantic perfectly summarizes Trump's appeal to fear.  “I’m scared,” a 12-year-old girl told Trump at a campaign rally in North Carolina. “What are you going to do to protect this country? “You know what, darling?” Trump replied. “You’re not going to be scared anymore. They’re going to be scared.”

A case before the US Supreme Court, McWilliams v. Dunn, should not even be a question if courts are really committed to procedural fairness. 
The Sixth Amendment to the U.S. Constitution provides, in relevant part, that a person standing criminal trial has the right to the assistance of an attorney for his defense. In Ake v. Oklahoma, the Supreme Court interpreted that portion of the Sixth Amendment to mean that a defendant also has the right to an expert “to assist in evaluation, preparation, and presentation of the defense.” It is not clear, however, whether a defendant’s right to such an expert entitles him to an independent expert, devoted to advocating specifically for the defense’s case. 
That's like saying the Sixth Amendment clearly entitles criminal defendants to the assistance of an attorney but it is not clear if the Sixth Amendment guarantees an attorney that is independent, devoted to advocating specifically for the defense's case. Ake follows from the right to counsel recognized in Gideon v. Wainwright and ensures every defendant has an opportunity to present a defense fairly within the adversary system. McWilliams further argues that Justice Rehnquist’s dissent in Ake confirms that Ake clearly established the right to an independent expert because he disagreed with the Court’s holding that due process requires appointment of an expert who assists in “evaluation, preparation, and presentation of the defense,” arguing instead that a defendant is entitled only to a competent expert. McWilliams contends that Alabama Court of Criminal Appeals failed to apply this law by only availing McWilliams of the assistance of a mental health expert that he shared with the prosecution.
Alabama asserts that when Ake called for a mental health expert that was “independent” of the prosecution, it meant a neutral expert; one that was not selected, hired, or directed by the prosecution. Alabama contends that McWilliams mistakenly interprets “independent” to mean beholden to the case of the defense. Moreover, because Ake involved the claim that the defendant received no assistance at all, Alabama concludes that it would not be proper to extend the legal holding beyond the facts of Ake. Let's face it, the motivation behind Alabama's argument is they do not want to have to pay for experts for indigent criminal defendants.
The National Association of Criminal Defense Lawyers (NACDL) explains, however, the rationale of a California court which said that such a requirement makes effective the dictate that defense counsel be afforded reasonable opportunity to prepare for trial. NACDL further points out that the Texas Court of Criminal Appeals, in 1993, held that a single neutral mental health expert is not sufficient to satisfy the Due Process Clause under Ake. Therefore, because numerous states support the independent expert requirement, it was likely clearly established by Ake.
SOURCE: LEGAL INFORMATION INSTITUTE

Once there was a Lion, a Fox, a Jackal, and a Wolf who agreed to go hunting together, sharing with each other whatever they found.  One day the Wolf ran down a Stag and immediately called his comrades to divide the spoil.  Without being asked, the Lion placed himself at the head of the feast to do the carving, and, with a great show of fairness, began to count the guests.  "One," he said, counting on his claws, "that is myself the Lion. Two, that's the Wolf, three, is the Jackal, and the Fox makes four."  He then very carefully divided the Stag into four equal parts.

"I am King Lion," he said, when he had finished, "so of course I get the first part. This next part falls to me because I am the strongest; and this is mine because I am the bravest."  He now began to glare at the others very savagely. "If any of you have any claim to the part that is left," he growled, stretching his claws menacingly, "now is the time to speak up."

The rule of this story?  Fairness is decided by the one who has power to define fairness.  Put less elegantly, might makes right.

Do you believe that the criminal justice system should be run by the rule of might makes right?   Unfortunately, right now the answer appears to be yes.  This conclusion is evidenced if what happens day in and day out when someone who is charged with a crime has bail set on their case.  That “additional assurance of the presence of an accused "is the only legitimate use of cash bail.  Monetary conditions of release cannot be employed to respond to concerns for public safety, prevent future criminal conduct or frighten the defendant or to placate public opinion." Hudson v. Parker, 156 U.S. 277, 285 (1895) (the only reason for bail is to ensure that the defendant appear for trial); Wis. Stat. § 969.01(1) and (4); ABA Criminal Justice Standards – Pretrial Release, Standard 10-1.4(d) and 10-5.3(a) and (b).  See also, Ex parte Verden, 237 S.W. 734, 737 (Mo. 1922) (“Confinement in jail prior to trial is not authorized because defendant may eventually be convicted of the charge by a jury, or as any part of his punishment, if guilty, but to assure his presence when the case is called for trial and during the progress thereof. The only theory on which bail can be denied in any capital case is that the proof is so strong as to indicate the probability that defendant will flee if he has the opportunity, rather than face the verdict of a jury.”) (emphasis added); Hampton v. State, 42 Ohio St. 401, 404 (1884) (“The object of bail is to secure the appearance of the one arrested when his personal presence is needed; and, consistently with this, to allow to the accused proper freedom and opportunity to prepare his defense. The punishment should be after the sentence.”).  The amount shall be determined solely in reference to the purpose of bail, namely, to assure the appearance of the accused when it is his duty to appear to answer the criminal prosecution.”  Rohl v. State, 90 Wis. 2d 18, 53 279 N.W.2d 731, 737 (Ct. App. 1979).

