Evidence and the very unlikely

OK strange question, how much evidence would you need to prove that an human alien hybrid killed Meredith Kercher?  Assume that were the prosecution's theory.  Assume they had picked someone up and they believed that person was a human alien hybrid.  Assume they were using his alien traits to explain evidence, like he had been able to get through the window because hybrids can jump 12 feet easy, he hadn't left any evidence because hybrids can make their fingers not secrete oils....  This was the prosecution's theory and you as a juror had to rule on the case.  What sort of standard should you hold them to?  You might stay that's a really stupid question, and your reaction is precisely where I want your head at, so bear with me please.

Is it impossible that human alien hybrids exist or just very very unlikely?  You might say impossible.  OK what if there were families of human alien hybrids known to exist, towns which people could visit full of them.  Some had undergone analysis in various biological laboratories and the results were public.    You even knew people, who had met some and see them change shape.  Then you might say, "well then yes I'd believe in them".  In other words, its not impossible its just a question that there is nowhere near enough evidence to believe in something so unlikely.  Very much like Russell's Teapot.  There are lots of good reasons to believe that an animal like the platypus didn't exist, when it was first described and for several years there were debates when it was discovered if it was a fraud or a fluke.  But the evidence overwhelmed the skepticism.  And I think that this is a similar case, you don't really mean "impossible" what you mean instead is highly improbably, that is to say something for which you are going to need lots of high quality evidence.

So given any murder there is a certain percent chance it was done by a human alien hybrid.  There is a certain chance it was done by random quantum effects.  There is a certain chance is it done by a monkey like The Murders in the Rue Morgue.  Those are doubts in any case, they just aren't reasonable doubts, because they are so unlikely.  But remember this situation is different, this is the prosecutor's theory.   Which means the prosecution not only has to prove the crime but because they are using this theory to explain away the counter evidence like the 12 foot jump via. the alien hybrid theory they actually have to provide enough evidence to justify the existence of alien human hybrids.  And of course you are beginning to see where I'm going; while Mignini and Massei's theories may not seem up there with alien human hybrids they are still incredibly unlikely.  So lets work this hypothetical a bit before jumping back to the main case.

There is one more condition.  Maybe even a tremendous amount of evidence doesn't cut it.  The possibility that the pieces of evidence correlate and thus all or most of it is together wrong, that your analysis is wrong, that my analysis is wrong vastly overwhelm the likelihood of those scenarios.  One of the things that will strike you immediately if you read old trials is the sorts of scenarios that are considered likely or unlikely.  Something like an insect disease leading to a local significant shift in a particular insect population (like a bee) leading to a crop failure if it is considered at all, and not in that language, would be treated as unlikely while witchcraft or direct divine intervention are likely explanations for this natural phenomena.  Its hard to account for these variables but they exist with most evidence.     The Structure of Scientific Revolutions, bu Kuhn talks about how science deals with the incredibly unlikely.  Once it shows up it provides it disproves the paradigm of probably, which requires a paradigm shift, and that shift is undertaken only when the evidence becomes truly overwhelming.

Just to put this in perspective lets do a quick through experiment.  Assume you have to decide between just two options A and B (with B being guilty).  Assume that you have pieces of evidence each of which is 70% accurate and fully independent, to help in picking between A and B.  If A and B are equally likely, and your standard of evidence was more likely than not you would just count up the evidence and side without whatever letter had more "evidence" behind it.  For most everyday decisions even 2 pieces of evidence would be 90% and thus good enough.   If OTOH you standard was "beyond a reasonable doubt" say 98% and A and B were still both equally likely, you would only need to go up 4 pieces of evidence.  So this 70% evidence is great stuff for making day to day judgements.

But what if A and B weren't equally likely?  Assume that B were something like a human alien hybrid conjecture and A were something like "drug killing, gang killing, robbery, x-boyfriend, honor killing combined" in other words a grab bag of the alien human hybrid didn't do it.  Lets say that the one in ten billion murders at most are caused by an alien human hybrid. So to meet the reasonable doubt standard we would need B to be 500 billion times more likely based on evidence alone than A.    Which is to say if we have to pick between A and B we are often going to pick A even when most evidence points to B. If it were a pure 70/30 shot then it would take about 23 pieces of non correlating evidence each agreeing,  to make the odds less than 1 in 500 billion.

Ah but happens if I have good quality evidence?  Say 98% evidence like a videotape of my alien human hybrid or a repeatable blood sample that shows him his cells producing a silicon based sugar.  1 piece of evidence for reasonable guilt if A and B are equally likely and only 6 for human alien hybrid.   So its a linear factor of 4.    So if you think one of the pieces of evidence is overwhelming, certainly not as good as a video of the crime.  Go ahead and count it twice.

But here is where it gets tricky notice I keep saying independent.  What if they are not?  Well if they are even slightly dependent on one another that doubles the amount of evidence, moderate and I'm up around 100 pieces of the alien human hybrid.  And If you think about it that feels about right.  You would probably need about 100 anecdotes to believe this murder was committed by an alien human hybrid.  That is to say you believe this evidence correlated about 50% there is some overlap.

Ah....  but you might say.  "Wait a minute, CD!  Nothing in the Meredith Kercher murder theory is as unlikely as an alien human hybrid.  People get into squabbles all the time and someone ends up dead.  Domestic violence is frighteningly common not uncommon".  And you would be right.  You would also be rewriting the prosecution's theory of the case.  And boy is it tempting.  Their theory of the case is tremendously stupid.  It requires us to believe multiple highly low probability things.

Its hard to know exactly what is needed to prove the case and what is rank speculation.  But just starting on a particularly bad part of the report:

Meredith Kercher, returning home around nine in the evening, and without
anything in mind other than having a rest (the night before, Halloween, she had
stayed up very late) and doing some studying. Like her English friends, she thought
she had a class at 10 the following morning, and would not have had any intention
of acquiescing to the demands, held to be of an erotic-sexual nature by what has
already been observed, of whoever entered her room.
Besides, she felt attached to Giacomo Silenzi, with whom she had just started an
intimate relationship, and she was serious young woman with a strong
temperament.

1. How would you know what's on her mind as she is returning home?  What do you think you are writing a novel?
2. Do we really know enough about Meredith's sex life to know whether her 10:00 am class would or would not have had any impact on whether she wanted to have sex.  Heck there would have been many many years without sex if I had to wait till days I could sleep in till noon.
3. How do you know she felt attached with Giacomo Silenzi?  We know she had just started  boffing the pot grower downstairs.  Maybe she just liked his pot?  Maybe she liked his availability.  Maybe she liked the fact that Amanda and Laura had both wanted him and she just wanted to be queen bee?
4. And even the statements themselves, "serious young woman with serious temperament" -- Who is dating a pot dealer and helping him grow the stuff
5. Most people when striking up a conversation with a girl hint around the erotic sexual part a bit.  It might not have been entirely clear.  

And on and on and on goes the rank speculation needed to make this murder work out.   And mind you this is key.  This is paragraph is the evidence that Meredith wouldn't have opened the door and thus someone else let Rudy in.   The fact that someone else let Rudy is the evidence that Amanda had to fake the break in.  Amanda having to fake the break in is one of the key pieces of evidence that Amanda is the murder.

Reading this "evidence" does it sound sufficient to prove beyond a reasonable doubt that Meredith didn't say:

• sure come on in lets smoke some weed and then I gotta go to class or 
• sure my boyfriends away I'd love to play tonight
  or maybe going with different theory, a food theory
• you know I'm already getting sick of pastas, stracciatella I'm totally in the mood for some boiled cabbage, maybe some chips.  I'd love some company!

