One in Thirty

Here (pdf) is the Bureau of Justice Statistics’ report on Rape and Sexual Assault Victimization Among College-Age Females, 1995–2013.

Some highlights (all statistics are for women aged 18–24 unless otherwise noted):

6.1 out of 1,000 college women experience “sexual victimization”—rape, attempted rape1 or sexual assault2—annually.

This is much lower than the 1–in–5 statistic that is widely bandied about by those who think there is an epidemic of rape on American college campuses. Even if we multiply 6.1 by five (for five years in college), the rape rate in American colleges is 3.5%.

A few years ago Chad Hermann crunched the numbers of reported sexual assaults at three Pittsburgh Universities, applied a 10X multiplier for 90% of sexual assaults being unreported, and came up with a number of the same order of magnitude (1 in 44, assuming a four-year college career).

I ran the numbers for my alma mater, which has had two alleged sex offenses reported every year for the last three years, and has about 2,190 female students. That’s a rate of 0.91 reported sexual assaults per thousand female students. If we assume that 90% of sexual assaults go unreported and multiply by ten, we have 9.1 sexual assaults per thousand female students per year, and if we multiply by five years we have a 4.5% chance that a Rice woman will be sexually assaulted during her five years at Rice3

That “90% unreported” assumption is probably not valid, though. The BJS report found that 20% of “sexual assault victimizations” were reported to the police by college women. If instead of 10X we use a 5X multiplier, we have 4.6 sexual victimizations (reported or otherwise) per thousand female Rice students per  year. The reasons victimizations went unreported were:

  • Reported to other official, 4%;
  • Personal matter, 26%;
  • Not important enough to respondent, 12%;4
  • Police would not or could not do anything to help, 9%;
  • Did not want to get offender in trouble with the law, 10%;
  • Advised not to report, <0.5%;
  • Fear of reprisal, 20%; and
  • Other reason, 31%.5

(The first six of these, covering 61% of cases, seem to me like reasonable reasons not to report sexual victimization as defined by the study (including attempted rape,6 grabbing, and fondling) to the police, but fear of reprisal should never stop anyone from reporting a crime—that’s just bad policy.)

Nonstudents, by the way, report 32% of their sexual victimizations rather than 20%.  They are also are 20% more likely to experience rape, attempted rape, sexual assault, or the threat of rape or sexual assault. And those victimizations are 50% more likely to be completed sexual assaults.

Breaking down the student/nonstudent differences even further,

Screen Shot 2014-12-12 at 2.14.52 PM

18-to-19-year-old nonstudents are 1.6 times as likely to experience sexual victimization as students are.

White nonstudents are 1.4 times as likely to experience sexual victimization as students are.

Northeastern nonstudents have the lowest rate of sexual victimization, followed by rural students and southern students.

Midwestern nonstudents (the group with the highest rate) are about 130% more likely to experience sexual victimization than southern students (with the lowest rate).

Men are, as you would expect, raped at lower rates than women, but male students are four times as likely as nonstudents to experience sexual victimization.

The “one in five” number will probably never go away. It’s been challenged and debunked before, and still it gets trotted out as gospel truth. But the actual numbers are much smaller and would be smaller still if respondents got to define “sexual victimization” themselves.7


  1. “Rape is the unlawful penetration of a person against the will of the victim, with use or threatened use of force, or attempting such an act. Rape includes psychological coercion and physical force, and forced sexual intercourse means vaginal, anal, or oral penetration by the offender. Rape also includes incidents where penetration is from a foreign object (e.g., a bottle), victimizations against males and females, and both heterosexual and homosexual rape. Attempted rape includes verbal threats of rape.” 

  2. “Sexual assault is defined across a wide range of victimizations separate from rape or attempted rape. These crimes include attacks or attempted attacks usually involving unwanted sexual contact between a victim and offender. Sexual assault may or may not involve force and includes grabbing or fondling. 