Most judges know this law.  Unfortunately, many judges disregard this law when setting bail.  Being the lion in the legal system has its advantages.

Rather than setting cash bail for the only legitimate reason, commentators have noted that judges frequently set bail high enough to coerce guilty pleas, gain cooperation and impose punishment "under the guise of assuring the defendant's appearance for trial."  Hans Zeisel, Defining the Limits of Crime Control and Due Process: The Limits of Law Enforcement, 73 CAL. L. REV. 212, 233 n.43 (1985).  Commentators also indicated that judges often set high bail to prevent defendants from being released and having the opportunity to commit additional offenses -a sort of sub rosa pretrial detention that encountered much criticism from those insisting that the only constitutionally authorized reason to set bail was that suggested in Stack v. Boyle-ensuring the defendant's appearance at trial.  John S. Goldkamp, Danger and Detention: A Second Generation of Bail Reform, 76 J. CRIM. L. & CRIMINOLOGY 1. 15 (1985); John S. Goldkamp, et al., PERSONAL LIBERTY AND COMMUNITY SAFETY: PRETRIAL RELEASE IN CRIMINAL COURT 180, 307-08 (1995).  It is “difficult to reconcile with traditional American law the jailing of persons by the courts because of anticipated, but as yet uncommitted, crimes. Imprisonment to protect society from predicted but unconsummated offenses is . . . unprecedented in this country and . . . fraught with danger of excesses and injustice. . . ."United States v. Salerno, 481 U.S. 739, 766 (1987), Marshall, J., quoting Justice Jackson in Williamson v. United States, 95 L.Ed. 1379, 1382 (1950). 

“[S]tudies indicate that a defendant's statistical chances of gaining acquittal are significantly derogated by imposition of pretrial detention. (Citing Anne Rankin, The Effect of Pretrial Detention, 39 N.Y.U.L.Rev. (1964) and U.S. Accounting Office, 25 (1987) Criminal Bail: How Bail Reform is Working in Selected Districts) (A Defendant is twice as likely to be incarcerated if detained during pretrial.) In fact, a first offender who is denied bail pending trial is now more likely to be convicted and severely sentenced than a career criminal with ten prior arrests who has obtained a pretrial release order. (Citing Marc Miller & Martin Guggenheim, Pretrial Detention and Punishment, 75 Minn. L. Rev. 335, 339, n.33 (1990) Thus, pretrial detention determinations implicate not only a defendant's pretrial liberty interests, but also ultimate determinations of acquittal or conviction.”  Harwin, Michael. Detaining for Danger under the Bail Reform Act of 1984: Paradoxes of Procedure and Proof. 35 Ariz. L. Rev. 1091 (1993).

The most frequently made bail argument by the prosecution, and one that does have an intuitive appeal, is that “the serious nature of this offense and the need to protect the community requires cash bail in this case.”  But do facts support this intuitive assumption?  Examination of intuitive beliefs is important since intuition at one time indicated the world was flat and the sun revolved around the earth.  No amount of intuitive belief, however, changed the facts that we now know to be the opposite. 

One study of state practice, focusing upon a sample of felony cases filed in the 75 most populous counties during a single month, provides an especially revealing answer to this question.  Reaves & Perez, Pretrial Release of Felony Defendants, 1992, Department of Justice, Bureau of Justice Statistics Bulletin 1, 4 (Nov.1994).  The study concerned felony cases filed during the month of May 1992 and Milwaukee, Wisconsin was one of the counties studied.  According to this study of felony defendants released prior to case disposition, 3 out of 4 made all scheduled court appearances. Logically, whether a felony defendant released on a case is a danger to the community is measured by the percent of those rearrested while released on bail.  Only approximately 14% of released defendants were rearrested for an offense allegedly committed while on pretrial release, 10% for a felony. Thus, not even 25% of the released felony defendants reoffended while released on bail, with only 10% for a felony. As for the 37% of felony defendants who were detained until disposition of their case, 5 out of 6 had bail set but were unable to secure their release, while the remainder (17% of detained defendants and 6% of all defendants) were ordered held without bail. As for those held on bail, the median bail amount was $10,000 (as compared to a median of $3,500 for released defendants).

The long-term implication of how high cash bail served as a coercive method to resolve a case was also found in this study.  The median time from the original felony arrest to adjudication was 118 days for released defendants and 46 days for those detained; the felony conviction rate for detained defendants was 70%, compared to 45% for released defendants, and upon conviction 87% of detained defendants (as compared to 51% of the released defendants) were sentenced to incarceration.

The lions have spoken.  Defendants will of course be granted bail.  But the amount of bail will be in an amount more than you can afford so you stay in custody.  If you disagree how the lions have set bail, now is the time for you to speak up.

Prosecutors play a “special role” in our justice system. Strickler v. Greene, 527 U.S. 263, 281 (1999); West v. State,1 Wis. 209, 232(1853)(when the State commences a criminal prosecution, it is as much interested in vindicating the innocence of one wrongfully accused, as in convicting one who is really guilty).  Like governmental knowledge of exculpatory materials, governmental knowledge of perjury is, Kyles confirms, a Brady v. Maryland, 373 U.S. 83 (1963). “situatio[n].”  Kyles v. Whitley, 514 U.S. 419, 433 (1995). Charging prosecutors with knowledge of all persons “acting on the government’s behalf in the case,” Kyles, 514 U.S. at 437, encourages them to prevent perjury in the first place.
 
