Category Archives: The Contributors

Eyewitness Misidentification: Revisiting a Previous Discussion

Disclaimer: The views expressed here at The Liberty Papers either by the post authors or views found in the comments section do not necessarily reflect the views of The Innocence Project nor its affiliates.

In support of our fundraising efforts for The Innocence Project, I have decided to dedicate at least one post per week over the next four weeks to the cause of criminal justice reform – many of which are the very reforms The Innocence Project are working to bring about. As of this writing, you readers have already donated $310 – 62% of our $500 goal! Thanks to everyone who has donated so far or plans to donate. Remember: your donations are 100% tax deductible.

With that out of the way, now I will turn your attention to the topic at hand: Eyewitness Misidentification.

Back almost three years ago to the day, I wrote a post about Troy Davis who had his death row appeal denied despite seven eyewitnesses recanting their testimonies (this case is still winding its way through the courts; here is an update on where the case stands today). As is often the case whether here at The Liberty Papers or at other blogs, the discussion that followed my post was actually a great deal more interesting than the post itself IMHO. Jeff Molby, a person who comments on a somewhat regular basis, really got the discussion going with several Liberty Papers contributors and readers.

The part of the post that Jeff believed to be “misleading” was the following statement I took from The Innocence Project webpage that dealt with the role eyewitness misidentification plays in wrongful convictions:

Eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in more than 75% of convictions overturned through DNA testing.

While eyewitness testimony can be persuasive evidence before a judge or jury, 30 years of strong social science research has proven that eyewitness identification is often unreliable. Research shows that the human mind is not like a tape recorder; we neither record events exactly as we see them, nor recall them like a tape that has been rewound. Instead, witness memory is like any other evidence at a crime scene; it must be preserved carefully and retrieved methodically, or it can be contaminated.

This was Jeff’s response:

Eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in more than 75% of convictions overturned through DNA testing.

That’s a misleading stat. The relevant stat would be the percentage of convictions based on eyewitness identification that were later overturned due to DNA testing.

Comment by Jeff Molby — March 17, 2008 @ 12:51 pm

Perhaps the reason Jeff found the quote was misleading was my fault rather than The Innocence Project’s. The page that I took the quote from goes into greater detail complete with links for further reading. From my reading of their material, it seems to me that the statistics they are dealing with are from their now 266 exonerations. As the discussion unfolded, this forced me to do some additional research outside of The Innocence Project [Thanks a lot Jeff : ) ] to see if I could find more data to support –or refute The Innocence Project’s claim. Fellow contributor and lawyer by trade, Doug Mataconis also weighed in with his thought about the reliability of eyewitness testimony.

The highlights from this discussion are below the fold.
» Read more

5 Years Of The Liberty Papers

5 years ago today, Eric introduced The Liberty Papers to the world. A blog that was once a general “classical liberal” home has significantly expanded, as those of us writing here have grown and changed. When the doors first opened, we generally followed a Constitutionalist small-l libertarian mindset in general, and as Eric pointed out, were not anarcho-capitalists or neolibertarians. Since, I think we’ve grown to span the range from anarchist to RLC-style Republican writing. Some contributors, for various reasons, have moved on. Some new folks have joined us in those 5 years. Through it all, though, we’ve worked hard to be a consistent voice in favor of liberty in all its forms.

In 5 years, we’ve written nearly 4,000 posts, had almost 33,000 comments, and have crossed the traffic thresholds of 1.5M unique visits and 2M page views. If you had told me personally back in 2005 that some of the posts I’d written would have reached as many people as they have, I’m not sure I’d have believed it. We’ve had contributors interviewed on cable news networks, had traffic spikes (described below) as we broke a major story picked up by both Fox News and Rush Limbaugh, and in general have either elated or enraged people on all sides of the aisle. Even more importantly, though, from meeting many of our contributors and from interacting with them over 5 years, I believe that everything that we’ve done at this site has been from the heart. We’re not about deference to conventional wisdom or spewing the party line — at various points I’ve seen almost every contributor to this site willing to slaughter the sacred cow if he thought it had to be done. Our readers won’t always agree with us — hell, we contributors don’t always agree with each other — but I know that intellectual honesty is never sacrificed. That fact itself has generated a great deal of respect from me for everyone who writes here, and I hope it has done so for those of you who visit as well.

