The Uphill Slide

There is always something.

What’s The Probability That…..?

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I sometimes like to start a post with word definitions. It helps to place me and any reader at the same point of understanding. Google defines probability as (https://www.google.com/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q=probability+definition) ‘the extent to which something is probable; the likelihood of something happening or being the case’. Here is what the Math is Fun website (www.mathisfun.com/definitions/probability.html) says ‘Probability is the chance that something will happen – how likely it is that some event will happen. It goes on to say ‘Sometimes you can measure a probability with a number like “10% chance of rain”, or you can use words such as impossible, unlikely, possible, even chance, likely and certain.’ Those are words that invade our speech daily. Google then defines statistics as (https://www.google.com/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q=statistics+definition): ‘Statistics then is the practice or science of collecting and analyzing numerical data in large quantities especially for the purpose of inferring proportions in a whole from those in a representative sample’.

As part of my coursework in Human Resources Management at Indiana University of Pennsylvania, I was required to take courses in probability and statistics. Those dreaded courses were oddly interesting. There are statistical methods to be followed in collecting data and analyzing it to make those calculations and determine probabilities. What is the researcher trying to predict? The data must be relevant and worthwhile; otherwise your predictions may not be very useful. There are standard deviations and errors to be calculated. The statistics and probabilities could be illustrated on a bell curve or graphs or other diagramming devices for those of us who prefer a picture with those numbers. Anyway, the point is that someone with a large enough data sample can make predictions. Why did I start thinking about probabilities?

A few weeks ago my brother and I had a conversation about serious illnesses and those statistical rates of survival given by medical professionals. Sometimes those rates are not in our favor, but his point was: No matter how low that number might be, there is every reason to believe that any one of us could be one of that select group of survivors. He told me a friend had a ruptured aorta, a medical event with a 5% survival rate. The friend survived. We might call that a miracle or say he was lucky or he beat the odds. We believe in the lucky and unlucky. Every day many of us plop down our dollars to buy lottery tickets. More and more of us buy tickets when that Powerball jackpot grows to a figure that might take us weeks to count. We buy tickets despite knowing that our chances of winning are astronomical; eventually someone does win though. Maybe we will be the lucky one next time.

So lady luck (why is luck female?) might be on our side–winning the lottery or surviving that medical crisis. Then the flip of the coin suddenly lands on the unlucky side. Despite a low probability, the unlikelihood of an event, the unthinkable bad thing happens to one of us. Some bad things are inevitable, and we will all experience them. Our loved ones die, and sometimes much too early. We may talk about the probabilities in the timing of those events. We expect a certain progression to death. First our grandparents die, then our parents die, then our spouse or significant other dies, and finally we die before our children or grandchildren. When that progression deviates from our expectations, we ask why? What is the likelihood that a parent will survive their child, for instance? What is the likelihood that an ill spouse outlives the seemingly healthy spouse? We try to make sense of it; why do bad things happen to good people? Philosophers and theologians try to answer that question. It is even the title of books: WHY DO BAD THINGS HAPPEN TO GOOD PEOPLE: ANSWERS TO ONE OF LIFE’S GREATEST MORAL QUESTIONS or WHEN BAD THINGS HAPPEN TO GOOD PEOPLE. I have not read either, but I just ordered the latter from Amazon. Is there really an answer that will help me understand why my innocent son sits in jail? I liked this review by J. Lizzie from July 7, 2000 of that book. This person wrote, “….what struck me was that Rabbi Kushner was able to reconcile a common Judeo-Christian view of God and causality with a perspective of life that holds a place for randomness and happenstance”.

What was the probability that Jacob, who had never been in trouble and never had accusations aimed at him in previous employment caring for young people, would suddenly be accused and arrested on sexual abuse charges? I would have said there was a low probability of that event, yet that is what happened. How could I calculate an accurate probability for such an event? Where would I find my sample pool to collect data? What was the probability then that my son would be convicted of these charges solely on testimony of this accuser with no supporting forensics or evidence? Again, I would say low probability; yet that is exactly what happened to Jacob. Here I might collect data from other cases where the accused was convicted solely on testimony? Would the sample pool be large enough to make predictions?