Likewise, the prosecution has the affirmative obligation to respect the constitutional rights of a defendant, and to avoid conduct that would violate those rights. ''(The prosecutor) is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all.''  Berger v. United States, 295 U.S. 78, 88 (1935). As a “sworn minister of justice,” a prosecutor “must remember that, though unfair means may happen to result in doing justice to the [defendant] in the particular case, [ ] justice so attained is unjust and dangerous to the whole community.”  O’Neil v. State, 189 Wis. 259, 261-62, 207 N.W. 280(1926).  “In a government of laws, existence of government will be imperiled if it fails to observe the law scrupulously. . . . Crime is contagious.  If the Government becomes a law breaker, it breeds contempt for law.”  Olmstead v. United States, 277 U.S. 438, 471(1928)(Brandeis, J., dissenting).
 
It certainly is not surprising that, in their landmark study of errors leading to the conviction of innocent people, Professors Radelet and Bedau discovered that the "most frequent [is] perjury by prosecution witnesses." M. Radelet, H. Bedau, C. Putnam, In Spite of Innocence 18 (1992). See also H. Bedau & M. Radelet, Miscarriages of Justice in Potentially Capital Cases, 40 Stan. L. Rev. 21, 56-57 (1987);id., at 60 (describing witness error and perjury in particular as "by far the most frequent cause of erroneous convictions," accounting for twice as many erroneous convictions as any other error). See also Barry Scheck, Peter Neufeld & Jim Dwyer, Actual Innocence: Five Days to Execution and Other Dispatches from the Wrongly Convicted (2000) (of the cases where a defendant's innocence could be established by DNA evidence, 21% of the erroneous convictions were based in part on false or misleading testimony by jail-house informers).
 
How do these obligations translate in domestic violence cases where "[v]ictims of domestic violence are more prone than other crime victims to recant or refuse to cooperate after initially providing information to the police. Recent evidence suggests that 80 to 85 percent of battered women will recant at some point."  Tom Lininger, Prosecuting Batterers After Crawford, 91 VA. L. Rev. 747, 768 (2005).  See also, State v. Coppage, 124 P.3d 511, 515 (Kan. Ct. App. 2005) (noting domestic violence victims "often recant their initial statements to police"); State v.Stringer, 897 P.2d 1063, 1066 (Mont. 1995) (discussing victim who provided written statement of repeated stabbing from defendant, but victim later testified that she provided a false statement and had been cut when defendant attempted to prevent her from slitting her wrists).
Must a prosecutor turn over to the defense a statement by an alleged victim which indicates the original story told to the police by the victim was not true?  Because recanting involves an attempt to withdraw a prior statement, it almost always involves falsity in either the original or latter statement.  So can an ethical prosecutor simply make believe an alleged victim has not recanted and not disclose the recantation to the defense because, well, the prosecutor knows all women will recant their story?  After all, in 2004 the National District Attorneys Association said that domestic violence alleged victims who recant should get a get out of jail free card and not be held accountable for presenting false evidence.  National District Attorneys Association Policy Positions on Domestic Violence (Oct. 23, 2004) at p.13
 
Absolutely not!  A prosecutor must " make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense."  American Bar Association. Model Rules of Professional Conduct. Rule 3.8 Special Responsibilities of a Prosecutor. (2012).  "Truthful testimony is essential to the administration ofjustice and the functional capacity of every branch of government."  Jessica Fischweicher, Perjury, 45 AM. CRIM. L REV. 799,799(2008).  If there are no consequences for dishonesty in the courtroom the system is tacitly sanctioning dishonesty. "The judicial branch, unlike the executive and legislative branches of government, depends almost entirely on its perceived legitimacy and moral authority to carry out its important functions."  John L. Watts, To Tell the Truth: A Qui Tam Action for Perjury in a Civil Proceeding Is Necessary to Protect the Integrity of the Civil Judicial System, 79 TEMP. L REV. 773, 784 (2006).
 
The prosecution has the affirmative obligation to respect the constitutional rights of a defendant, and to avoid conduct that would violate those rights. ''(The prosecutor) is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all.''  Berger v. United States, 295 U.S. 78, 88 (1935). As a “sworn minister of justice,” a prosecutor “must remember that, though unfair means may happen to result in doing justice to the [defendant] in the particular case, [ ] justice so attained is unjust and dangerous to the whole community.”  O’Neil v. State, 189 Wis. 259, 261-62, 207 N.W. 280(1926).  “In a government of laws, existence of government will be imperiled if it fails to observe the law scrupulously. . . . Crime is contagious.  If the Government becomes a law breaker, it breeds contempt for law.”  Olmstead v. United States, 277 U.S. 438, 471(1928)(Brandeis, J., dissenting).
 
