DuPage County Board wants judge to tell them what to do about proposed mosque

The DuPage County Board was due to vote on a proposed mosque yesterday but put off the vote to hear more from a federal judge:

But first they want a clarification about exactly what the judge wants them to do…The delay came after a closed-door session, where some county board members raised questions about U.S. District Judge Rebecca R. Pallmeyer’s decision to overturn a January 2010 vote by the board that denied the permit…

“Either you tell us we violated the rules and what we’re going to do, or you let us make the decision,” Larsen said. “You can’t tell us to take another look at it and then tell us what decision to reach. That violates separation of powers.”

I must be missing something here. Is there a chance the Board doesn’t want to do what the judge suggested? The article says several times that this is not the case. Here is one example:

None of the issues raised by board members are “deal-breaker concerns,” Cronin said. He said board members just want to have a discussion about how to achieve the desired outcome.

“We just want to talk a little bit about how we get there,” said Cronin, adding that county officials “would like to put the matter behind us sooner rather than later.”

Do they want the judge to be more explicit so that she provides political cover for the decision? We’ll have to wait and see what happens…

Judging the validity of academic expertise in court

It is common in the world of academia for academics to judge the credibility of other scholars. But what happens when academics step into the courtroom and a judge assesses whether they are experts or not? Consider the case of a Canadian sociologist who was going to testify as a gangs expert:

Mark Totten, an Ottawa sociologist, has “virtually no expertise with gangs in the Greater Toronto Area,” Ontario Superior Court Justice Robert Clark said in a 27-page ruling which had been under a publication ban until the jury in a gang-related case began deliberations Wednesday.

Yet, this is the same sociologist who, in 2009, was praised by the Ontario Court of Appeal for having “extensive and impressive credentials” in the field of street gang culture…

Totten himself admitted in an interview that he “didn’t handle it very well” after wilting under cross-examination in the voir dire, a preliminary examination to determine the competency of a witness…

The last time Totten’s expertise was questioned was in 2007, when Justice Todd Archibald disallowed his “expert” witness testimony on the meaning of a teardrop tattoo on the cheek of an accused killer, Warren Abbey…

On his website, Totten’s list of degrees includes a PhD in sociology (1996) from Carleton University. He is also the author of a book about to be released, Nasty, Brutish and Short: The Lives of Gang Members in Canada.

According to his 31-page resumé, most of Totten’s work with gangs has been in the Ottawa area and western Canada, and he says he has counselled hundreds of gang members.

Several things seem to be happening here:

1. In the most recent incident, Totten admitted he didn’t do a good job testifying. So perhaps he isn’t convincing and/or gets flustered.

2. Perhaps Totten’s knowledge is not specific enough for particular cases. While he has researched gangs, he may not know the particulars of gang activity in Toronto (or some other locations).

3. With the possibility of #1 and #2, why would either the prosecution or defense call on Totten for his expert testimony?

4. How does a judge decide whether a testifying expert has enough expertise. I’m sure there are guidelines to this but doesn’t this require the judge to assess the research ability of the expert? For example, the recent case involved questions about the methodology Totten used:

In a ruling released March 5, Clark flagged as a “problem” Totten’s data relating to the sample size of gang members he purportedly interviewed, calling it “inaccurate and misleading in several ways.”

Clark had listened for a day and a half as Misener challenged Totten about his research and methodology, including that used in the Abbey trial, and about his lack of knowledge about Toronto street gangs.

This is a very common academic argument: attack the methodology of another researcher and suggest they can’t reach the conclusions they do because the data is bad. Knowing this, many academics know they have to be able to respond to this which is why articles and books typically contain a defense of the methodology used for the study. In this case, the argument seems to be that Totten can’t really speak about Toronto gangs because there are important differences between these gangs and the ones Totten has studied. At what point is the judge convinced that Totten is not an expert for this case?

Even if the methodology is good, perhaps #1 and #2 are most important here – if the expert can’t speak well to the specific case and defend their methodology, it doesn’t matter if the expert really is an expert. Part of being an expert requires that the expert can effectively communicate their argument and the methodology behind it.

(My goal in this post is not to defend Totten or suggest his testimony should not be allowed. Rather, I was intrigued by the fact that these arguments about methodology and validity took place in court. While sociologists and researchers in other disciplines might know how the publishing system works for their own field, I assume the rules and standards in court differ even as there are some similarities between the two realms.)

Judges: a dying breed?

According to the reporters over at CNBC, judges are “disappearing” from the workforce:

It seems counterintuitive that we’re increasingly becoming a lawsuit-happy nation and yet, the need for judges is shrinking. The reason is simple: Budget. From the federal government on down to states, cities and towns, cash-strapped governments are slashing their budgets.

This trend is having and will have profound effects on the U.S. legal environmental.  It is true that today most cases settle (civil) or plea bargain (criminal) long before they reach trial, but they do so under the so-called “shadow of the law.”  In other words, litigants choose not to waste time and money fully arguing their cases when the payoff (winning or losing) is not worth the transaction costs of trial (years of litigation, lawyer fees, etc.).

These settlements and plea bargainings are attractive alternatives to full trials, however, only if trials (1) are an actual possibility and (2) it is reasonably certain who will win.  If there are fewer judges, (1) is undermined.  Moreover, if there are fewer trials–resulting in fewer judicial opinions–(2) is undermined insofar as there are precedents to indicate how current controversies will resolve.  In a world with few judges, potential litigants are thus left with a less-attractive reason to settle/bargain:  uncertainty.

A potentially huge penalty for losing, combined with the cost of not knowing, results in a rational decision to resolve the problem quickly.  This is fine to the extent that it lessens legal combativeness.  It is problematic to the degree that it encourages wasteful payments of “go away money” (civil) or guilty pleas to lesser crimes by the innocent (criminal).