We are talking a guy who played basketball outside her school and hung with her boyfriend.   This is called the Massei conclusions report, perhaps the Massei wild guesses report would be more fitting?  So lets assume its 80% likely that Meredith didn't open the door herself for Rudy and assuming she didn't open the door that its 80% likely that Rudy had someone let him and given that 80% chance that the someone had to be one of the 4 girls that no one else had a key to a rental apartment that they had had made over the last decade  and 80% that given all this Amanda would have realized she needs to fake a break-in....  well the whole scenario then is only 1 in 3.  And the same way the evidence adds the rank speculation takes the odds down and down and down.  And by way of example, if I used 60% for that the chances would have been just 7.75%.

So you go through the Massei report counting conjectures.  How many of these 80% do you need to make the case.  20, 100,1000?  At 20 its less than 1% likely that things came down the way Massei speculates.  At 100 you are around the one in ten billion we used as a  placeholder for the human alien hybrid.  That's the power of compounding.    It doesn't sound crazy because it is a huge collection of more likely than not theories strung together.  But just multiple them out and you get something incredibly unlikely.  To prove this kind of a sequence, in practice you would need to:

1. Collect evidence
2. Construct a fixed single sequence sequence
3. Collect evidence independent of your evidence in step (1) to confirm / disconfirm your sequence

otherwise you need an astronomical amount of evidence to show you aren't just fitting a conjecture to the facts rather than confirming a conjecture with facts.

The fact is Massei has no idea what happened, because an investigation was never done (see my article on prosecutorial abuse as to why it was never done).  They think they probably have the right people and the rest of the report covers:

a)  Stuff they did investigate
b)  Wild conjectures to tie those scattered pieces of evidence into a case.

And he does hit his conjectures to the facts at hand.  In the pages on the stab wounds and their order he has a high quality autopsy and thus lots of facts he has to fit to.  On the what Meredith was thinking as she approached her door he has essentially none so he is free to assert anything he wants.

There certainly is enough to indict Amanda based on the Massei report, but to convict?  Play a game.  Read the Massei report.  Each time you hit a piece of evidence cancel out 2 conjectures of his, which is being really generous with the evidence.  And that's not counting the fact of how silly some of the conjectures are.

And then there are places where the evidence is just wrong.  I'm not an expert on DNA, one can see extensive evaluation of the evidence all over the web and I don't have the background to know enough to evaluate it.  But this line is different:

Encase forensic analysis software determined, for such time period, that the only files created (last created) or written (last written) were generated, automatically, either by the computer’s operating system or the Firefox web-browser within its own cache: being files generated at regular intervals.

I'm going to get a bit techie for this paragraph, explain how this is total nonsense, feel free to skip it as just an example.  I'd like you if you are on a mac or a linux box to open up a terminal right now and type the phrase man touch.  If you are stuck on a windows box here is what you would have seen link.   Touch is a program designed to change timestamps because it is such a common activity.   Changing those dates are standard Unix activities, I have tons of scripts that modify those dates to things other than their defaults that run on my machine; for example when I push data to the TIVO I script changes to mtime so that it sorts the way I want it on my TV.   Mac's internally have 5 timestamps they associate with files: createDate, contentModDate, attributeModDate, accessDate and backupDate. accessDate implements atime, attributeModDate implements ctime and contentModDate implements mtime. The fsCatalogInfo attribute for a file in objective-C (the default language for system's programming on an Apple) has those five as variables (i.e. for example fsCatalogInfo.createDate), which is to say this is not some deeply hidden attribute, Apple invested money in making these timestamps alterable because programs need to do that so frequently.    Other than those 5 attributes there is no place any time information is stored about file manipulation.    You can in 3 seconds have a file on your mac that was last modified 10 years before you owned the computer, heck before it was created as far as the filesystem is concerned.  And there is no secondary record of these changes.   With an average user timestamps are obviously good evidence.   By definition average users are people who think about how to work their computer not how their computer works.  But Raffaele is a computer science graduate who is doing a degree in genetic programming, he's spending all day thinking abut how computers work.  For him,  the timestamp mean nothing more than the times he choose to assign to files.   He's probably 10x the programmer I am, I'm way over the hill, he's in his prime.  If this were Amanda's computer I'd think "determined that the only files created" was too strong I'd weaken it to something like "indicates that most likely the only files created".    For Raffaele's I'd say "a weak easily modifiable record which at the time of analysis showed..." is a fair characterization. [note added 1/12/11: Rose below translated from Italian what they actually used.  I'm leaving this unmodified for continuity, but the actual forensic method was much less reliable than the one I assumed they used]

I'm nitpicking the timestamp paragraph,  because that is one where I'm not quoting other experts.   I know for a fact that Massei is indicating that something that is only likely as an absolute certainty.     This is at least for me a perfect example of the basic problem with the Massei report, it replaces possible with likely, likely with almost certainly true and almost certainly true with tautologically true.  He takes weak evidence and argues that it shows things way beyond what it does in fact show.  Please google everything in these two paragraphs, check that everything I'm saying about timestamps is absolutely true.  Everyone does this with the inconsequential, "I'm sure I put gas in the car" as shorthand for "I'm usually pretty good about filling it once it gets below half full, and 3 days I remember it was less than 1/2..."  But if my job depended on it, I'd go out and check the car and  I'd still fill it up just in case the gas gauge wasn't working right.  If someone's life depended on it, I'd try and fill it and I'd make sure to have a spare gas container in the trunk.  And that's the level of certainty I would want before locking someone away for a quarter century, beyond a reasonable doubt.   And that is what the law requires.

 And then ask yourself did the forensic analysis really determine what happened on that computer or did it just provide a fallible piece of evidence about what happened on that computer?  And if it didn't then Raffaele can be telling the truth about what he and Amanda did during the time of the murder.  This little forensics was considered a major blow to their alibi.    And while you are thinking about that, read the report for yourself and go find yourself a dozen example like this of these unbelievable leaps of pure conjecture.   In the end there is one key question you absolutely must be able to answer before taking the awesome responsibility of destroying 3 children:

• What lethal acts do we know for certain that Amanda Knox performed?
• What lethal acts do we know for certain that Raffaele Sollecito performed?
• What lethal acts do we know for certain that Rudy Guede performed?

And I have yet to hear an answer to that question.

_____

See also:

• A similar argument was made by Raffaele's attorney's in his appeal (link), translated in the comments to this post here.  

Amanda Knox and Prosecutorial Abuse

One of the few things both sides of this case agree is that it breaks your heart. If you take a look at the 3 pictures for the 3 articles you are immediately struck. The picture for the first article shows Amanda in her first year of prison: a joyful kid full of life and spunk, a mischievous little girl flirtish looking at the camera. She's so obviously full of hope, she can't imagine that everything won't work out in the end. You can see in those eyes the sort of girl to run off to Italy on a whim and immerse herself in the language, the people the culture for the sheer joy of discovery and adventure. Probably the same way she rock climbed right before the incident or climbed trees a few years before that. People were offended, but I think jealous is a better word. How dare she make it to 20 with that profound childlike joy fully intact?

The picture for the second article is the same girl experiencing fear. There is a hunted look in her eyes. She is still in denial that Mignini would be able to keep her in his box for decades but no denial about his intent. The carefree girl is gone replaced with a murder suspect trying to navigate the minefield of being a prisoner within a system that really does intend her harm, made all the worse by the careless errors of the carefree girl of the first picture. The first Amanda was immature the second picture is no longer a child but not yet a woman.