Simply put, the prosecution has a duty to not present testimony it knows to be false.  Napue v. Illinois, 360 U.S. 264, 269-70 (1959); Mooney v. Holohan, 294 US. 103, 112 (1935); Commonwealth of N. Mariana Islands v. Bowie, 243 F.3d 1109, 1118-19 (9th Cir. 2001).The State and its representatives to protect the system against false testimony. Commonwealth of N. Mariana Islands v. Bowie, 243 F.3d at 1118. "Given the manifest reason to question the veracity of the prosecution's witnesses, the Constitution required a prompt pretrial investigation of the integrity of the government's evidence before the witnesses were called to the stand." Id., at 1123.  Emphasis added.  It is for this reason--the clear threat to the innocent--that "few things are more repugnant to the constitutional expectations of our criminal justice system than covert perjury, and especially perjury that flows from a concerted effort by rewarded criminals to frame a defendant." Bowie, 243 F.3d at 1114. In a very real sense, "false testimony and false evidence corrupts the criminal justice system and makes a mockery out of its constitutional goals and objectives." Id., 243 F.3d at 1124.  All "perjured relevant testimony is at war with justice, since it may produce a judgment not resting on truth. Therefore it cannot be denied that it tends to defeat the sole ultimate objective of a trial."  In re Michael, 326 U.S. 224, 227 (1945).  Again, because recanting involves an attempt to withdraw a prior statement, it almost always involves falsity in either the original or latter statement. 
 
Where the Government knew or should have known of false testimony by one of its witnesses, a conviction must be set aside unless “there is no reasonable likelihood that the false testimony could have affected … the jury.”Shih Wei Su v. Filion,335 F.3d 119, 127 (2d Cir. 2003) (internal quotation marks and citation omitted).  A conviction will fall when the prosecution, "although not soliciting false evidence, allows it to go uncorrected when it appears," even though the testimony may be relevant only to the credibility of a witness.  Giles v. Maryland, 386 U.S. 66, 74 (1967).  Therefore, the prosecutor's duty to protect the criminal justice system is not discharged in a case simply by ignoring the content of a recantation letter and by turning it over to the defense. Bowie, 243 F.3d at 1117.  Instead, it must be stressed the constitution requires prosecutors to promptly investigate a recantation letter and to interrogate the witnesses about it. Id."A prosecutor's 'responsibility and duty to correct what he knows to be false and elicit the truth' requires a prosecutor to act when put on notice of the real possibility of false testimony."Bowie, 243 F.3d at 1117-18,quotingNapue v. Illinois, 360 U.S. at 269-70. The underlying principle is clear. Napue v. Illinois, 360 U.S. at 269.Theprosecutioncannot circumvent this prohibition simply by informing the defense of the taint.  Commonwealth of N. Mariana Islands v. Bowie, 243 F.3d at 1118.
 
A good summation of the law on this point was given in Commonwealth v. St. Germain, 381 Mass. 256, 261 & n.8 (1980):

The prosecutor's office is . . . the spokesman for the Government." Giglio v. United States, 405 U.S. 150, 154 (1972). "The police are also part of the prosecution, and the taint on the trial is no less if they, rather than the State's Attorney, were guilty of the nondisclosure." Barbee v. Warden, Maryland Penitentiary, 331 F.2d 842, 846 (4th Cir. 1964). "The prosecuting attorney's obligations . . . extend to material and information in the possession or control of members of his staff and of any others who have participated in the investigation or evaluation of the case and who either regularly report or with reference to the particular case have reported to his office." A.B.A. Standards for Criminal Justice, Standards Relating to Discovery and Procedure Before Trial 2.1(d) (Approved Draft 1970). "To the extent this [requirement] places a burden on . . . prosecution offices, procedures and regulations can be established to carry that burden and to insure communications of all relevant information on each case to every lawyer who deals with it." Giglio v. United States, supra.
 
Specifically it should be remembered that victim witness advocates “guide crime victims, their family members, and witnesses through the criminal justice process.  They explain the process of a criminal prosecution;  notify victims and witnesses of the scheduling of proceedings and the final disposition of a case;  and provide information about the availability of witness protection, witness fees, financial assistance, and other social services, including creditor and employer intercession services, where appropriate.     They help victims and witnesses “cope with the realities of the criminal justice system and the disruption of personal affairs attending a criminal prosecution during a time of personal trauma.”  Commonwealth v. Harris, 409 Mass. 461, 470, 567 N.E.2d 899 (1991), Moreover, performance these functions had traditionally fallen to the prosecutors themselves but with the increase in crime prosecutors and the perception that the prosecution was not victim friendly, many States created victim-witness assistance programs and hired personnel to focus directly and solely on protecting victims' rights.  Commonwealth v. Bing Sial Liang, 434 Mass. 131, 134 (2001).  Advocates are included in the statute's definition of "prosecutor" and generally are employees of the prosecution.  Id at 135.  Therefore, “the function that advocates perform as part of the prosecution team, the work of advocates is subject to the same legal discovery obligations as that of prosecutors and their notes are subject to the same discovery rules.”  Id.
This is because “the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.” Kyles v. Whitley, 514 U.S. 419, 437 (1995); Cone v. Bell, 129 S. Ct. 1769 (2009) (obligation to disclose evidence may be broader under statutory and ethical rules); Commonwealth v. Frith, 458 Mass. 434, 440-441 (2010)(duty of reasonable inquiry); Commonwealth v. Lykus, 451 Mass. 310 (2008) (prosecution has duty to learn of exculpatory evidence known to others acting on the government’s behalf, here the FBI); Commonwealth v. Tucceri, 412 Mass. 401, 407 (1992); Giglio v. United States, 405 U.S. 150, 154 (1972)). Cf. Commonwealth v. Connor, 392 Mass. 838, 851 (1984) (could be argued that composite knowledge of two assistant district attorneys constituted exculpatory information).
 