Eric, the founder of The Liberty Papers, was able to get an exception to his no-blogging policy and sent along this message:

5 years, what a cool thing that is! I remember how upset I was by Kelo and how I felt the need to respond. I started the Life, Liberty and Property group (does it still exist?), I encouraged all of my friends online to have a new Tea Party (I’m pretty sure I was the original Tea Partier) and I started The Liberty Papers. Boy, this has gone way beyond what I thought it would do. This group has broken news stories, helped influence politics, been the lead item on Google News lord knows how many times and some how managed to keep going in the face of blog fatigue.

I am very pleased that they put my post in their top posts of all time, but when I compare to some of the other folks that write here, I feel fairly lucky and rather humbled. I regret not being able to participate in this effort and all the other online efforts around liberty, smaller government and more individualism. But I made some choices about my career that ended up with employer desired limits on what I can say and write publicly.

I’m looking foward to 5 more years ……. and perhaps one or two anonymous comments when the urge strikes!

So how does a blog such as this celebrate a milestone like this? We thought the way to remember 5 years is to highlight the best of those 5 years. Over the past few weeks, we’ve worked as a group to catalog some of the top posts we’ve written, and then balloted them off to build up a top-10 list. I’ve presented that below, and suggest you take a look there and through the archives. I’d also like to open the comments to contributors and commenters alike. Do you have a specific memory of something that’s occurred here, or a post you really enjoyed? Feel free to offer your thoughts.

It’s been a good five years. Many times through the past five years, we’ve talked about fulfilling one of Eric’s promises in this opening post — to take longer-form writing and expand it into more permanent articles called “Liberty Papers”. In generating the posts making up our internal ballot, we’ve done the hard work and identified most of the posts which fit that criteria. While I can’t say that I was able to devote the necessary time to actually have that ready by this anniversary, it’s on the way.

Top 10 Liberty Papers posts of the last 5 years:

#1. The Sovereign Individual – Eric: When Eric first developed the idea of this site and offered contributor spots to those of us in the wake of the Kelo ruling, one may ask why we’d have joined the site. This essay is an example of the writing and the depth of thought that convinced us all to follow behind Eric. Due to his own career aspirations (holding a job with too much public visibility to present controversial opinion) he had to cease blogging, and I hope you read this essay and realize that the general fight for liberty is worse off for his absence. Of all the posts in our balloting, this one is the only to achieve unanimous votes for inclusion.

#2. The Case Against an Article V Constitutional Convention – Doug Mataconis: Those of us in favor of liberty often look at our Constitution, see the way that it has slowly been eviscerated by the ever-wider interpretation of its clauses, and wonder whether we might be able to “plug the holes” in the document. Doug points out, powerfully yet pragmatically, why the conditions that led to even the imperfect document we have no longer exist. He points out all the reasons that simply demanding change is likely to result in something worse than we have today, and nothing like libertarians might expect.

#3. The Politics of Liberty – Chris: If you’re looking for a logical foundation for basically 90% of libertarian or classical liberal thought, you’re not going to do much better than this piece. One of the things that has always impressed me about Chris’ writing and thinking is his ability to boil complex issues down to their roots, and explain them from those roots up. His posts can sometimes be very long, but that is due to necessity — you can’t write a foundation for all libertarian thought in 800 words. Unlike me, though, he wastes very little space.

#4. Liberty and Racial Discrimination: Responding to David Duke – tarran: Running up to the 2008 election, Ron Paul was a lightning rod for racial tension. Much was due to his own tone-deafness on the subject, and much was due to many unsavory elements of society finding his room within his stances for economic liberty to fit their own discrimination. Because of this, many people associate Ron Paul’s libertarian leanings (and libertarianism in general) with being an apologist for racism and discrimination. tarran wades into the depths of controversy to defend libertarianism and destroy some arguments of David Duke.