How did Jacob reach this point? Here is where I will eventually return in my posts to my explanation of randomness and happenstance. The ex-family would say it was because he was guilty. Their actions appear to support a belief in 100% probability of his guilt– absolute certainty. There is no room for error. Why do I say this? I make this statement because not one person in Jacob’s ex-family– not his ex-wife or the accuser’s mother or any other person in their sphere ever confronted Jacob. Theoretically, not one person had a single question to ask Jacob in the almost week between that first disclosure and Jacob’s arrest. I had a million (exaggeration) questions that I wanted to ask of members of this family and others connected to them as I dwelled on all the things that had happened in the weeks preceding the arrest and going back through all the years of Jacob’s relationship with his ex-wife. Instead, I write my questions and thoughts to freeze them in time. Questions are never-ending. I hypothesize that the ex-family wanted to believe these accusations because they wanted to punish him for every perceived wrong committed by him. He was the outsider in this group; the person to single out for whatever blame needed to be levied. I empathized with him in that feeling that he did not belong. At this time of year, I think of the last Christmas he spent with this family. He asked Roy and me to come to his brother-in-law’s house to celebrate, and I felt a sadness for him that Roy refused. My mother-in-law predicted from the beginning of the engagement that Jacob’s in-law family would always take precedent over his own. Were we really even invited? We were seldom invited to events by the actual host/hostess. We went for Thanksgiving dinner one year to Jacob’s mother-in-law’s (just his girlfriend’s mother at that time) house. We were invited by his girlfriend and not by her mother personally. Still, we were expected to dinner. On another occasion, Jacob’s brother-in-law’s mother-in-law (I know this can be confusing the way I write without actual names.) was having a picnic on the weekend before Jacob’s wedding. Again, this woman did not invite us herself; our invitation came from either Jacob or his fiancée. When I called this woman to inquire what I might bring, there was that almost imperceptible pause and moment of confusion at my call. I always wondered whether she had actually meant to invite us; I never shared those feelings with Roy. His statement would have been as always, “I don’t go where I’m not wanted.” He was angry with me when I went to my ex-daughter-in-law’s birthday celebration in Lawrenceville the month before the arrest: I told him I went for Jacob. I believe now that my intuition was telling me that Jacob needed us by his side, and we fell down on the job. I saw him always as the outsider, the outcast, the interloper of this family. I felt it somewhere deep inside. His ex-brother-in-law’s speech at the rehearsal dinner had that underlying message. His ex-father-in-law’s attitude to Jacob seemed to be simply tolerance. This family wanted to believe these accusations because to believe such things is a vindication of others.

Jacob is not guilty of these accusations. I believe that to be so. Do I proclaim a 100% probability of innocence? That would be a foolish statement to make. There are, I think, only two people in this case who can claim 100% probability of guilt or innocence, Jacob and his accuser. I say I believe there are two who can claim 100%, but I have questions about memory. It is so difficult for me to believe that our memories can betray us so completely though. Yet I remember my stepson telling stories of things that happened when he was young, while my husband sat shaking his head in denial as my stepson related the memories. Whose recollections of the past were right? Oliver Sacks wrote in his book, SPEAK, MEMORY of his own false childhood memory. How does this educated man, a doctor, not recognize his own false memory? Those questions of memory as well as the accuser’s own testimony and statements plead the question, “Would a forensic exam of an accuser be warranted in a case where the case hinged on that person’s testimony?” Jacob’s attorney asked the police officer that question during his testimony. The answer: The accuser was too old; the cutoff age was either 13 or 14. Does this decision really rest on a number like age and not individual assessment? Of course the decision may come down to other reasons like the desire to believe the accuser or the cost of forensic exams. I ask this question not knowing whether this exam would have been helpful to Jacob’s case. I ask questions, because I believe every tool should be employed when we are making decisions about people’s lives and future.