Further the U.S. Supreme Court has therefore urged “the prudent prosecutor . . . [to] resolve doubtful questions in favor of disclosure.”  Kyles v. Whitley, 514 U.S. 419, 439 (1995) (quoting United States v. Agurs, 427 U.S. 97, 108 (1976)) As the Supreme Judicial Court has noted, in the case of an important witness “the defense will properly view even relatively minor discrepancies in prior statements as exculpatory . . . prosecuting attorneys [should] become accustomed to disclosing all material which is even possibly exculpatory, as a prophylactic against reversible error and in order to save court time arguing about it."  Commonwealth v. St. Germain, 381 Mass. 256, 262 n.10 (1980), citing, Commentary to A.B.A. Standards for Criminal Justice, Standards Relating to Discovery and Procedure Before Trial 2.1(d) (Approved Draft 1970). See Commonwealth v. Wilson, ante 90, 107 n.37 (1980). See United States ex rel. Annunziato v. Manson, 425 F. Supp. 1272, 1280 (D. Conn.), aff'd 566 F.2d 410 (1977).

In the book  Betrayers of the Truth: Fraud and Deceit in the Halls of Science (1982 Simon & Schuster) by William Broad and Nicholas Wade, the authors demonstrate by examples how science not strictly logical process.  Instead science is:

Our conclusion, in brief, is that science bears little resemblance to its conventional portrait. We believe that the logical structure discernible in scientific knowledge says nothing about the process by which the structure was built or the mentality of the builders. In the acquisition of knowledge, scientists are not guided by logic and objectivity alone, but also by such nonrational factors as rhetoric, propaganda, and personal prejudice. Scientists do not depend solely on rational thought, and have no monopoly on it.  Id. at p 8-9.

In other words, some scientists make a mockery of science.  We now know that science, like anything else in this world, can be good or bad.  This is a particularly disturbing realization when you have Attorney General Jeff Sessions ending Justice Department partnership with independent scientists to raise forensic science standards.  Rather than judging science based on the scientific method, Attorney General Jeff Sessions wants to decide if science is correct based on public comments.  Of course, this is an open invitation for junk science to enter the courtroom since many courts favor letting anything resembling an expert opinion in as evidence in the courtroom.  For instance, the FBI in 2015 revealed that experts had overstated the strength of evidence involving microscopic hair analysis in cases dating back decades, and the Justice Department promised a review of laboratory protocols and procedures.  Or there is the specific example of Annie Dookhan.  She is the disgraced prosecution forensic expert who served prison time for evidence tampering on prosecution drug tests in about 40,000 cases from 2003 to 2012.

Given this information, how can one tell good science from bad science that is offered by a scientist?  The following scholars (Adam J. Berinsky, professor of political science at MIT; Marybeth Gasman, professor of higher education at the University of Pennsylvania; Morgan L. W. Hazelton, assistant professor of political science at Saint Louis University; Thomas E. Patterson, professor of government and the press at Harvard University; Eric A. Stewart, professor of criminology at Florida State University) offer this tip sheet:

1. Is this research peer reviewed? A study published in a peer-reviewed journal typically undergoes a detailed critique by a small number of qualified scholars. The peer-review process, while imperfect, is designed for quality control.
2. Is it published in a top-tier academic journal? Top journals are more likely to feature high-quality research. They are more selective about the research they accept for publication. Also, their peer-review process tends to be more rigorous. A measure for gauging a journal’s ranking is its Impact Factor, which can be found in the Journal Citation Reports database. Impact Factor scores range from zero to over 100.
3. Do other scholars trust this work? One indicator of whether other scholars consider a study to be credible is the number of times they cite it in their own research. It can take years, however, for a study to generate a high citation count. You can use Google Scholar, a free search engine, or Web of Science, a subscription-based service, to find citation counts. Journalists also can ask faculty in the field their opinions.
4. Who funded the research? It’s important to know who sponsored the research and what role, if any, a sponsor played in the design of the study and its implementation or in decisions about how findings would be presented to the public. Authors of studies published in academic journals are required to disclose funding sources. Studies funded by organizations such as the National Science Foundation tend to be trustworthy because the funding process itself is subject to an exhaustive peer-review process.
5. What are the authors’ credentials? Knowing where the authors work and how often they have been published can help you assess their expertise in a field of study.
6. How old is the study? In certain fields — for example, chemistry or public opinion — a study that is several years old may no longer be reliable.
7. Do the authors have a conflict of interest? Be leery of research conducted by individuals or organizations that stand to gain from the findings.
8. What’s the sample size? For studies based on samples, larger samples generally yield more accurate results than smaller samples.
9. Does the study rely on survey results? Survey results can be biased if respondents were not chosen by random selection. Beware of any survey that relies on respondents who self-select (for example, many internet-based surveys).
10. Can you follow the methodology? Scholars should explain how they approached their research questions, where they got their data and how they used it. They also should clearly define key concepts and describe the statistical methods used in their analyses. This level of detail is necessary to allow other people to check and replicate their work. Replicability is critical.
11. Is statistical data presented? Authors should present details about the data they are examining and the numerical results of their analyses. This allows others to review their calculations. In some fields, authors make their data sets publicly available.
12. Are the study’s findings supported by the data? Good researchers are very cautious in describing their conclusions – because they want to convey exactly what they learned. Sometimes, however, researchers might exaggerate or minimize their findings or there will be a discrepancy between what an author claims to have found and what the data suggests.
13. Is it a meta-study? Among the most reliable studies are meta-studies, also referred to as meta-analyses. Their conclusions are based on an analysis of multiple studies done on a particular topic.
    