The picture for this article is shocking. The eyes are dead, passive all hope has been extinguished. Those are the eyes of an old woman ready to pass from this life to the hereafter they should not be the eyes of a girl the age of a college senior. Its hard to know whether there is anything left to save in that girl anymore, or just enough left to bury. 3 years of prison has destroyed her. All I can see: hopelessness, depression, fatalism.

When I started this series I just figured I'd grab a picture form 2008, 2009 and 2010 respectively. When I saw what they looked like I had trouble not bursting into tears, a maudlin emotionalism that is totally unlike me. Life should do this to people over decades, or better yet not at all. To be able to see the eyes and the face change in pictures which show no sign of aging, to see this happen to someone deliberately so quickly, is devastating. It really bring home the monstrous evil of what's going on in Italy, and since American prisons are worse here as well. Early in the life of this blog I wrote a piece (link) on the mechanism of real and false guilt and how church discipline was used to create this sort of effect, the analogy being to real imprisonment; in the case of that piece in a 1930s Soviet Prison. I think back on that piece now, in the one sense how apt the analogy is in the haunted looks I've seen in the people I've worked with tossed out of their communities for being gay or being disobedient wives or starting to question whether the leader was really right. But the real thing is so much worse than the analogy.

The justification offered for killing Amanda's soul and leaving behind a zombie is of course is the picture to the left of this text. Meredith Kerecher died slowly of exsanguination probably in pain, probably in fear. It was a brutal death of by all accounts a talented girl, delightful girl loved and cared for by many. Meredith probably fought for her life at the end that's why the blood smears are everywhere, she died in combat, she died fighting she died with a ferocious desire to live. Her 2007 picture will always be this. The horror of her death is compounded by the knowledge that she died young enough to fight like she did. She loved her life and she had so much to live for.

And in 2007 there were people looking at this Meredith picture that were probably worried about a reoccurrence. They were probably worried about public fear. When Sonia Marra was murdered in Perugia in 2006 the police hadn't charged anyone, and rumors were starting in the University for Foreigners about a serial killer targeting students. The police wanted to make damn sure this didn't happen again, they wanted to reassure the public that Italian police work would be swift. But they couldn't find a motive and Meredith on the surface wasn't doing anything that was likely to get her killed.  There were some signs pointing to this murder being domestic violence and one of her roommates acted suspicious, offended the police and told some lies. So they fixated. 

And then steps in a prosecutor who likes to play way over the line. Its important to stop here and point out that the fact this guy is a highly questionable character is not in dispute. Douglas Preston's Monster of Florence, about the Monster of Florence Murders (1968-85, well before Knox was born) talks about Mignini's villainy. His response was to engage in an illegal wiretapping operation against the police and journalists investigating for which he has been tried and convicted (link). Allegations of abuse swirl around him.

And even in the Knox case there have been substantial misconduct. For example Mignini has tried to charge Americans in Italian courts for activities performed in the United States, i.e. without any jurisdiction, and activities absolutely protected by the First Amendment:

• He filed criminal defamation charges agains a newspaper, the West Seattle Herald for reporting that Mignini is seen by many locals as inadequate and mentally unstable (link)
• He convicted (in absentia) Joe Cottonwood a California carpenter for calling Mignini a bully (link), its hard to do more then point out the irony of a DA filing criminal charges against someone for calling them a bully
• Slander charges against Amanda Knox's parents for quoting her sworn testimony (this BTW was the charge that got me off the fence regarding Amanda Knox) (link)

He also has further tried to get around the protections against perjury in Italian law protecting defendants by filing a separate slander charge against Amanda Knox for her sworn testimony in her defense.

So understanding this background, lets try and get inside Mignini's head in early Nov 2007. He's an experienced investigator, with a weak case against someone he is sure is guilty and is a serious flight risk. Her parents are on their way and while Amanda might not understand how much danger she is in, they will, and poof she will be back in Seattle. Once that happens he certainly isn't going to be able to get enough to extradite. Worse her alibi, Raffaelle, has money and might just follow Amanda back to the states for a few years, or head to Australia or even if he stays in Italy might be very hard to arrest with Amanda to tie him to the crime. So he's under immense time pressure and responds by conducting a series of illegal interrogations, the Italian equivalent of failing to Mirandize them, and then arrests them. He still doesn't have enough but he arrests them so he can hold them. Italy does not have the notion of right to a speedy trial so once arrested he can hold them for a year.

And immediately his problems worsen because the physical evidence isn't confirming his theories. Neither is the witness testimony. There is lots of blood but not much in the way of bloody footprints. The knives they find don't either have the right kinds of evidence or don't match the wounds. Psychopathic sexual killers have histories of working their way up to rape murders. We should see evidence of things like animal abuse, spousal abuse, sexual assaults on Amanda and Raffaele's criminal record, but they don't have a criminal record for anything remotely violent, or really much at all.

Since he's made an arrest he has to reassure the public that's he's done the right thing. Mignini starts planting false stories. For example he focuses the media on how Amanda's copy of Harry Potter was found at the cottage and not at Raffaele's place disconfirming her alibi, except it was found at Raffaele's place confirming her alibi. He leaks a false photo. Just to give you some idea of the effect of false evidence I played this the way he did. Notice how the "blood" on the photo on the left of the bathroom is pink, well its a chemical from the forensic team. The actual bathroom showed no signs of blood at all, except for a few drops in the sink, everything you see here would have been invisible to a human eye. Putting it next to the shot on the right which has actual blood misled you. I fell for the same trick when I first saw the photo. And he published these photos opposite stories of Amanda talking about not noticing the blood in the bathroom, when shown this picture makes her look like a total liar. Dozens of these propaganda stories were planted.

That's the sort of thing a prosecutor who is trying to inflame the public against a defendant who can't prove his case would do. Stories of non existent comics, stories of non existent bloody footprints making a path. Lying by 12 minutes about when the postal police arrived and then planting a story based on this time shift about Amanda trying to create an alibi after the police got there. Lets not brush over this because this is not a point in dispute, Mignini orchestrated a public campaign of defamation using a mixture of false and true information into an emotionally agitated Perugian population. No one denies this attack campaign of disinformation occurred, the only point in dispute is why.

What I would argue is he did so to try and create a political environment which led witnesses to make maximally incriminating statements against Amanda and Raffaele. We know that 31% of Republicans believe Obama is a Muslim. Essentially using the logic:

a) Being a Muslim is bad thing to call someone

b) Obama is bad

c) Hence Obama is a Muslim

Using a similar sort of technique many witnesses will tend to shave their answers in the direction of public opinion. In other words he needed to create incriminating evidence, so he creates an environment where it shows up.  Moreover the media starts paying for witnesses to give stories and suddenly witnesses start popping up after months who heard Amanda running down the stairs, saw her across the street at crucial times, saw her shopping for bleach (but not buying it) the day after the murder. Who can possibly survive this sort of orchestrated disinformation? This is very similar to how George W Bush organized a campaign of disinformation to intimidate America's intelligence agencies to misrepresenting the state of Iraq's nuclear weapons program (see Plame affair).  

Of course the problem has been this case generated more publicity than Mignini anticipated. The way he expected it to work was that he gets this swarm of evidence and Knox confesses. Or he gets the conviction against Knox and her version is discredited. He never expected a media counteroffensive.

One has to remember in reading this case in 2011 the question is not

• Is Amanda Knox someone who acted suspiciously and thus the police were justified in investigating?