  3. But realistically, who can afford five years at Rice anymore? 

  4. Some victimization! 

  5. Miscellaneous is always the largest category.
    — Walter Slovotsky, The Warrior Lives by Joel Rosenberg 

  6. Question: If you define rape to include sex by psychological coercion, does that make trying unsuccessfully to convince someone to have sex “attempted rape”? 

  7. What the studies have done is said, in effect, “sexual victimization includes an unwanted come-on,” defining sexual victimization more broadly than people define it in everyday life.  “[I]n a comparable survey, the federally sponsored 2007 Campus Sexual Assault study, two-thirds of the women classified as victims of drug- or alcohol-induced rape and 37 percent of those counted as forcibly raped did not consider the event to be a crime.”

    Here is where most people would put in obligatory mealy-mouthed statement to prove their anti-rape bona fides, but my readers are smarter than most. 

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Journalism!

When I first saw the Rolling Stone UVA rape story by Sabrina Erdely, I’d been thinking about satanic ritual abuse stories because Fran and Dan Keller were in the news. I tweeted:

Speaking of satanic ritual abuse: http://t.co/MyO2bC2Cjm
— Mark W. Bennett (@MarkWBennett) December 1, 2014

The story was unbelievable to me. Not “unbelievable” in the loose sense of “sensational,” but literally unbelievable. I knew that the story was false

The Erdely UVA story is going to turn out to be a long rambling joke. “Journalism!” will be the punchline. — Mark W. Bennett (@MarkWBennett) December 2, 2014

I say that “I knew it.” For you to know something, three conditions must be met: you have to believe it, it has to be true, and you have to have reason to believe it.

I believed that Erdely’s story was false.

The story—of a violent gang rape—was false. It appears from the rereporting performed by the Washington Post that the alleged victim made up the story as part of an elaborate scheme to win the love of her friend “Randall.”

So to have known the story to be false, I have to have had reason to believe that the story was false. Did I? Nonlawyers asked me why, as a criminal-defense lawyer, I found the story so incredible.

As a criminal-defense lawyer, I ask three big questions when trying to get to the truth of a story:

•    What else must be true for this to be true?
•    What if things had gone a little differently?
•    What’s really going on here?

If Erdely’s story were true, seven men violently raped a sober woman on broken glass upstairs in a house for three hours while a party was going on downstairs. Two men watched. Then the nine men left the woman lying there alone, “face beaten, dress spattered with blood” to make her own way out of the house ((With her cellphone? “Disoriented, Jackie burst out a side door, realized she was lost, and dialed a friend, screaming, ‘Something bad happened. I need you to come and find me!'”)) while the party was still going on downstairs. Then when, that very night, the woman reported the rape to her three best friends on campus (two men and a woman), the three “launched into a heated discussion about the social price of reporting Jackie’s rape,” and decided not to report it.

What else must be true for this story to be true? Each of these twelve people who knew what happened to Jackie that night must have valued his or her own interest above the principle that men shouldn’t rape women.

Violent rape is abhorrent to the American male.1 There are men who are exceptions to this rule, who have no compunction against violent rape, but they are few and far between, and they don’t advertise the fact—talking about it could be lethal—so the odds against finding nine of them in one room outside of a prison are slim.

Erdely’s story was intended to demonstrate that violent rape of women is accepted in American culture. But for the story to be believable the reader would have to already believe a) that violent rape of women is accepted in America; and b) that because of this acceptance eleven men and one woman who knew about a violent rape kept the secret for two years.

It’s all very circular—if you believe that we live in a “rape culture” with a callous attitude toward rape then the story is perfectly believable, and it proves that we live in a rape culture. If you don’t believe that American men are okay with violent rape then the story is unbelievable and it proves nothing.

If you believe that three college freshman would count the “social price” of reporting a violent rape that had just happened higher than than the ethical, moral, justice, and safety costs of not reporting it, Erdely’s story is credible. If you don’t believe that—and I don’t—the story is incredible.2

I didn’t believe that American men are okay with violent rape, I didn’t believe that the nine conspirators could keep the secret for two years, and I didn’t believe that three college freshman would count the social cost of reporting a violent rape that had just happened higher than the myriad soul-bankrupting costs of not reporting it. “What must be true for this to be true” gave me reason to disbelieve the story.