14. See also, the guide by Dr. Jamie Rishikof, a licensed psychologist.
    

The Talmudic laws of mesira prohibited Jews from informing against other Jews to non-Jewish authorities. This ancient "no snitching" rule received modern attention in the Los Angeles case of Rabbi Moshe Zigelman, an Orthodox Jew who was refusing to testify against other Jewish suspects before a grand jury regarding alleged acts of tax fraud and money laudering.  The concept of mesira, which literally means “delivery,” dates back to periods when governments often were hostile to Jews and delivering a Jew to the authorities could lead to an injustice and even death.
 
Unlike Talmudic laws, American law enforcement loves undercover operations and snitches (unless the snitch is a police officer talking about police misconduct.)  Joshua Reeves an assistant professor of new media communications at Oregon State University and the author of Citizen Spies: The Long Rise of America's Surveillance Society explains that police have even encouraged kids to report on their parents:  "In April 1990, a guidance counselor at a Searsport, Maine, elementary school summoned a fifth-grader to her office. The counselor asked the 11-year-old, Crystal Grendell, whether her parents used drugs. After the counselor reassured her that "nothing would happen," Crystal eventually admitted that her parents occasionally smoked pot. At school a few days later, Crystal was greeted by three D.A.R.E. police officers, who interrogated her about her parents' drug use. The officers threatened Crystal, saying her parents would be arrested if she didn't tell them everything she knew about her mother and father's recreational drug habits. The officers then warned her against telling her parents about their encounter, claiming that "often parents beat their children after the children talk to police."
 
Records suggest the government's network of cooperators is vast: In 2005, the DEA estimated it had 4,000 informants.  There are 15,000 informants working with the FBI. That's nearly three times as many as there were 25 years ago.  In addition, for every informant officially listed in the bureau's records, there are as many as three unofficial ones, according to one former high-level FBI official, known in bureau parlance as "hip pockets."  According to University of Wisconsin-Whitewater Police Chief Matt Kiederlen, "[a]lmost all police departments use confidential informants."  Incidentally, UW-Eau Claire and UW-Whitewater No. 2 and No. 11 in the nation respectively for having the highest proportion of on-campus drug arrests.
 
So what's wrong with a snitch?  According to Northwestern University Law School's Center on Wrongful Convictions, 45.9 percent of documented wrongful capital convictions have been traced to false informant testimony, making "snitches the leading cause of wrongful convictions in U.S. capital cases."  And let's be clear what a snitch is:  they can beat people, maim them, or if need be, kill people for the right price.  Law enforcement usually needs to protect us from them.  But instead of protecting society from a snitch, prosecutor's offices enter into secret pacts with him: If the snitch will testify for the state concerning an alleged prosecution, the snitch can get cash; weapons and drug charges pending against him dropped; he can be immunized from prosecution for a offenses he admitted taking part in; and can be turned loose on the streets.
Police and prosecutors become heavily invested in using informants to conduct investigations and to make their cases.  As a result, they often lack the objectivity and the information that would permit them to discern when informants are lying.  "[T]his marriage of convenience is fraught with peril, it is nearly devoid of judicial or public scrutiny as to the propriety, fairness, or utility of the deals being struck. At the same time, it is a quintessential expression of some of the most contentious characteristics of the modern criminal system: law enforcement discretion, secrecy, and the increasing informality of the adjudication process.  The law enforcement practice of relying heavily on snitching creates large numbers of criminal informants who are communal liabilities. Snitches increase crime and threaten social organization, interpersonal relationships, and socio-legal norms in their home communities, even as they are tolerated or under-punished by law enforcement because they are useful. "