#5. The Scales of Justice Need Rebalancing – Stephen Littau: The statue of the goddess of justice is often depicted blindfolded, with scales and a sword. The scales denote impartiality, the sword signifies the punishment, and the blindfold suggests that the facts shall be weighed without consideration to he who presents them. As we all, know, the practice does not live up to the ideal. Juries are swayed by appeal to authority, by character rather than evidentiary consideration, and by the fact that often the state can easily out-spend and out-defend their argument. Cases that should be tried in a court of law are tried in the court of public opinion, and the question of a “fair trial” stretches the limit of fair. Stephen blows the doors off the prosecution-friendly system we have, and even — note my previous statements about sacred cows — suggests that our civil liberties are better served by furnishing through public funds access to the same level of experts & attorneys for the defense as for the state. When the cost of error is stealing years of a man’s life, I find it hard to disagree.

#6. You Should Want What I Want – Quincy: Much of politics is simply human biology and social evolution run on a massive scale. We’re simple tribal creatures, trapped in our own minds and our own biases. Some people think that those who don’t share those biases are depraved and immoral. We call those people conservatives. Some people want to enshrine those biases into law. We call those people leftists [okay, and some conservatives]. Quincy lays out the basis for these people, while arguing why their impulses to ban everything in sight are completely incorrect, immoral, and incompatible with human individualism.

#7. Homeland Security document targets most conservatives and libertarians in the country – Stephen Gordon: I mentioned above the point at which we broke news catching the notice of both Fox News and Rush Limbaugh, and this is the post in question. DHS released a report basically claiming that everyone with a distrust of federal power, believing in limited government or states rights, and/or a fan of Ron Paul, might just be a domestic terrorist. No, I’m not exaggerating. Read it, and you’ll see why it was probably the highest traffic day we’ve ever had.

#8. On Tea Parties and Republican hypocrisy – Jason Pye: The Tea Party movement exploded on the scene in early 2009, and drew a lot of compliment and a lot of criticism across the ‘sphere — we offered both here. Both our compliments and our criticism did include the same point, as suggested by Jason in the post: “The involvement of politically polarizing figures will ruin and destroy the credibility of a good movement.” Jason’s post came early in the Tea Party movement, and yet with folks like Palin and Huckabee seizing “leadership” of the movement, it seems that he has been proven correct.

#9. Mercantilism, Fascism, Corporatism — And Capitalism – Brad Warbiany: One of the hardest political subjects to grasp is economics, largely due to constantly misused terminology. This post simply and directly defines the terms and explains how they’re misused.

#10. Libertarianism and Democracy (pt 1), Libertarianism and Utilitarianism (pt 2) – Brad Warbiany: These two posts became a bit of a two-part series based upon comments, but at this point they still fit together quite nicely. The first post of this pair is a response to a leftist who complained that libertarianism is anti-democratic. In short, one is a moral system and the other is a political system, making the statement in itself nonsensical. The second post compares libertarianism to utilitarianism, which is much more apt as both are moral systems. Those who support socialism often [misguidedly] do so for utilitarian ends. Crowing to them about liberty accomplishes little, because they are working from different first principles. Showing them that socialism isn’t the best utilitarian system is a much better tactic.

Honorable Mentions:

The below two posts advanced far enough in the voting to merit mention, falling just short of the above:

Ramos and Compean Should NOT be Pardoned – Stephen Littau: In the waning days of the Bush administration, conservatives argued a pardon for two Border Patrol agents who were convicted of shooting an unarmed illegal immigrant in the back while he fled resisting arrest, and then covered it up. Stephen pointed out quite well that even if the facts those advocating pardon suggested (that the fleeing immigrant was a drug smuggler), a pardon was STILL not warranted.

An Open Letter To Neal Boortz – Jason Pye: Neal Boortz, a prominent libertarian/Republican radio host and advocate of the FairTax, was actively pushing for Mike Huckabee in the 2008 elections. He did this, one must think, because of Huck’s support for the FairTax, as having listened to Boortz quite a bit, the two agree on very little else. Jason Pye, in intense detail, explained all the reasons why Mike Huckabee is and should be anathema to libertarians. Replete with enough supporting links to crash Internet Explorer (sorry, bad example, that’s not saying much), I think that this post is one that should be kept around in the run-up to 2012, when Huck may return.