“What if things had gone a little differently?” is a truth-seeking question to ask when the story involves a deliberate plan or conspiracy. The more ways the plan could have gone wrong but didn’t, the more likely it is that the plan was fabricated after the fact.

For the imaginary man’s imaginary plan to succeed, a thousand things had to go just right; if any one of them had gone even a little bit wrong he would have landed in prison. His plan depended on (among other things):

  • None of the conspirators getting cold feet that night;
  • All of the conspirators keeping their secret, not spilling the beans while drunk or remorseful;
  • Jackie not calling the police while the room was still strewn with physical evidence;
  • No decent human being seeing Jackie leaving the party injured and intervening;
  • The people she told not themselves calling the police;
  • Jackie not reporting the rape to the police later, or the conspirators not rolling over on each other when threatened with prison time; and
  • Jackie not telling her story within the statute of limitations to a competent reporter.3

There are two explanations for how this plan succeeded so well for two years. Either the conspirators walked between raindrops, or the rape never happened. The second explanation is the most likely.

The third question, “What’s really going on here?” sets the allegations against known facts, verisimilitude, and plausibility, and finds the most probable explanation. “What’s really going on here?” led the Washington Post to evidence that “Jackie,” the alleged victim in the Erdely story, had fabricated the man whom she was supposedly going out with on the evening of her claimed rape. Not having the benefit of the Washington Post’s reporting at first, “what’s really going on here?” led me to the conjecture that something bad had happened to Jackie—that perhaps she had been sexually assaulted by her date at the fraternity house—but that she had blown the story up for Rolling Stone.

My three questions—What else must be true for this to be true?, What if things had gone a little differently?, and What’s really going on here? didn’t lead me all the way to what now appears to be the truth—that Jackie was catfishing Randall and fabricated the rape to try to win his heart—but each led me in the right direction and made me disbelieve the story as published.


  1. I say “violent rape” to try to prevent quibbling here over things that not everyone would agree are rape—sex while all parties are drunk, for example. The assault described in Erdely’s article would fit anyone’s description of “violent rape,” so we don’t have to argue about sex with implicit but not explicit consent, nor about gaze rape. Yes, I know that there are those who think that any unwelcome sexual attention from a man is violence. I recommend that they get out more. 

  2. A digression: what is required for us to believe these things about human nature that Erdely would have us believe? We would have to either a) accept them uncritically; b) be inclined toward callousness ourselves, so that callousness in others makes sense; or c) not be inclined toward callousness ourselves, but think that we are superior to most other people in this regard. Why “most other people”? I’ll get to that in a second. I believe that the credulity with which Erdely’s article was met was a result mostly of (a). People accept rape narratives uncritically. That so many people are shocked that the story is not true helps disprove Erdely’s rape-culture narrative. 

  3. Some people think that Erdely believed her source; I think this is too generous to Erdely. If Erdely had believed Jackie she would have done the investigation that she would have expected to corroborate her story. That she didn’t do that investigation suggests that she didn’t expect it to corroborate her story, which suggests that she knew that Jackie’s story was a fable. Journalism! 

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In Which New Vistas Open Up

It started with criminal First Amendment litigation. I fought for five years against a speech-restricting penal statute, learning the law along the way and finally punching a hole in the dam last year, freeing a lifetime’s worth of people who had already given up hope.

Naturally, I went on the hunt for other statutes to kill. My friend and fellow TLC alumnus Don Flanary of San Antonio beat me to the improper-photography statute, but he only killed (in Ex Parte Thompson) the part dealing with photography in a public place, leaving the part dealing with photography in a restroom or dressing room, as well as the parts dealing with publication of images. I’ve got challenges pending to those, as well as to the fraudulent-use-of-identifying-information statute, the online-impersonation statute, and some others.