That would have been the correct question on Nov 5, 2007, but rather the correct question today is:

• Has Amanda Knox been proven beyond a reasonable doubt to have engaged in a premeditated conspiracy to kill Meredith Kercher involving two other people with elements of the crime understood and known?

And the answer is not remotely. To demonstrate this just consider the following questions:

• What lethal acts do we know for certain that Amanda Knox performed?
• What lethal acts do we know for certain that Raffaele Sollecito performed?
• What lethal acts do we know for certain that Rudy Guede performed?

And this is why this case has so much heat. From the start the prosecution has attempted to conflate those two statements. Some people want to pretend that we are ready to answer the beyond a reasonable doubt question "yes", because it is no longer possible to just conduct an investigation. Either Amanda Knox, Raffaele Sollecito and Rudy Guede were the killers, and the only killers, without substantial mitigation, or this case just is never going to be solved. So if Meredith is going to have "justice", by which they mean throwing 3 more kids away; they have to pretend that the evidence says far more than it does.

To put this another way, as a result of prosecutorial abuse we now have a situation where:

• Amanda Knox had done some suspicious stuff before and after the murder.
• Had there been a decent investigation we might had found out why.
• But there wasn't a decent investigation.
• So we are left with the fact that based on naive speculation she most likely either had something to do with the murder or is covering for someone who did.
• Probably having something to do with a killing is a far short of being proven to have been a primary in a murder beyond a reasonable doubt.
• The person who made the wrong choice to arrest quickly and use public pressure to force a defendant into talking, was not Amanda Knox.  She should not be punished by being denied justice because Mignini picked an ineffectual strategy.  

To support the trial verdict is to end 2 kids lives on firmly believing that more likely than not they had something to do with it. We can speculate on whether Amanda and Raffaele are actually guilty, we should not speculate on whether they should have been found legally guilty, the answer is an absolute unequivocal no.  In the USA generally any evidence collected from abuses, like illegal searches are considered "fruits of the poisoned tree" and tossed out. In an American trial that would have happened to virtually all of the evidence against Amanda Knox. Essentially all the charges against her stem from early interviews of herself and Raffaele which were illegal. Their trial was an abomination and an insult to justice.

Having a prosecutor engaging in rampant prosecutorial abuse doesn't prove you are not guilty in a moral sense, the reason he engaged in these abuses was because he was positive she was guilty. So the question then becomes given a fallacious trial, and a screwed up investigation can we go on to argue that not only should Amanda Knox and Raffaele Sollecito be found legally not guilty but in fact are actually innocent? The answer is yes, those very same illegal statement from her earliest detention show convincing information about her state of mind which tend to disprove murder and that discussion of state of mind will be the topic of our next post.

I'll close by commenting, I usually just whine about various news items. I don't usually even mention causes that raise money, but if you think enough is enough in this case: Amanda's Defense Fund helps both of them.

____

• CBSnews' take on the prosecutor
• Video demonstrating what Amanda saw in the bathroom
• Filing from the Committee to Protect Journalists regarding the arrest of Spezi ordered by Mignini
• Classic article: Amanda Knox Prosecutor Giuliano Mignini: His Bridge to Hell
• The neverending nightmare of Amanda Knox

Amanda Knox as the shadow

Michael Wolff wrote a good summary of the case:
The promiscuous girl next door goes on her junior abroad to Italy, where she has lots of sex, smokes tons of weed, meets other students and rootless young people from exotic places, has the time of her life, and then one day finds her British roommate raped and with her throat cut. The hapless and desperate Italian authorities shortly implicate the American girl, her Italian boyfriend, and an African bar owner in the murder. Then, possibly because this is Italy, they convict a more or less random passerby for the murder. At the same time, the authorities continue to insist that an orgy-gone-wrong is the motive for the murder and that Amanda Knox is the mastermind.

I think that pretty accurately captures why this case has become an international case, though of course grossly oversimplifies what happened. The other aspect which is different and leads to publicity of course is that the Knox family and Amanda Knox herself have encouraged publicity. Generally suspects are reluctant to talk to the media the "anything you say can be used against you". People talk after they are exonerated, after they are pardoned, after they do their time or finally after they are on death row. They don't generally talk during the early phases. And of course given that the press generally, but not always, treats people who talk to them more favorably than people who don't Amanda is getting a more sympathetic press than most other criminal defendants. And then there is some culture clash, where actions of the Italian authorities are things that an American would object to. My post regarding the "slander" charges against Amanda Knox and her parents being typical of those cultural issues.

So of course given a sexy murder, a sexy suspect and controversy there are several movies coming out about this case. The feeling of the anti-Knox people is that the movies should be about Meredith Kercher. But any objective person knows of course the movie should be about Amanda. There will never be a movie about Max Jensen or Bennie Bushnel, rather Executioner's Song is about Gary Gilmore, his inner demons and the people who loved him. And perhaps it is precisely this that the anti-Knox people find most upsetting. Executioners song humanized Gilmore after he was shot by Utah. Throughout the movie, the audience identifies with Chrisine Lahti's Brenda Nicol trying to rescue Gilmore. They agree that prison has made him worse, they hope he can be saved they hope that the intense love he feels for Rosanna Arquette's Nicole Baker and her children. There is no article on Wikipedia for Max Jensen. He is lost like sands in a hourglass. Kercher's father rails about Amanda's celebrity, thinking this is something unusual; but honestly when you were reading this paragraph did you have to look up who Jensen was? I remember Gilmore clear as day, and had to look up the names of Jensen and Bushnel (Gilmore's two murder victims) to write this.

So once it becomes obvious that of course the movie is not going to be about Meredith Kercher the question becomes why do intelligent people think it should be? The father is obvious, but why the rest? Why would an issue like this even be raised? I can think about US trials where the verdict was genuinely in doubt and controversial I don't think anyone pretended that "the victims family" not liking the controversy was all that relevant. It's not uncommon for the victim's family and friends to fixate on a suspect, that isn't given much weight for good reason. But why of the 3 would they choose to fixate on Amanda?

At first blush one could argue the most likely cause is the prosecutor. When one reads between the lines of the prosecutor, he seems fairly sure that the other two suspects are bad people but Amanda Knox was a budding young serial killer cut off by a careless act before she had time to fully flower. That the best thing they can do for society is keep her off the streets for as long as possible, and / or once the trial is over give her some treatment for whatever her real motivations are. His focus may be experience but it is yet more piece of the puzzle. What's interesting of course is that the prosecutor with this view is considering Amanda much more special (though in a negative way) than Meredith. For example Judy Bachrach asserts, "Soon the Italian officials came up with a theory that Amanda wielded such enormous power over Rudy and Raffaele that she could order them both to violate and murder her housemate."

And when one sees the discussion online, Their focus as well is on Amanda, even while arguing the focus should be on Meredith. Sometimes the two groups even identify themselves as FOA (Friends of Amanda) vs. FOM (Friends of Meredith), since the FOA name came first I think I can freely call them the anti-Knox faction. When they say the focus should be on Meredith they mean it only in a negative sense as a contrast. a sort of ego / shadow dichotomy with Amanda vs. Meredith.

• Meredith studied hard in a respectable program while Amanda flittered just taking some classes on the side.
• Meredith had a single boyfriend and never would have cheated on him with Rudy Guede while Amanda is a sexual libertine (this one despite the evidence to the contrary).
• Meredith's family has quiet dignity while Amanda's are loud and inappropriate
• Meredith was going to work hard at the bar while Amanda flirted with customers.
• Meredith is beautiful while Amanda is only cute.
• Meredith is financially responsible while Amanda is financially reckless.
• Meredith is liked by all while Amanda is avoided.
• Meredith is British (civilized, deserving), Amanda is American (uncivilized, rude, feeling entitled while being undeserving)

etc....