That wraps it up. As mentioned, feel free to post your memories of the last five years down below in the comments.

Aren’t You Glad To Be A Gamma?

I had a really interesting philosophical discussion with Brad Warbiany, our curator at The Liberty Papers, over a Facebook status I wrote. I had just re-listened to the CBS Radio Workshop rendition of Brave New World and had commented that it seemed like a far more livable situation than 1984.

Warbiany added that California, if Prop. 19 passes and allows the modern equivalent of soma to be freely ingested, the state really will look like Brave New World. With the state already self-organized into a caste system (Listen to someone from Northern California talk about Southern California or someone from Berkeley talk about Sacramento some time), abortion and every sort of contraceptive widely available and the domination of a vapid mass culture (seen at San Diego Comic Con or Wonder Con in San Francisco) taking precedence over civic involvement for Californians, the Golden State really resembles Huxley’s “negative utopia.”

Warbiany also handed me this great cartoon:
Orwell v. Huxley

On Twitter, alot of progressive and libertarian leaning activists tend to advocate alot for issues of freedom and emancipation in countries like Iran or China. In a way, situations in so obviously repressive countries like those are much easier for the activist. They fit into the Orwell dynamic and the villains and heroes are very clear. In his opposition to the death penalty, our own Stephen Littau does take on the American equivalent to state repression. Along with questionable foreign policy and drug policy, however, those are really the only avenues for passionate American political activism.

Beyond such clear issues of state force, however, one runs into a brick wall when faced with the mass culture, dullness and vapidity of consumer society. It seems that in this society, the majority of more normal people (myself and most people reading this strongly excepted) do not become Jeffersonians but instead “turn on, tune in and cop out,” as Gil Scott Heron once said. How does one become an activist in a society in which people freely subjugate, segregate and limit themselves?

I have a funny story that relates to this, that I didn’t even remember until I read what Brad said. While living in Alameda, California, I lost my phone. A teenage girl, around college age most likely, found it and called my mom, who e-mailed me about it. When I got the phone back, I was really grateful but had no money on hand. The only possession I had literally was a copy of Aldous Huxley’s Brave New World. I offered it to her.

She literally responded, “No thanks. I don’t read.”

I know. Alameda is not a low income area where reading should be rare, either. There are several bookstores in the area, along with hip restaurants, record stores and everything else you expect in cosmopolitan society. It even has an incredible vintage movie theatre that I rank as the best in Northern California, next to Oakland’s Grand Lake Theatre. This girl was obviously more involved in other factors of modern life, all of which I can safely assume are of less consequence intellectually than the work of Huxley.

It’s especially ironic given that there is a passage in Brave New World in which infants are given books while bombarded with screeching, loud noises, in order to dissuade them from being too intellectual when they reach adulthood. With video games, television, the internet and iPhones, that seems unnecessary as modern people have been incentivized out of intellectualism.

That girl did go to extra trouble to give me my phone back, with no advantage to her, however. That means she had a decency and sense of altruism that her lack of reading hadn’t impeded. Having grown up around the hyper-educated and being on that road myself, I can also attest that we’re not the nicest group of people. Perhaps then we really are on the road to progress.

I Was Wrong About the War in Iraq

The following is a post I started a little over 2 years ago explaining my 180 concerning the war in Iraq. This is easily the most difficult post I’ve ever written because of the life and death nature of the subject matter and admitting being on the wrong side of this issue for so long. As tempting as it has been to continue to ignore this issue, I felt that I owed it to the readers of The Liberty Papers to finally explain myself before moving on to other posts.

I think that most Americans on both sides of the Iraq debate have the best interests of America at heart (to the extent there even is a debate anymore).

Much of the Iraq debate seems to be based on emotion rather than reason. Emotional talking points from the Left such as “Bush lied, people died” (though I do believe he over sold the threat), “Bush wanted to be a war time president,” and “the Iraq war is really about Halliburton” or “BIG oil” remain unconvincing to me. I took great exception to war critics who resort to calling anyone who supports any war for any reason a “war monger” or a “chicken hawk” (and I still do).