In the course of working on these cases—and pointing out on this blog how many ways proponents of penal revenge-porn statutes get constitutional law wrong—I realized how little most lawyers actually know about free speech. I also got sued for hurting Joseph Rakofsky’s feelings, and had to pay Marc Randazza gobs of money to kick Rakofsky’s ass across the courtroom. It could probably have been done cheaper, but if it’s worth doing it’s worth overdoing, and Randazza provides entertainment value that I’m happy to pay for. Further, I had a friend file an ill-advised suit against someone for statements that were absolutely privileged, and I pulled his bacon from the fire.

Then Randazza had a client who had been sued by a Houston lawyer for hurting his feelings, and had had a default judgment entered against him, in Harris County. I’d done a good job of avoiding civil court since about my second year of practice, but I can read the rules and write a brief (a lawyer in the Piney Woods once called me “slick big city lawyer who uses the rules to his advantage”), so I signed on to carry Randazza’s bag and do the Texas Rules of Civil Procedure stuff. We got the default judgment undone, and Randazza got the case dismissed. A codefendant in that case hired me to carry his lawyer’s bag as well, and we were able to get the same result for them.

For most people, being sued is a big deal. Censorious asshats know that, and will threaten to drag people into court, or actually sue them, for hurting their feelings. Defending the First Amendment in civil court is little different than defending it in criminal court. Different rules and less money, is all.

So when the editor-in-chief of a Vietnamese newspaper reached out to me after being sued for libel by Al Hoang, a former Houston City Council member and sometime Republican candidate for the Texas Legislature because the newspaper called him a communist, I didn’t hesitate to sign on. I filed an anti-SLAPP motion, briefed it up, had a hearing last Friday, and this morning got this:

Dismissal Order in Al Hoang v. Thoi Bao

The only thing that I didn’t get was sanctions. The plaintiff, Al Hoang, a lawyer, had sued people at least four times before for hurting his feelings, but none of those cases had been dismissed under the anti-SLAPP statute, so the judge in my case didn’t sanction him. You can bet that he’ll try again, and you can bet that next time he’ll get whacked even harder.

That was fun, so I’m going to do more of it. I’ve always prided myself on doing one thing—criminal defense—really well. After almost twenty years of practice, though, there’s room in my practice to be really good at two things, and maybe in another couple of decades I’ll add another practice area and be really good at three.

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In Which Texas Sex-Assault Law is Bizarre

Texas Penal Code Section 22.011, Sexual Assault:

(a) A person commits an offense if the person:

(1) intentionally or knowingly:

(A) causes the penetration of the anus or sexual organ of another person by any means, without that person’s consent;

(B) causes the penetration of the mouth of another person by the sexual organ of the actor, without that person’s consent; or

(C) causes the sexual organ of another person, without that person’s consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor…

(f) An offense under this section is a felony of the second degree, except that an offense under this section is a felony of the first degree if the victim was a person whom the actor was prohibited from marrying or purporting to marry or with whom the actor was prohibited from living under the appearance of being married under Section 25.01.

Texas Penal Code Section 25.01, Bigamy:

(a) An individual commits an offense if:

(1) he is legally married and he:

(A) purports to marry or does marry a person other than his spouse in this state, or any other state or foreign country, under circumstances that would, but for the actor’s prior marriage, constitute a marriage; or

(B) lives with a person other than his spouse in this state under the appearance of being married; or

(2) he knows that a married person other than his spouse is married and he:

(A) purports to marry or does marry that person in this state, or any other state or foreign country, under circumstances that would, but for the person’s prior marriage, constitute a marriage; or

(B) lives with that person in this state under the appearance of being married.

So if you’re single and you rape a single person, it’s a second-degree (2–20) felony.

If you’re single and you rape a married person of the opposite sex, it’s a first-degree (5–life) felony.

If you’re married and you rape your spouse it’s a second-degree felony.