And I'd like to give one more. Meredith suffering is seen as unconnected with her life. In reading the anti-camp's writings you are struck immediately by the delight in Amanda's suffering while being completely disinterested in Rudy Guede's imprisonment. Which is odd for people supposedly interested in supporting Meredith , Guede was after all the drug dealing rapist whose skin was inside her and most likely stabbed her, since he didn't object to the murder charge. He doesn't matter to them, rather they show him sympathy. And it is not a situation of hating all defendants equally, they are very concerned that Amanda might get off by blaming the crime on the actual rapist. If they were primarily concerned about the rape/murder why not want revenge on the one person who unquestionably a primary? I think it is fair to say something else is going on here then just a desire for justice. The prosecutors view that Amanda is in some sense more responsible for the deaths than the men who carried it out, is more evil than the actual rapists and murders predominates.

The theory speaks to this sort of confusion.  Rather than the humorous, playful, mischievous and overly trusting Amanda they see a stone cold psychopath who is also overcome by emotion and guilt for a murder she committed because of narcissistic jealous outburst enhanced by drugs, except on the night of the murder which she callously planned.

And I think I know why. I used the Jungian shadow term deliberately. From listening and hearing what we are dealing with is projection. Meredith and Amanda are changed from people into archtypes and symbols. The murder becomes a moment where the shadow is triumphant over the ego, which is soon replaced with the shadow being imprisoned in the unconscious mind unable to effect reality (i.e. prison) its desired state. People have been reading into Amanda their own anxieties about their own psychological struggles and reading into Meredith an ideal they strive for. I challenge you to read the anti-Knox blogsphere (see links in previous article) and not immediately notice the tremendous hatred of Amanda Knox uniquely among the defendants and how this seems out of sorts with what we are dealing with at worst. A 20 year old who got into a situation over her head and acted out under the influence of drugs and doesn't know how to dig herself out of the hole. The absolute worst case demands our sympathy. Who has not been in a similar situation, though generally one with lower stakes?

Moreover this shadow dichotomy allows for people to hold simultaneously incompatible negative opinions of Amanda. For example, frequently she is accused of being tremendously jealous of Kercher and insulted by her negative comments. That would make her catathymic killer, someone with a lifetime of pent up anger that explodes in a homicide. Catathymics rarely reoffended, the actual violent murder releases the anger, scares the perpetrator and they achieve many of the effects of therapy. For her to be a budding young serial killer she would have had to be disinterested in Meredith and looked down on her contemptuously. But jealousy is a negative emotion, and being a threat to society is negative hence both must be true. One can believe that Amanda felt like a loser intimidated and humiliated by Meredith but then her moral conflicts about the murder are real and she experiences genuine remorse. One can believe that Amanda is remorseless or even savors the memory of the killing, but then she was not jealous of Meredith. (See link for a discussion of types of killers in this case). The fact that people insist on believing both shows that Amanda and Meredith are being related to as archetypes and not people by the FOM crowd.

About 10 years ago there was an Italian, Derek Rocco Barnabei. He was alleged to have raped and killed his girlfriend . Good looking kid with a nice mother. The Italians including the Pope thought he was innocent and protested. Virginia executed him. He got a first class trial but there was some misconduct by the prosecutor as this case became an international incident. Italy flew his body back and erected a memorial (link).

If Amanda does a quarter century worth of time based on no direct evidence but rather evidence that she participated in concealing evidence she is going to remain a figure of sympathy. The anti-Knox people seem to be so blinded by their psychological angst that they are not thinking through what is becoming the likely future. Right now the person the evidence points most strongly to, and who is most the career criminal, Rudy Guede, is going to be released first two decades before Amanda Knox, with the Italians constantly trying to pile on more more minor crimes to increase her time in prison. The punishment she receives in Italy is not going to seen as a just punishment for a serious crime but rather just another example of American killed (effectively) by foreigners, little different than say Jack Hensley who was tried and convicted in a foreign court using different legal procedures resulting in a verdict which is absolutely rejected by Americans. If the goal is to hurt Amanda moral legitimacy may not be important. If the goal is to have the punishment be seen as just, for her not to be viewed as a victim then the substantial and serious questions about this trial need to be rectified. Amanda Knox's father is absolutely correct that the technique used to justify the questionable legal strategy of aiming for murder when the evidence, at best proves much less has been character assassination. Rather than try her on the evidence for the lesser charge, the Italian prosecutors has insisted on whipping up hate against her. Many people see what happened in this case, want trails to determine the truth and rightfully object to what happened.

_____

See also

• Definition of the different types of sexual murders. 

Amanda Knox

So I've been reading with some horror about the Amanda Knox case. This isn't a church discipline case, its a real court case. Up until the judges report was available in English there wasn't much that could be said. The report (link) falls far far short of establishing anything remotely like a murder conviction. It essentially provides some evidence (and IMHO not enough to convict) for either a conspiracy after the fact or obstruction of justice. In particular it never presents clear specific acts that Amanda Knox engaged in to kill Meredith Kercher. The standard of evidence seems to be whether the police can find evidence to definitely contradict their theories, rather than to find a theory which is provable beyond a reasonable doubt. The report makes detailed allegations regarding conspiracy after the fact and almost none about the murder itself. Further if you believe the prosecutions case you see people aggressively acting to clean up a murder scene but not having prepared for the murder in any way, meaning that malice aforethought seems to be missing. I have trouble seeing how you convict for murder.

The key evidence is are inconsistencies in testimony that the defendant has off and on alleged resulted from beating a suspect up. I'm from the North East, its not unknown for a cop to "tune up" a suspect, though it is rare. Its almost never used with a first time offender who is so obviously terrified, or high, she's acting erratically already. And what Knox describes, strikes to the back of the head, are very dangerous and used primarily to avoid bruising. I don't have good statistics but using these sorts of methods would seem to imply a nonchalance about whether the suspect suffers brain damage. These sorts of hits cause the brain stem to separate from the brain with the degree of force and exact type of hit determining the degree of separation. They are called "rabbit punches" because this type of blow was traditionally how hunters killed rabbits. If true, her life was quite literally in danger and confusion from head trauma isn't totally unreasonable.

In reading her statements even if we assume she was not being hit or sleep deprived, she clearly was being denied council and repeatedly expressed confusion. Drugs, which the prosecution obviously suspects could also make her unfit to give testimony. Her early testimony is worthless and should have been thrown out, and some has been. And that's not even counting the fact that she was obviously a suspect yet still being interrogated like a witness a clear violation of Italian law. And even if it weren't the lies provide more evidence for the obstruction charge they prove nothing about the murder. What we are left with after that is some circumstantial evidence that points to her probably being involved in some way, particularly after the fact. Which is far short of proving beyond a reasonable doubt that she was a primary.

What is absolutely beyond the pale though is the slander charge. Essentially the court ruled that because the police all agree they didn't hit there therefore they want her to do an extra 6 years. Italy doesn't have a notion of perjury for a defendant and this seems like an attempt to get around that. What's even worse is going after her parents with the slander charge, which is both blatant censorship and witness intimidation. This is where IMHO this case went from a young woman overcharged and over-convicted to pure injustice.