I also took great exception to those on the Right who would say that “you can’t support the troops if you don’t support the mission.” Such a claim is obviously ludicrous because some of the troops themselves do not support the mission. That would mean they do not support themselves! Arguments that individuals should not criticize the president because “we are at war” have always seemed Orwellian and scary to me.

Though I like to think of myself as a man of reason, reasonable people will fall into emotional traps from time to time; no one is 100% logical or reasonable 100% of the time on each and every issue. I fell into the emotional traps that many on the Right (and most everyone else for at least a short time) fell into in the aftermath of 9/11: anger, hatred, and fear.

Why I supported the War in Iraq

My immediate response to the aftermath of 9/11 was anger, hatred, and fear (and I’m sure I wasn’t alone). I was angry that these religious extremists attacked my country, I hated them for their reasons for doing so, and I feared more attacks would come at any moment. I wasn’t interested in justice for those responsible for the attacks, I wanted vengeance!

Though I never believed that Iraq had anything to do with the 9/11 attacks, I believed that it was time to rethink my positions on how America should deal with rogue states such as Iraq. While I would not have supported invading a nation, overthrowing that nation’s government, and rebuilding a nation prior to 9/11, it seemed that America needed to be proactive and “preempt” such nations from even the possibility of attacking America first. I supported the invasion because I truly believed the WMD threat was real and that overthrowing Saddam Hussein would lead to liberty spreading throughout the region and thus would make America safer.

For a short time, this theory seemed to becoming a reality. U.S. and coalition troops defeated the Iraqi forces in record time. The cable news channels showed Iraqis pulling down Saddam Hussein’s statue and in broken English saying such things as “Thank you America” and “Thank you Mr. Bush.” Shortly thereafter, President Bush made his infamous tail-hook landing on the U.S.S. Abraham Lincoln which had a large banner which read “Mission Accomplished.” I thought for sure that this meant the troops would be coming home and that the critics of the war had been proven wrong in their dire predictions. Sure, Saddam Hussein and his sons were still at large, there was still some violence in the immediate aftermath, and no stockpiles of WMD had been found but all these things would be taken care of in a matter of time. A few more months perhaps?

It all made a great deal of sense in theory but the reality seems to be quite different.

What Changed?

It’s hard for me to pinpoint exactly when I began to realize the invasion and subsequent occupation Iraq to be a mistake. When weapons hunters failed to find the WMD in the first couple of years after the invasion, my thinking was that perhaps the “preemption” approach was wrongheaded but because the troops were already there, the damage had already been done. I believed that because American foreign policy lead to the chaos that followed the invasion, it was the duty of our government to clean up the mess (i.e. the “you broke it, you bought it” argument). I further believed that if coalition troops pulled out of Iraq “the Islamofascists will follow us home” unless the Iraqi government was stable enough to handle the violence itself.

The truth of the matter is my reasoning was clouded by fear. This post I wrote in early 2007 illustrates this fear . We could not afford to allow our enemies to claim victory in Iraq as they would become “emboldened” and be encouraged to carry out future attacks both on American soil and abroad. This is not a war we could afford to lose; failure was not an option.

But when I was challenged by readers and fellow TLP contributors define exactly what “victory” in Iraq would look like, I struggled in vain to find a satisfactory answer. I now realize that if American troops were to leave tomorrow, next year, or 100 years from now, the radical Islamists will claim victory no matter when the troops leave. They are master propagandists and those who follow their ideology do not allow facts to get in the way of their beliefs. Some of these people don’t even acknowledge that the Holocaust even happened despite all of the mountains of documentary evidence to the contrary.

The first thing that has changed in my thinking is the fear factor. The whole purpose of terrorism is to cause people to be terrorized. When we overreact and do such things as pass the Patriot Act, surrender liberties we otherwise would not, or send troops to fight undeclared wars against countries that might have WMD and may directly or indirectly use these weapons against the U.S. or her allies, the terrorist act has accomplished its intended goal.

The second big change is my understanding of contemporary history. My thinking was that America’s military might would be enough to transform the Middle East from a region of oppression to a region of freedom. These were people yearning to be free. All that needed to happen was for the despots to be deposed, the people liberated, and our world would be more peaceful as a result.