If you’re married and you rape a person of the opposite sex who is not your spouse it’s a first-degree felony.

If you rape a person of the same sex it’s a second-degree felony because you couldn’t marry him regardless of your prior marriage.

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In Which Some Lawyers Are Suckers at Best [Updated]

Dear _,

We are pleased to officially inform you that you have been chosen to receive this year’s prestigious TOP 10 Attorney Award for the state of Texas. Through a multi-phase selection process, the National Academy of Criminal Defense Attorneys (NACDA) has chosen you to receive our organization’s highest honor because of the hard work and dedication you have shown in protecting the rights of the accused.

The letter, signed by “Kelly D. Kerr, Executive Director,”1 was sent to a friend of mine by the “National Academy of Criminal Defense Attorneys, Inc.”, with a mailing address of 1629 K Street NW, Suite 300, Washington DC 20006 and a phone number of (202) 827-9985.

Googling that phone number turns up:

  • National Academy of Criminal Defense Attorneys, Inc.;
  • National Academy of Family Law Attorneys, Inc.;
  • National Academy of DUI Attorneys, Inc.;
  • National Academy of Personal Injury Attorneys, Inc.; and even
  • National Academy for Dental Professionals, Inc.

A little poking reveals that the registered agent for these five Oklahoma corporations, and for National Academy of Bankruptcy Attorneys, Inc., is either lawyer Ken D. Kerr, Jr. (DUI)2 or Shannon Rich (all the rest), both of Oklahoma City. These folks have come up with a way to extract money from pathetic lawyers desperate for validation.

The price for a Top 10 Attorney Award for the state of Texas is $350—it’s gone up since Matt Brown was chosen in Arizona last year.3 And speaking of bloggers, Murray Newman is listed by this Oklahoma corporation as one of the Top 10 Criminal Defense Attorneys in Texas! Congratulations, Murray.

You’ll notice that the National Academy of Criminal Defense Attorneys, Inc. website only shows ten lawyers in Texas; I wonder what they’ll do if more than ten suckers send in their checks—perhaps break the states with more than ten top ten lawyers down into areas, as “The National Trial Lawyers” of Dothan, Alabama has done, and break down the “Naitonal” “Top 100 Trial Lawyers” by state, practice type (civil? criminal?) and even part of the state (North New Jersey? South New Jersey?). If the 40% price increase over the last year is any indication, Rich and Kerr will keep raising their rates until exactly ten lawyers are willing to pay.

Screen Shot 2014-11-05 at 4.12.20 PM

I said “suckers” because paying $350 or even $250 for a fake honor (most of the lawyers on the top-10 list are smart enough to know that they’re not among the top 10 criminal-defense lawyers in Texas) is a sucker play.

It’s a sucker play unless you take advantage of it—knowing that you’re not legitimately among the top 10 criminal-defense lawyers in Texas, you pay the $250 or $350 and then advertise the fake honor. Paying $250 for the right to use the keywords “top 10,” when you know they don’t really apply? That’s something else entirely.

On his website trumpeting his selection, my friend Neal Davis4 parrots NACDA:

The National Academy of Criminal Defense Attorneys uses a thorough selection process to determine the top criminal defense attorneys in each state. With thousands of attorneys in each state, the NACDA’s rigorous, independent selection process resolves the challenge of attorneys claiming to be “the best” without basis for such claims.

Look at this list, Neal, and tell me that’s not a lie.

[Update: Murray didn’t pay for the honor. It’s strange that even when they include people who don’t pay, the Oklahoma corporation can only find nine lawyers to list in the top ten in Texas.]


  1. Kelly’s signature does not look practiced. I wonder whether it is fake. 

  2. Ken D. Kerr? Kelly D. Kerr? What a coincidence! 

  3. Matt’s letter was signed by Shannon Rich. 

  4. I pick on Neal, rather than Carmen, Grant, Murray, or Todd, because he is trumpeting this horseshit. 

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In Which We Look at Plea Numbers

In 2013, while 8 percent of all federal criminal charges were dismissed (either because of a mistake in fact or law or because the defendant had decided to cooperate), more than 97 percent of the remainder were resolved through plea bargains, and fewer than 3 percent went to trial. The plea bargains largely determined the sentences imposed.