This injustice is especially bad because one of the primary points of dispute was the prosecution making up all sorts of elaborate stories and distributed these stories to the media to taint the jury with claims that it wouldn't matter in Italy. For all my complaints about the USA its nonsense like that gives me pride to be an American. This case is getting lots of attention though the Italians seem intent on stealing this woman's (and really at the time of the murder, girl's) life away from her.

I'd like to send her a message that she is not forgotten, so I gave a donation to her defense fund.

______

See also:

Pro Knox/Sollecito:

• Friends of Amanda
• Perugia Shock, this blog has been active for 3 years you can see the author go from being convinced Knox and Sollecito are guilty to innocent piece of evidence by piece.
• Candice Dempsey, author of the best book on the topic.
• Injustice in Perugia, Bruce Fisher's site, good quality information and analysis.  Has a forum with good discussion only open to innocentisti, and a blog open to all.  
• Science Spheres, a critical look at the evidence, Author of The Framing of Amanda Knox,
• The Ridiculous Case Against Amanda Knox and Raffaele Sollecito
• View from Wilmington
• Graham Lawyer Blog, Steve Graham
• Amanda Knox & Raffaele Sollecito are innocent
• Alternate theories, explores the single sex offended theory in depth
• Amanda Knox Appeal form

Anti Knox/Sollecito

• True Justice for Meredith Kercher, good quality legal analysis; however openly biased and very mean spirited.
• Perugia Murder File, excellent source of raw information, practices active censorship of pro-Amanda information, mean spirited
• Miss Represented, psychological speculation done at the time of the trial
• Statement analysis, analysis of Amanda Knox's statements for deception.

Neutral:

• James Randi Forum
• In Session Trials

Related

• Imam rapito affair, a case of 22 Americans being tried and convicted in absentia at the same time. It provides a political context for those alleging anti-Americanism in the judiciary. There are no allegations by either side that Knox had any involvement with Abu Omar.
• Statement by Senator Cantwell on the verdict. This is extraordinarily rare and serious. The Italians and Kercher supporters are blowing this off as irrelevant, but an attack on the verdict in a purely criminal case by a sitting US Senator is almost unheard of and implies very series misgivings in Cantwell's mind.
• Blog wars article about the domestic factions pro and con.http://amandaknoxappealforum.blogspot.com/

Conner v. Archdiocesse of Philadelphia

Discipline is non reviewable by courts. I've been looking for a good example of a case which shows this. This Spring in Pennsylvania there was a legal case involving a person punished and then defamed by the church. And the courts determined they can't determine the accuracy of the claim made by the church court. So readers should understand, if you are a member of a church you have zero protection against false allegations which the church upholds. As an added bonus this shows that courts can't intervene based on lack of due process.

The brief facts are a 12 year old, Eric Conner, has either a nail file or a knife in his possession when teachers are concerned there is going to be a violent incident. He is expelled and others in the community are informed he was carrying a knife freely. As a result shunning occurs and the boy is expelled from other activities in addition to school cutting him off from essentially the entire social life of his community. So the question before the court was:

1. Can the boy sue for defamation (mis-identifying the item in question)
   
2. Can the boy sue for negligence (lack of due process)
   
3. Can the church be held liable for the results of making false statements and disseminating them freely.

The answers to all 3 questions were absolutely not. Church discipline is not reviewable, the courts could not have been more clear:

All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit to it. But it would be a vain consent and would lead to the total subversion of such religious bodies, if anyone aggrieved by one of their decisions could appeal to the secular courts and have them reversed.

Note here, the issue was nothing of a doctrinal or even religious nature, the question was whether he was carrying a nail file or a small knife. As long as the boy remains a member of the church, the courts cannot review the accuracy of their claims, the process for those claims nor the conduct.

Also of question was the issue of dissemination. Again since Conner was a member he has no protection at all from dissemination within the community:

However, a decision by a religious organization to discuss the fact and import of an ecclesiastical disciplinary decision is, for purposes of the deference rule, no different than the imposition of the discipline itself. This Court would indeed be straying into “the sacred precincts” (Presbytery of Beaver-Butler, supra at 262, 489 A.2d at 1321) if it determined that a religious organization would be subject to civil liability for communicating to its community the existence of a disciplinary decision made and imposed by the organization. If our civil courts may not review an action that challenges the legitimacy of a disciplinary decision of a parochial school, then, in like fashion, they may not review an action that challenges the dissemination of information regarding that decision, at the very least within the narrowly circumscribed limits of the parish community.

In keeping with the recent discussion note the court specifically upheld the Guinn, that termination of membership terminates the protections of the religious institution regarding harassment. Once someone quits the 1st amendment protection of the church court is broken and the secular courts can step in for later actions, but not until they quit. Eric throughout remained a member of his parish.

In Guinn v. Church of Christ of Collinsville, 775 P.2d 766 (Okla. 1989), the Supreme Court of Oklahoma determined that invasion of privacy and intentional infliction of emotional distress claims against church elders were not barred by the Free Exercise Clause of the First Amendment of the United States Constitution when those defendants continued to publicly denounce the plaintiff as a “fornicator” after the plaintiff had terminated her membership in the church. However, the Court also held that the actions taken by the church elders to discipline the plaintiff prior to her withdrawal of membership in the church were shielded from judicial scrutiny.

In the case sub judice, Appellants have not alleged that they were denounced by Appellees after terminating their membership within the Catholic Church; rather, Appellants alleged only that Appellees had disseminated in the parish school community, during a limited period of time immediately following the incident, information regarding a disciplinary decision that involved Eric.

I can't think of a better case that explains why this blog exists than Conner. Obviously a 12 year old doesn't know about ecclesiastical courts and assumes his teachers aren't going to freely spread lies about him. But if he known how to protect himself, he could have filed an appeal in church court against the nun, called witnesses, and if he what he claims is true been vindicated so that his teenage years wouldn't have been destroyed. It also I think demonstrates clearly why I think it is a terrible idea to just blindly submit to discipline and "trust God".

The full decision is available online.

Wollersheim v. Church of Scientology

Wollersheim v. Church of Scientology is a case that explores the outer limits of discipline. The church of Scientology did several things that are outside the norm for a "church discipline" case in terms of degree, but not kind. While a member of the church, the church failed to provide him with adequate psychological care for a manic depressive illness. To prevent a member from leaving they engaged in unlawful imprisonment and kidnapping. But they did this essentially the same reason many other churches try and prevent members from leaving. Finally, once the member had successfully left they engaged in a campaign to get him to join the church again, by applying pressure, in this case they used fraud to destroy his business

Essentially this is a very extreme version of: nouthetic counseling, not recognizing the right of members to quit, shunning or other practices to try and bring someone to "repentance". Again as far as I know no Christian church of substantial size in modern centuries within the USA has gone this far, or close to this far, in terms of degree but they do agree with the basic principles.