BY: David Ziemer
http://wislawjournal.com/blog/2010/04/19/commentary-wanted-litigators-not-social-workers/
I recently attended a lecture at Marquette by former U.S. District Court Judge Mark R. Filip.
Among the things he said is that judges, however learned in the law they may be, have no special moral training. And that sentencing a defendant, unlike deciding an evidentiary motion, is essentially a moral judgment, not a legal one.
I found myself in agreement at the time, but now I’m reconsidering. The fault in Judge Filip’s analysis is that we don’t live in a moral society; we live in what the Danish author Henrik Stangerup called “the therapeutic society,” in his novel, “The Man Who Wanted to be Guilty.”
“What do I care?” you ask.
The problem is that when a moral society is replaced with a therapeutic one, and at the same time the courts eviscerate the “technicalities” that attorneys used to use to avoid their clients’ convictions, you take all the fun out of practicing criminal defense.
I am friends with many lawyers who proudly proclaim, “I’m basically a social worker with a law degree.”
But my best friends in the profession are attorneys who would like nothing more than to proudly proclaim, “I’m a litigator; not a social worker.” Unfortunately, they can’t do that and earn a living.
The plain fact is that nowadays, sentencing is the most important part of the vast majority of criminal cases. And in a therapeutic society, the social worker with a law degree is, as much as I hate to admit it, a better attorney for most defendants than a legal expert.
It is a disgrace that in order to keep food on the table, the best and brightest in the criminal defense bar must act like lowly social workers and pander to our therapeutic society during sentencing hearings, when they should be successfully suppressing evidence and avoiding convictions altogether.
Even if a criminal defense attorney fails to suppress the evidence in a drug case, he should be able to go to sentencing and make his recommendation to the judge based on the assumption that his client takes drugs because he likes to get high.
Instead, the attorney has to prattle off a lot of mumbo-jumbo about “self-medication.”
Hard-nosed criminal defense attorneys are being starved out of the profession because the system places more value on therapeutic judgment than legal judgment. And that’s a bigger crime than the one at issue in any case I ever tried (the key work being “tried,” not “performed social work for”).
I once had a client convicted of burglary or armed robbery or something along those lines. In the presentence report, it said he suffered from “PDU.” Neither my client nor I knew what that meant, and he insisted on knowing.
So before we could proceed with sentencing, I had to go dig up the Diagnostic and Statistical Manual of Mental Disorders, or DSM-IV, and look up the term.
It stood for “personality disorder – unclassified.” The client, quite reasonably, asked what that meant, and I replied, “It means you have a bad attitude.”
He was very satisfied with that response, because it was true.
The question is, why couldn’t the social worker who prepared the presentence report have just said that, rather than using gobbledygook from the DSM?
The answer is that to do so would be to acknowledge that people commit armed robberies because of moral failings rather than mental disorders. And when a therapeutic society replaces a moral one, calling a person’s action a sin and the result of free will is the only sin that’s left.

The family traditionally has occupied a unique and protected position in American jurisprudence; courts recognized that the family's autonomy and freedom from state interference were crucial to its own integrity and to the welfare of the nation.  L. WARDLE, C. BLAKESLEY & J. PARKER, CONTEMPORARY FAMILY LAW §§ 1.08-1.09 (1988) (discussing courts' recognition of family autonomy and the right of parents to raise their children without state interference).  The United States Supreme Court has held that "constitutional interpretation has consistently recognized that the parents' claim to authority in their own household to direct the rearing of their children is basic in the structure of our society."  Ginsberg v. New York, 390 U.S. 629, 639 (1968).  Emphasis added.  The United States Supreme Court has “recognized on numerous occasions that the relationship between parent and child is constitutionally protected." Quilloin v. Walcott, 434 U.S. 246, 255 (1978).  This is "basic civil rights of man," Skinner v. Oklahoma, 316 U.S. 535, 541 (1942), and "rights far more precious . . . than property rights." May v. Anderson, 345 U.S. 528, 533 (1953).  United States Supreme Court decisions “establish that the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition.”  Moore v. City of East Cleveland, Ohio, 431 U.S. 494, 503 (1977) (plurality opinion).  Indeed, when confronted with a case involving parent and child, a court must give great weight to the sanctity for the relationships that develop within the unitary family.  Michael H. v. Gerald D., 491 U.S. 110, 123-24 (1989) (plurality opinion) (rejecting biological father’s liberty interest for the historically recognized rights of the marital father).
 
It is plain that the fundamental liberty interests of a parent in the companionship, care, custody, and management of her child "come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements." Kovacs v. Cooper, 336 U.S. 77, 95 (1949) (Frankfurter, J., concurring).  The private interest in question here, that of a parent who has raised a child, undeniably warrants deference and, absent a powerful countervailing interest, protection.  Stanley v. Illinois, 405 U.S. 645, 651 (1972).  See, Kenosha Cnty. Dep't of Human Servs. v. Jodie W., 2006 WI 93, 293 Wis. 2d 530, 716 N.W.2d 845 (holding that the mother, Jodie, had a fundamental liberty interest in parenting her son). 
 