While corresponding statistics for the fifty states combined are not available, it is a rare state where plea bargains do not similarly account for the resolution of at least 95 percent of the felony cases that are not dismissed; and again, the plea bargains usually determine the sentences, sometimes as a matter of law and otherwise as a matter of practice. Furthermore, in both the state and federal systems, the power to determine the terms of the plea bargain is, as a practical matter, lodged largely in the prosecutor, with the defense counsel having little say and the judge even less.

Jed S. Rakoff, Why Innocent People Plead Guilty.

What do the numbers look like in Harris County? From November 2013 to October 2014 there were 31,076 felony cases disposed of (excluding probation-revocation cases) in the county.1 Of those, 5,501 were dismissed. Of the 25,575 undismissed felony cases, 25,205 (98.6%) were resolved with guilty pleas (which might have included plea bargains or might have been “open” pleas with no agreed punishment).

But Rakoff’s chosen statistic—percent of undismissed cases that are tried—doesn’t tell the whole story. Of the 5,871 (18.9%) of cases that didn’t end in guilty pleas in Harris County, 5,582 (95.1% of non-pleas, 18% of all dispositions) were wins for the defense—mostly dismissals,2 but 81 acquittals.

Rakoff implicitly writes off those dismissed cases as inconsequential. They are not. There are 22 courts trying felonies in Harris County. If each of them tried a case to a jury a week with two weeks off a year they could try 1,100 cases. This is a theoretical maximum—that trial pace would crush most judges. If 5,871 defendants refuse to plead guilty in a year, at least 4,771 of their cases will be dismissed because of sheer numbers.

When occasionally some naive young lawyer proposes that the defense bar shut down the system, he doesn’t realize that we are already doing it; as long as at least 1,100 people are refusing to plead guilty, each additional defendant who doesn’t plead forces the State to dismiss someone’s case. It might not be that defendant’s case, but something has to give.

Almost every case I’ve ever had dismissed was dismissed after my client rejected a plea offer and I had prepared for trial. Many of them were dismissed on the eve of trial, or with a jury in the hall. The 5,501 dismissals in Harris County were not “because of a mistake in law or fact or because the defendant had decided to cooperate,” as Rakoff describes dismissals in federal court. Sure, in a few of them the State had decided that they had gotten it wrong—charged the wrong guy, or the right guy with the wrong thing—but most of those cases were dismissed because the defendant refused to plead guilty and the State decided that its time would be better spent elsewhere.

Rakoff’s experience is in federal court, where small numbers of cases are dismissed, and where the sentencing guidelines, by rewarding early guilty pleas, discourage defense brinkmanship and encourage government brinkmanship. It’s easy and convenient to write off those few dismissals as prosecutors doing what the law or facts require, or rewarding cooperators. Closer to earth, where most criminal prosecutions actually take place,3 the dynamic can be quite different. Not that the federal system doesn’t need reform to remove the concentration of power from the hands of petty functionaries, but the picture drawn in federal court does not represent the rest of the country. The dynamic is different in Harris County, at least.


  1. Numbers are from the Office of Court Administration

  2. Though some of those dismissals don’t count for much, since they were consideration for pleas to other charges. 

  3. In 2012 the Department of Justice filed charges against 85,621 defendants nationwide—fewer than were filed in L.A. County and Harris County combined 

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In Which Cultures Clash

I recently had a discussion with a lawyer from another culture. One of my clients is a potential witness in one of his cases, and my client got tired of hearing from him. So I sent the lawyer a brief email asking that he not contact my client anymore. I said “please” and “thank you,” but otherwise didn’t mitigate my speech. Because the rule is very simple:

in representing a client, a lawyer shall not communicate or cause or encourage another to communicate about the subject of the representation with a person, organization or entity of government the lawyer knows to be represented by another lawyer regarding that subject, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

(Texas Disciplinary Rule of Professional Conduct 4.02). I’ve been on both sides of the situation many times, and there’s never been any drama: you might push the bounds in dealing with someone whom you don’t know to be represented regarding that subject, but if another lawyer asks you not to talk to his client about the subject of his representation, you just don’t. It’s a matter not only of the law (the rule), but also of respect for the lawyer-client relationship.