The fraud, which consisted of having Scientology members not pay bills owed Wollersheim had been centrally organized as part of a policy to attack "enemies of the church" in an organized fashion, a policy the church called "fair game". That is, in the case of Wollersheim the church of Scientology engaged in an organized conspiracy to commit felonies, which is yet another felony called racketeering. However, the Church of Scientology argued their policy of fair game, was a religious protected procedure and they were entitled to full first amendment protections. The state of California and the US Supreme court disagreed. The court agreed that the states cannot in any way burden belief itself in any way. However they held that expressions, that is acts, are subject to regulation. They outlined the "4 part test" for regulating expression of belief, using Cantwell v. Connecticut (1940) as a precedent:

1. Important or compelling state interest
2. Burden must be essential to advance that interest
3. Minimum burden to advance that interest
4. Must apply equally, i.e. non discrimination
   

The subsequent cases interpreting these four words make it clear that while the free exercise clause provides absolute protection for a person's religious beliefs, it provides only limited protection for the expression of those beliefs and especially actions based on those beliefs. ( Cantwell v. Connecticut (1940) 310 U.S. 296, 303-304 [84 L.Ed. 1213, 1217-1218, 60 S.Ct. 900, 128 A.L.R. 1352].) Freedom of belief is absolutely guaranteed; freedom of action is not. Thus government cannot constitutionally burden any belief no matter how outlandish or dangerous. But in certain circumstances it can burden an expression of belief which adversely affects significant societal interests. To do so, the burden on belief must satisfy a four-part test. First, the government must be seeking to further an important - and some opinions suggest a compelling - state interest. Second, the burden on expression must be essential to further this state interest. Third, the type and level of burden imposed must be the minimum required to achieve the state interest. Finally, the measure imposing the burden must apply to everyone, not merely to those who have a religious belief; that is, it may not discriminate against religion. (From II.A of Wollersheim v. Church of Scientology) .

In particular criminal acts or acts that violate civil laws are not protected:

If the Biblical commandment to render unto Caesar what is Caesar's and to render unto God what is God's has any meaning in the modern day it is here. Nothing in Paul v. Watchtower Bible & Tract Soc. of New York or any other case we have been able to locate even implies a religion is entitled to constitutional protection for a campaign deliberately designed to financially ruin anyone - whether a member or nonmember of that religion. Nor have we found any cases suggesting the free exercise clause can justify a refusal to honor financial obligations the state considers binding and legally enforceable. One can only imagine the utter chaos that could overtake our economy if people who owed money to others were entitled to assert a freedom of religion defense to repayment of those debts. It is not unlikely the courts would soon be flooded with debtors who claimed their religion prohibited them from paying money they owed to others.
We are not certain a deliberate campaign to financially ruin a former member or the dishonoring of debts owed that member qualify as “religious *891 practices” of Scientology. But if they do, we have no problem concluding the state has a compelling secular interest in discouraging these practices. (See pp. 884-886, supra.) Accordingly, we hold the freedom of religion guaranties of the United States and California Constitutions do not immunize these practices from civil liability for any injuries they cause to “targets” such as Wollersheim.
(II.B)

Of interest to the general readership the courts determined the level of emotional harm required for church discipline to become a tort:

For reasons set forth in section II, we have concluded Scientology is not constitutionally immunized from civil liability for its cumulative course of conduct to intentionally inflict emotional injury on Wollersheim. However, this course of conduct does not supply a suitable predicate for a cause of action based on negligent infliction of emotional injury. These actions are potentially actionable only when they are driven by an animus which can properly qualify them as “outrageous conduct.” That is, they must be done for the purpose of emotionally injuring the plaintiff, or at the least with reckless disregard about their adverse impact on plaintiff's mental health. (III)

The Church of Scientology appealed this decision twice to the United State Supreme Court, and twice to the California Supreme Court. The Church of Scientology lost all of these appeals. The original damages were $30m, these were reduced to $5m and then with interest and legal the final payment was $8.6m. The decision is now final. The full citation and subsequent history of the case is enormous due to the extensive appeals:
Wollersheim v. Church of Scientology, 212 Cal.App.3d 872, 260 Cal.Rptr. 331 (2d Dist. 1989), review denied, (Cal. Oct. 26, 1989), review denied, mot. granted, 495 U.S. 902, 110 S.Ct. 1920, 109 L.Ed.2d 284 (1990), cert. denied, 495 U.S. 910, 110 S.Ct. 1937, 109 L.Ed.2d 300 (1990), vacated, remanded, 499 U.S. 914, 111 S.Ct. 1298, 113 L.Ed.2d 234 (1991), on remand, 4 Cal.App.4th 1074, 6 Cal.Rptr.2d 532 (2d Dist. 1992), reh'g denied, 6 Cal.Rptr.2d 532 (Cal.App. 2d Dist. 1992), review granted, 10 Cal.Rptr.2d 182 (Cal. 1992), review dismissed, cause remanded, (Cal. July 15, 1993), cert. denied, 114 S.Ct. 1216, 127 L.Ed.2d 562 (1994).

For more information:

• Wikisource article on the case, and on Scientology
  
• Skeptic tank article on the case (very anti-Scientology so be aware of bias)
  
• Wikipedia and Xenu on fair game
• Analysis of Scientology anti-SLAPP (California law) violation regarding the appeals part1, part2 and part3
  
• Church of Scientology v. Gerald Armstrong an earlier case where California courts held that "fair game" constituted a threat to members and thus they had rights to defend themselves.
  
  

Marian Guinn vs Church of Christ Collinsville

The Marian Guinn case in 1984 was a key precedent for the Hancock case. The case involved a nurse who started dating Pat Sharp, the Mayor of Collinsville. Because he was divorced on unbiblical grounds the Church of Christ forbid Marian from seeing him. She continued to see him and more confrontations insured. She in confidence admitted to having a sexual relations. A church discipline case was started, Marian quit the church. The church rejected the withdrawal, excommunicated her and then advised all the churches in the neighborhood of her actions. Marion sued and the case became a major precedent.

This case presents a wealth of topics. First off, the Oklahoma court found against Marian regarding the issue of internal confidentiality. Again churches are not required to maintain confidences there is no expectation of privacy (see Penley v. Westbrook for a modern example). This is something that comes up again and again in discussions regarding church discipline so its worth commenting here, that a member that talks within a church to another member has no legal rights of confidentiality. Readers here should note that if they want to maintain their legal rights, they should not discuss things in church or in a church capacity!

Second, the court again affirmed a high bar for oversight of those actions that occurred while she was a member of the church. A church can do whatever it wants without any legal oversight unless such actions endanger peace, safety or public order.

The third point though is one many conservative churches most certainly went against the notion of church covenant. The court held that binding commitments to a church had no effect in law. Quite simply after withdrawing a church court was just another entity:

Engel [ed: school led prayer is illegal] is supported by historical fact; many who left England and its governmentally established church for America did so in pursuit of religious freedom. The First Amendment of the United States [775 P.2d 777] Constitution was designed to preserve freedom of worship by prohibiting the establishment or endorsement of any official religion. One of the fundamental purposes of the First Amendment is to protect the people's right to worship as they choose. Implicit in the right to choose freely one's own form of worship is the right of unhindered and unimpeded withdrawal from the chosen form of worship. In Engel it was the government that, by advocating one particular form of religious worship, threatened to limit freedom of choice; here, it is the Collinsville Church of Christ that, by denying Parishioner's right to disassociate herself from a particular form of religious belief, is threatening to curtail her freedom of worship according to her choice. Unless Parishioner waived the constitutional right to withdraw her initial consent to be bound by the Church of Christ discipline and its governing Elders, her resignation was a constitutionally protected right....

By voluntarily uniting with the church, she impliedly consented to submitting to its form of religious government, but did not thereby consent to relinquishing a right which the civil law guarantees her as its constitutionally protected value. The intentional and voluntary relinquishment of a known right required for a finding of an effective waiver was never established. On the record before us Parishioner - a sui juris person - removed herself from the Church of Christ congregation rolls the moment she communicated to the Elders that she was withdrawing from membership.