The Wisconsin Legislature has recognized that care, custody, and management of a child by a parent includes the right to “train and discipline” the child.  Wis. Stat. § 48.02(12).  "Discipline" is defined as "instruction, comprehending the communication of knowledge and training to observe and act in accordance with rules and orders."  Black's Law Dictionary 464 (6th ed. 1990)  Interestingly, people are unsure of the meaning of discipline as “discipline” as it is currently in the top 1% of lookups at Merriam-Webster.com.  http://www.merriam-webster.com/dictionary/discipline  By definition, it is also synonymous with "correction," ("To punish (as a child) with a view to reforming or improving." Merriam Webster's Collegiate Dictionary 260 (10th ed. 1996)); "chastisement,"  ("To inflict punishment on (as by whipping); ... to censure severely." Id. at 194, http://www.merriam-webster.com/dictionary/chastisement) Emphasis added; "punishment,"  ("Suffering, pain, or loss that serves as retribution." Id. at 947); and "penalty."  ("A disadvantage, loss, or hardship due to some action." Id. at 858).  The term “train” means to “to form by instruction, discipline, or drill”  Merriam-Webster.com, http://www.merriam-webster.com/dictionary/train  These terms denote repeated consequences imposed upon children for moral or legal transgressions.  Because of their emotional and intellectual incapacity, sometimes these consequences must be physical punishment. When discipline is physical, its purpose is not to inflict pain or cause injury, but to improve the behavior of the child.  “Corporal punishment” is defined as the “intentional infliction of physical pain which is used as a means of discipline. Corporal punishment" includes, but is not limited to, paddling, slapping or prolonged maintenance of physically painful positions, when used as a means of discipline.”  Wis. Stat. § 118.31 (2011)
 
The United States Supreme Court has recognized parents must have the freedom to choose how to discipline their own children.  "[F]reedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment." Santosky v. Kramer, 455 U.S. 745, 753, (1982).  This freedom of personal choice in family matters gives parents wide latitude in deciding how to discipline their children without "undue, adverse interference by the State."  Bellotti v. Baird, 443 U.S. 622, 639 n.18 (1979); Prince v. Massachusetts, 321 U.S. 158, 166(1944) (finding there exists a “private realm of family life which the State cannot enter); Maynard v. Hill, 125 U.S. 190, 205 (1888) (the legislature, when not restrained by constitutional provisions and a regard for fundamental rights of citizens which are the basis for all government, will act upon everything).  
 
Protected parental choice has been a reoccurring theme in a number of United States Supreme Court opinions in a variety of contexts.  See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 213-14 (1972) (holding that parents' "fundamental interest" in guiding their children's religious upbringing is reflected in the "history and culture of Western civilization"); Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (holding that marriage and procreation are basic civil rights); Pierce v. Society of Sisters, 268 U.S. 510, 518 (1925) (stating that parents have a liberty interest in guiding their children's intellectual and religious development); Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (recognizing the authority of parents to control their children's education).  The due process, see Moore v. City of East Cleveland, 431 U.S. 494, 501-02 (1977); Meyer, 262 U.S. at 399 and equal protection, see Caban v. Mohammed, 441 U.S. 380, 391 (1979); Stanley v. Illinois, 405 U.S. 645, 649 (1972) clauses of the Fourteenth Amendment, and the Ninth Amendment, see Griswold v. Connecticut, 381 U.S. 479, 487-99 (1965) (Goldberg, J., concurring) (asserting that the Court should consult the "'traditions and [collective] conscience'" of the country as a source of establishing fundamental rights), each provide the family unit with protection from unwarranted state intrusion.  See also, State v. Zittlow, 2001 WI App 121; 244 Wis. 2d 287; 628 N.W.2d 437, citing In re Z.E.R., 225 Wis. 2d 628, 648, 593 N.W. 2d 840 (Ct. App. 1999); State v. Teynor, 141 Wis. 2d 187, 200, 414 N.W.2d 76 (Ct. App. 1987).
 
However, regardless in what Amendment(s) the parent child relationship is found by a Court, "[i]t is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder."  Prince v. Massachusetts, 321 U.S. 158, 166 (1944).  Emphasis added.  See also Troxel v. Granville, 530 U.S. 57, 57 (2000) (parents who have developed a relationship with their children have a fundamental liberty interest in the "care, custody, and control of their children."); Stanley v. Illinois, 405 U.S. 645, 651 (1972).  Part of having the care, custody, and control of a child involves imposing discipline since a parent cannot properly care or control a disobedient child without the ability to discipline the child.  Ingraham v. Wright, 430 U.S. 651, 661 (1977); Wendy Anton Fitzgerald, Maturity, Difference, and Mystery: Children’s Perspectives and the Law, 36 ARIZ. L. REV. 11, 37(1994) (‘[t]he law characterizes the parent’s right to punish a child as constitutional because the right resides in a parent’s broad constitutional right to care, custody, and control of [their] children”).
 
The right of a parent to discipline their child is the “oldest of the fundamental liberty interests recognized by [the United States Supreme] Court.”  Troxel v. Granville, 530 U.S. 57, 65 (2000); In re RGB, 123 Haw. 1, 229 P. 3d 1066, 1121 (2010); In re Doe, 57 P.3d 447, 457 (2002).  This right to discipline includes the right to use reasonable corporal punishment.  Doe v. Lang, 327 F.3d 492, 523 (7th Cir. 2003);  Lang v. Starke County Office of Family and Children, 861 N.E. 2d 366, 378 (Ind. App. 2007).  This is a fundamental constitutional right not dependent upon legislative recognition by statute.  See, e.g., City of Boerne v. Flores, 521 U.S. 507, 545 (1997).  In the substantive due process analysis, it is the State's affirmative act of restraining the individual's freedom to act which is the 'deprivation of liberty' triggering the protections of the Due Process Clause.  DeShaney v. Winnebago County Department of Social Services, 489 U.S. 198, 200 (1989).