The lawyer got upset that I had asked him not to speak to my client. He told me that my client was his witness, that he didn’t care about the rule, and that he would talk to my client if he wanted to. I think he wanted to fight me over it. His culture, you see, is a culture of honor, and apparently I had inadvertently1 offended him by asking him not to talk to my client.

If I were so assiduously looking for opportunities to take offense, I’m sure I would find it everywhere. I can’t imagine that would be much fun; it might make personal relationships difficult to maintain. And if the people who I perceived as having slighted me rejected and even laughed at2 the idea of letting me fight them to restore my honor, I’m sure that it would be very frustrating. I might even lash out, which in a culture of law could land me in jail and jeopardize my license.

So I don’t know how it works out, being a culture-of-honor lawyer in a big-city criminal courthouse. I suspect that long-term results are mixed at best.


  1. I do try not to offend people inadvertently. 

  2. While I reject this guy’s invitations to fight, I’m not laughing at them—I take violence, including the threat of violence, very seriously. 

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In Which We Find the Game

I often say that criminal-defense trial practice is about playing “what’s really going on here?” At every phase of a trial case, we are dealing with people who aren’t telling us the whole truth, because they don’t know it, don’t know its importance, don’t want to tell it, or don’t want us to know it. The facts are usually, at first glance, bad for us (else the client wouldn’t be a client), but there is always more to the story than the facts reveal at first glance. So the criminal-defense trial lawyer’s job is to figure out what’s really going on, the interesting twist, which is probably not explicitly stated, and to turn that truth to the client’s advantage.

In improv class we’re working on finding “the game of the scene,” the interesting twist, which is probably not explicitly stated and…hey, that’s “what’s really going on here?”!

On an assault case recently a prosecutor described the disputed issue like this: “she says she pulled the gun on him because he was assaulting her; he says he was defending himself because she pulled the gun; that’s the game.” I might not agree with him that that is the game, but I agree with him that there is a(t least one) game.

Without a game there is no trial.

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In Which the News is Good

Dallas’s index Ebola Zaire patient, Thomas Duncan, was at home for four days while he was symptomatic with Ebola. His family were not infected with the virus.

While Duncan infected two nurses at the hospital during his final days (when he was leaking blood from every available orifice) he didn’t infect the people who lived with him when he was very sick—sick enough to have gone to the hospital and been sent away.

One of the commenters on my last Ebola post pointed out that Ebola has a very low basic reproduction number, R0, of about two. R0 is not an inherent characteristic of a virus, but depends on the environment. The R0 for Ebola Zaire has been calculated as 2.7 in some outbreaks, but 2.0 in this one in Africa. As long as R0 is greater than one, the disease will continue spreading. If R0 were intrinsic, Ebola Zaire would continue spreading until eventually everyone got sick. Fortunately, R0 will be lower in a more developed nation than in the Third World.

Given that neither of the people whom we know Duncan to have infected appears to have infected anyone else, R0 for Ebola Zaire in Dallas in 2014 is something less than one (2/3?).

What about the scary transmission through the air? The good thing about that is that Ebola doesn’t make you cough or sneeze. So while an infected person can, contrary to the government’s assertions, transmit the virus through the air, it’s not a mode of transmission of which the virus has evolved to take advantage (contrast a cold or flu virus, which spreads by making you expel virus-laden particles at high velocity through your mouth and nose).

So I’m downgrading my concern about Ebola in the U.S. from “do something now” to “play Whac-A-Mole as cases appear.”

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