Am I afraid that phrases and sentences could be taken from the entirety of this post to be used against me or infer I have doubts of Jacob’s innocence? That has already happened. In the first sentencing hearing, the prosecution brought up my Facebook and blog posts to the court which led to a rescheduling of the sentencing hearing so Jacob’s lawyer and the judge could read the pages of posts. Then at the second sentencing hearing, my ex-daughter-in-law, clutching a Bible, used phrases (attributed to me, his mother) from two of my posts to suggest guilt I had never suggested. Of course, we often use the words of others and mold them to our context. Her arrow wrapped in my words was aimed at me, yet I think it missed the mark. Those phrases she used out of context had already been read in context by the judge at the behest of the prosecution and those parties that had first brought the posts to the assistant district attorney’s attention. So why did the ex-daughter-in-law carry that Bible? Perhaps it was to remind us of that September 2014 evening when she arrived with the Swissvale police (though not the detectives from Jacob’s case that she had threatened to bring) at Jacob’s house to collect her father’s family Bible. That incident was another silly and inane charade of this woman. We returned the Bible at my urging, actually not even affected by the presence of her police escort. I am sure she would not believe my statement, and I would wager (probability) that she felt she had won some victory with her show of power. This incident strengthened my belief that this was a family with an overwhelming need to feel some type of vindication and moral victory by using the legal system as a club over those who offend them. Jacob’s mother-in-law explained her husband’s telephone threats against Jacob to me by saying he meant he would use the legal system. At the time, I disbelieved her explanation; now I accept that is absolutely what he meant. Is that why this family likes to brag about their family connections to lawyers, judges, magistrates and police? Do they feel like the fix is in? Is it a threat? Here though is another legal avenue Jacob’s ex-wife might have used to get that Bible: negotiation through divorce lawyers. There was other disputed property. Yet negotiation would not have allowed her to put on that show of arriving with police cars. It would not have allowed her to feel powerful and in control of the situation. She could not have pointed to police and said their presence demonstrated the legitimacy of her actions. Finally, though negotiation is about give and take; and this woman was not into giving.

So was the Bible a message about that September evening? Was it employed to send a message of control and power? Was it to signify something she wanted the court to believe about her motivations and intent? I think of props as a punctuation point to some characteristic. A Bible or prayer book might be employed to signify honesty, piety and to say ‘I am a person of Christian values’. I also had a prop, my notebook. I was not allowed to use my phone which I normally use to record notes, questions, musings, and word phrasings that pop into my head. So, it was to the pen and paper I turned. What was I projecting with this prop? I was sharing that my memory is not 100%, and I rely on notes to reinforce memory. This is a tool I have used for years at home and work. I was suggesting a possible intent to write something from those notes. Now I return to the answer to that very first question of the previous paragraph. Yes. My words could be twisted, perverted, corrupted, distorted, or manipulated; yet I do not worry or feel afraid of that possibility. I cannot protect myself from all bad things–worry is futile. Eve Ensler suggests in INSECURE AT LAST that we can never really be secure, although we spend billions to establish some sense of security. So, these words of FDR’s first inaugural speech are the ones I choose to live by: … the only thing we have to fear is…fear itself. In context, those words were encouragement to Americans in the midst of the Great Depression. In my context they are words to live by, because my life is too short for anything else.

I state that I cannot profess a 100% probability of innocence, because we must accept there is error in human calculation. I have no sample pool to even judge a probability for the events. Still, I will tell you how I arrived at my belief in his innocence. You might assume that I believe in Jacob’s innocence because I am his mother or because he tells me he is innocent. Those are two primary factors in my belief in Jacob; they are enough for me to stand beside him always. You should also ask yourself though why so many of Jacob’s friends believe in his innocence. My belief is based on more than a mother’s love or a son’s proclamation of innocence. My belief was reached in the context of Jacob’s disastrous marriage, the actions and behaviors of the players in his ex-family, Jacob’s witnesses on the night of that first reported event (witnesses that bring us as close as possible to 100% improbability of the truthfulness of the accuser’s testimony of that event), the actions and inactions of the police, the repeated questioning and the leading questions of the mother, the time lapse between the first disclosure to the mother and eventual statement to the police, the bragging statements of the ex-family of their political favor and influence within the police and judicial system of Allegheny County, my knowledge that the ex-family tried to use that influence to force the district attorney to make a plea agreement and the nagging thoughts that other attempts to influence may have been used (influence and favor-things that are secretive and so often remain hidden in the bowels of organizations), and finally that hindsight- bolt-of-lightning perspective of events that happened in the years, months, weeks, days and hours preceding and leading up to Jacob’s arrest. So many events that seem to portray a wife who wanted to alienate Jacob from friends and family, denigrate him to others with the ultimate destruction of his life. The only question about this last statement is: Why?