In the Point post “A Case for Non-Intervention,” Brad correctly pointed out the flaws of this logic of fatal conceit: that man can shape the world around him according to his wishes. By the time I wrote the Counterpoint to Brad’s post, I was already beginning to see the error of my thinking but still holding out hope that somehow we could avoid the “reverse King Midas effect” this time.

But why would this time be any different?

At least since President Woodrow Wilson, the U.S. has been intervening in internal affairs of other countries allegedly to “make the world safer for democracy.” But rather than making the world safer, in most cases it seems, American foreign policy has created more enemies rather than less. The conditions that led up to the adventures in both Iraq and Afghanistan are in many ways the result of American foreign policy. The continued presence of American troops occupying and nation building in Iraq, Afghanistan, and elsewhere fosters resentment among these populations.

Lessons Learned

One argument I used to make was that leaving Iraq as a failed mission would mean that those troops who had died for the cause would have died in vain. I no longer believe this necessarily has to be the case if we as a people learn the right lessons of Iraq.

There were people who opposed the war in the very beginning for very principled reasons (and I’m not talking about the so-called anti-war Democrats who seem to have nothing to say about Iraq now that their guy is in office). Others like me, unfortunately, had to learn the lessons of Iraq the hard way. I was naive and trusted that the government was acting in such a way that would make its citizens safer but I now see the error in this thinking. Neither North Korea nor Iran seems to be slowing down their WMD programs as a result of Operation Iraqi Freedom. And despite the anti-terror policies that have been enacted since 9/11 and despite this war, our cities are likely as vulnerable if not more so than before 9/11. Our own government is a much greater threat to our liberties than al Qaeda ever will be.

It’s really the open-ended nature of this “war on terror” and failure on the part of our government to define who exactly the enemy is that makes the concept of victory unobtainable. Who specifically is our enemy? Is it just al Qaeda and/or the Taliban or is it anyone and everyone the U.S. government calls a “terrorist”? If we cannot even define exactly who our enemy is, how is victory even possible?

Once the enemy has been identified, the congress (not the president) should debate whether or not to declare war on the enemy. Any declaration of war should include not only who the enemy is but define in precise terms the meaning of victory (as opposed to making it up as they go along). The idea of going into another undeclared war in the future should be considered a complete non-starter (and the notion of “preemptive” wars of choice in particular).

Now What?

Its time for the people of Iraq to decide for themselves what kind of future they want. Our brave soldiers have done the heavy lifting for far too long. Its time for our brave troops to come home to their families and let them move on with their lives.

Ditto for Afghanistan. The only troops that should be left behind should be those with the sole mission of hunting Bin Laden and his extremist followers. The nation building mission should be brought to an end.

Its time to completely rethink the American foreign policy of the last 100 years or so. Has the presence of American troops made the world, and more importantly America safer? Is it still necessary to our national security to have so many troops stationed around the globe? (Was it ever?) What ever happened to the “walk softly” part of “walk softly but carry a big stick”?

Its time to move beyond the Cold War posture and allow other nations to determine their own futures.

In the mean time, we should be doing all we can to secure our own futures and help our wounded war veterans put their lives back together.

A New Introduction

I am honored to join The Liberty Papers.

Brad Warbiany and Doug Mataconis have been very welcoming, and my new realm into libertarian thought should be fulfilling and rich.

I’ve been at United Liberty for two years, starting with the 2008 election and running all the way up to coverage of Arizona’s discriminatory immigration law. My work goes back even further, back to the San Francisco Examiner and the neighborhood newspapers North Seattle Herald Outlook and Madison Park Times in Seattle, Washington.

In the times we live in, there seems to be a political shift going on. The United States is becoming more ethnically diverse, the economy continues to stagnate, and government is making short term maneuvers without foreseeing long-term effects. On the other side of the coin, the Right, who talk a lot of jive about freedom, are parading their own twisted form of nationalism. In these times, it’s important to try to solidify and distinguish the libertarian movement as a separate alternative to the forms of authoritarianism so far proposed to us. I hope my work at The Liberty Papers will help to do that.

I am also currently working on a book on the future of race in politics. It should be finished within the year and published subsequently.

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