WHEN PARISHIONER WITHDREW HER MEMBERSHIP FROM THE CHURCH OF CHRIST AND THEREBY WITHDREW HER CONSENT TO PARTICIPATE IN A SPIRITUAL RELATIONSHIP IN WHICH SHE HAD IMPLICITLY AGREED TO SUBMIT TO ECCLESIASTICAL SUPERVISION, THOSE DISCIPLINARY ACTIONS THEREAFTER TAKEN BY THE ELDERS AGAINST PARISHIONER, WHICH ACTIVELY INVOLVED HER IN THE CHURCH'S WILL AND COMMAND, WERE OUTSIDE THE PURVIEW OF THE FIRST AMENDMENT [775 P.2d 778] PROTECTION AND WERE THE PROPER SUBJECT OF STATE REGULATION.

While the First Amendment requires that citizens be tolerant of religious views different from and offensive to their own, it surely does not require that those like Parishioner, who choose not to submit to the authority of any religious association, be tolerant of that group's attempts to govern them. Only those "who unite themselves" in a religious association impliedly consent to its authority over them and are "bound to submit to it." Parishioner voluntarily joined the Church of Christ and by so doing consented to submit to its tenets. When she later removed herself from membership, Parishioner withdrew her consent, depriving the Church of the power actively to monitor her spiritual life through overt disciplinary acts. No real freedom to choose religion would exist in this land if under the shield of the First Amendment religious institutions could impose their will on the unwilling and claim immunity from secular judicature for their tortious acts.

This bears repeating. Once a withdraw has occurred the first amendment protections don't belong to the church, rather they belong to the individual. All religious activity in the United States is consensual, a person who publically claims not to be a member of a church is legally not a member of that church and church discipline cannot continue without consent. A church attempting to discipline a person that has withdrawn can be found to be engaging in a form of harassment.

The original judgment against Church of Christ was for $390,000 which was six times the annual budget of the church. The court did reverse the damages since the original court had failed to separate which tortuous acts had before and after her withdraw.

See Also

• This blog maintains a list of legal cases which influence church discipline
• The full ruling from the Supreme Court of Oklahoma
• Time Magazine article on the case

Karolyn Caskey vs. Jason Burrick, excommunicate everyone and start over

Karolyn Caskey was a long time member of Allen Baptist Church in Hillsdale Michigan She and many other members of the church were kicked out by a new paster, Jason Burrick. He excommunicated many of the long term members in February but these long term members refused to stop attending and early on their were arrests (see story).
The pastor graduate of Hyles Anderson College, which is a fundamentalists independent baptist college. The college has a long history of controversy (ex1, ex2) additionally is unaccredited. Jeri Bassenco of Blog on the Lillypad is covering this whole case extensively.

The core debate is whether Hyles Anderson is training its pastors to "steal" congregations. That is get a pastoral appointment to a church with weak or no outside leadership, kick out the old members and rebuild the church in a new way. This technique is what is controversial. Its often advocated under terms like "congregational renewal". More importantly it gets to the heart of the great debates that appear to be splitting the evangelical and fundamentalist community renewing the classic debate as to whether the church is broad or narrow, that is the issue of regenerate membership.

From organizational standpoint this case provides yet another of the countless examples of why church government should be a plurality of elders with the minister as an employee.

Other discussion pages related to Caskey:

• haloscan
• freerepublic
• rabble.ca discussion forum

Peggy Penley and Buddy Westbrook (followup)

This article is a follow up to the article 6 weeks ago about the Peggy Penley and Buddy Westbrook case. The Supreme court of Texas has rendered its decision in this case. All filing can be found at their website.

The court in my opinion accurately captured the key point of dispute:

Westbrook contends Penley’s suit encroaches upon the autonomy of churches to decide matters of internal church discipline and governance. He acknowledges that there are exceptions to the concept of church autonomy, but claims they should be narrowly drawn by allowing judicial interference in church disciplinary matters only when a claim arises from a purely secular act. Westbrook describes actions that are purely secular in nature as those that are clearly nonreligious in motivation, like intentional torts or sexual misconduct. According to Westbrook, if there is any doubt as to the secular or religious nature of a particular action, courts should proceed no further. Any less deferential standard, Westbrook claims, would require a case-by-case analysis that would in itself excessively entangle the courts with religion and infringe upon the church’s authority. In this case, Westbrook asserts, once Penley admitted that she looked to him as both a counselor and a pastor, the trial court was precluded from adjudicating her claim. The rationale, Westbrook explains, is to avoid courts having to determine which acts are done in a secular role and which are done in an ecclesiastical capacity, particularly when there is such a blend of roles, as here, that makes it impossible to perceive where one ends and the other begins.

The court first noted that Westbrook was a licensed counselor. They did hold that Westbrook did violate ethical standards of conduct but that the courts should impose no liability. In their explanation latter in the case, they argued that the state does have a compelling interest in preserving counselor patient confidentiality but that those interest do not trump the interest in protecting the first amendment. They explicitly drew the analogy to employment discrimination cases. The court felt that deciding this the other way would have in essence been back door judicial oversight of church discipline,

"In sum, while the elements of Penley’s professional-negligence claim can be defined by neutral principles without regard to religion, the application of those principles to impose civil tort liability on Westbrook would impinge upon CrossLand’s ability to manage its internal affairs and hinder adherence to the church disciplinary process that its constitution requires. See Idleman, 75 Ind. L.J. at 254 n.96."

Or from earlier in the document

For purposes of our review, we presume the counseling at issue was purely secular in nature as Penley claims. Even so, we cannot ignore Westbrook’s role as Penley’s pastor. In his dual capacity, Westbrook owed Penley conflicting duties; as Penley’s counselor he owed her a duty of confidentiality, and as her pastor he owed Penley and the church an obligation to disclose her conduct. We conclude that parsing those roles for purposes of determining civil liability in this case, where health or safety are not at issue, would unconstitutionally entangle the court in matters of church governance and impinge on the core religious function of church discipline. Accordingly, we reverse the court of appeals’ judgment and dismiss the case for want of jurisdiction.

The biggest weakness however in the Penley case was an inconsistency. All claims but the professional misconduct ones had been dismissed by the first court. That is the court explicitly held ecclesiastical functions were not subject to judicial review. Penley had argued that her suit was regarding Westbrook's disclosure to the elders and not the elders disclosure to the church; because the later had first amendment issues. The court essentially dismissed this since the damages were as a result of the second not the first disclosure; that is the defamation came from the church hearing about her "inappropriate relationship".

The court made a few interesting observation. Penley had paid for counseling in 1998 but for the group sessions she did not pay, further evidence that strengthens Westbrook's claim that she wasn't engaged in secular counseling.

The court also noted that the church constitution regarding discipline was very explicit and Penley agreed to the constitution. Further the letter sent to the was not explicit and contained minimal information. Further it explained this was a member's only issue. While not stated explicitly the point of these statement was to establish that the church had met the informed consent burden.

As an editorial aside I think the Texas court decided wisely. I also believe the court may have wanted to have been a bit more specific. Clearly the first amendment issues are real had the Penley case been decided the other way. Moreover in the court did establish a fairly high burdon in that they noted:

1. non payment for the sessions in which the adultery was revealed.
   
2. that Westbrook was her pastor and not just another church member
3. That Westbrook took minimal action

However the court failed to address what would have been their ruling if any of the above had not been true. The initial and final statements are much stronger than the body of the decision and I believe that the possibilities for extension left open are quite large. For example what about disclosure between a catholic and his catholic criminal lawyer?



This case is likely to be big news so we will add other interesting commentary as we find them.

• Vision forum (reformed fundamentalist baptist, with a record of controversial discipline) wrote a commentary expounding on the two spheres position.