Jacob is one of the innocently convicted. How can we calculate the probabilities of just how many innocent people sit in our jails and prisons? This is from a blog post by Virginia Hughes found at http://phenomena.nationalgeographic.com/2014/04/28/how-many-people-are-wrongly-convicted-researchers-do-the-math/. She writes that in 2006 Justice Anthony Scalia gave a statistic of 0.027 approximate error in convictions, a very low probability. She informs the reader of the source and calculation of this statistic as well as possible errors in the calculation. That is the point where I had originally started to think about how to calculate such probabilities and error rates. Who is in the sample? We have the certainty of those who have been exonerated, but who is used then to establish proportions in the whole inmate population? Should we calculate probabilities by specific crimes? Should we also add in the variables of race, gender, age, economic status, education, domicile, or state of conviction? Most of the actual exonerations have been people convicted of murder and rape. What about other crimes incurring shorter sentences? Are there advocates working on those cases? I think that it is most likely people like me, mothers, fathers, wives, husbands and friends who advocate for them. It takes time and money to fight for exoneration, and the climb is exceedingly steep. The climb to prove innocence once charged is steep, but the climb to exoneration is almost insurmountable for ordinary people. Still, the concerted efforts and investment of innocence projects is best spent on those inmates serving life sentences with a priority on death row inmates. Who can blame that perspective? An initiative to save lives or give back a life to inmates who have spent years in prison is in the whole more important than concerns about the quality of life once released for those wrongfully convicted of lesser crimes. For those convicted of lesser crimes, that qualification might be difficult to accept. Despite our platitudes of saying the goal of prison and rehabilitation programs is to return the convict to society as a useful member, the penal and parole system places obstacles in that path as does society who limits the jobs that convicts can get. For such crimes as Jacob was charged with committing, his restitution to society is lifetime. The ex-family wanted a longer sentence, yet he received a lifetime sentence. As always up pops the ex-wife’s comment about bringing back the guillotine, a comment she made as we passed the Allegheny County Jail years ago. Why did that comment imprint on my brain? Perhaps it was because I believed she meant it, and that horrified me.

Let’s get back to the difficulties I perceive in statistical calculations of the wrongfully convicted. Who should be a part of the sample pool? I thought of the number of convicts who accepted plea agreements as the expedient and realistic path to returning to their lives. Some of these may be innocent, but they acquiesced to this system of plea agreements. A plea agreement is an acceptance of responsibility for something, and no one will listen to any statements of innocence once that deal is made. Legally, that person is guilty and cannot be considered in the sample pool. Still, we might do calculations on just plea agreements; how many who pled are innocent? In my visit with Jacob last Friday night, he repeated a statement by his previous ‘cellie’. This man told Jacob he had never committed any of the crimes for which he served time. Was he trying to say he was an innocent man? No, he was saying that in every instance he had accepted a plea agreement. He was sentenced and serving time for crimes he had never actually committed. This is a very quirky thing to consider about our justice system and it’s deals.

You may not accept that Jacob is innocent because I say he is, yet you may think I raise some valid questions. You should at least consider the possibility that Jacob’s proclamation of his innocence is true. If that is possible in Jacob’s case, then what of others? How many others? Are you afraid to think about it? Do you think it is possible that this could happen to you or someone you know? In Ms. Hughes blog post, she reminds the reader of the words of William Blackstone written in the 1700s, “It is better that ten guilty escape than that one innocent suffer.” (http://www.brainyquote.com/search_results.html?q=It+is+better+that+ten+guilty) Do you agree with this statement or would you say that it is the opposite–it is better that ten innocent persons suffer than that one guilty person escape? Is Blackstone’s statement too idealistic? Would you agree with Blackstone’s statement but qualify the statement by separating by the types of crimes committed? Should we just accept that some innocent people must pay the price of justice system errors? When I read Blackstone’s statement again, I thought of rationalization. I thought of Ford Motor Company’s rationalization in the decision to produce and sell the defective Ford Pinto in the 1970’s. Ford knew that there was a risk of the car catching on fire in rear-end collisions. That risk meant possible injury and death to drivers and passengers ( http://www.motherjones.com/politics/1977/09/pinto-madness). Yet Ford compared the cost of compensation to victims of collisions to the overall cost of correcting the design and delaying the production. They chose money over people. A common theme of articles I read about exonerations of the wrongfully convicted is the denial of the attorneys and police involved in those prosecutions to accept responsibility for errors and wrongdoing. I wonder if that denial of responsibility is just the refusal to accept the fallibility of the judicial system or the fear that acceptance of responsibility may result in claims for compensation or the possible costs of judicial reform? Is it money over people?

I wonder each time I write what differences I can make in this system. Is my support of my son, his girlfriend, my grandson, my volunteering at Book’Em enough? What more should I do? I do not want to just tell you what is wrong; I want to offer something more. I read posts, articles, and comments of various organizations searching for the people who have ideas about solutions.

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