THE BIG LIE

Many people have seen on TV in a cop show the ubiquitous use of the polygraph (a/k/a “lie detector”)  Most people may well believe in the efficacy and accuracy of the polygraph with respect to “lie detection.”  Nothing could be further from the truth, and the examiners and other “experts” know it.

I spent 38 years in the practice of law in a rural area.  For the first 13 years or so I practiced the defense of the criminally accused.  Early in my career I allowed two of my clients to be examined on polygraph at the Va. State Police Division Headquarters.  (I will never do such a thing again.)

The polygraph (I refuse to label it a “lie detector” since that is a patently false label) graphically measures on a moving paper graph the fluctuations in the subject’s breathing, heart rate, and galvanic (sweat) reaction on the fingers.  The assertion accepted by most is that a change in these reactions from a previously laid-down “control” image is indicative of stress caused by dishonesty.  So, the person examining the alleged graphic display of stress then pronounces that such stress is most likely due to dishonesty.

The results of a polygraph exam are usually not admissible in court absent the concurrence of the accused.  However, once such concurrence is obtained (rarely), the examiner (usually having no more than a high-school education) is allowed to opine, under oath, that the machine has shown “undue” or “unusual” stress, thus indicating the accused is not being truthful.  This is the core of the “Big Lie.”

The sensors usually connected to the polygraph are: (1) a chest belt, which measures both the breathing rate and the size of the breaths taken; (2) a blood pressure cuff to measure heart rate; and (3) a sensor that wraps around a couple of fingers and purportedly measures the level of perspiration on the fingers, then translating that to a galvanic reaction that transmits voltage.  These sensors are, in turn, connected to a device that translates the physical input from the sensors into pulsing pens scribing waves onto the moving paper graph.  As the paper moves under the pens, the pulses from the sensors cause the pens to wipe back and forth across the moving graph paper, thus producing a graph showing the three inputs as “squiggles” on the paper.  The examiner then looks at the pattern of the graphs and draws (or states) conclusions about the honesty of the subject.  Under prevailing polygraph theory, a display of “undue” subject stress on the graph indicates a lack of subject truthfulness, according to most examiners.

I recall the polygraph exam back in the mid-1970‘s of one young girl whom I represented and who was accused of theft.  She was thus examined at State Police Headquarters in Culpeper.  The examiner, a State Police officer, declared that the child was being untruthful.  I asked to see the graph and to have pointed out to me the point showing my client’s dishonesty.  The examiner pointed to an area on the graph that, to my eyes, displayed almost NOTHING--no apparent change in the graphic waves being laid down.  Despite my expressed skepticism, the examiner, however, INSISTED she was being untruthful.

So, being naïve and inexperienced in such matters, I came to believe that my client was being dishonest.  The examiner was firm in his conclusion and thereby greatly influenced my own thinking.  I owe my client an apology, some 40 years later!  That examiner had no business at all drawing such a conclusion.  I am now convinced that he willfully and deliberately and dishonestly attempted to shore up the charges against my client by drawing a conclusion that was obviously at odds with what was shown on the graph.  I am ashamed that I fell for it.

Most examiners have no business opining about stress and the signs of it.  Most have no college degree and therefore no advanced education enabling them to comprehend physiological manifestations of stress.  And, most examiners have no business opining about the connection between purportedly observed stress changes and truthfulness.  They are drawing ultimate conclusions (and being allowed to state them under oath or by and with the authority of their public position), thereby dishonestly influencing the conclusions of others and the resultant outcomes.

There is absolutely no reliable basis for a subjective, uneducated conclusion that a particular squiggle on a piece of paper is evidence of dishonesty.  NO ONE is qualified to draw such absurd, fabricated conclusions!  Yet both the CIA and the FBI are still permitted to use polygraph exams of employees to ferret out alleged spies and end careers.  That is insane.

No one should ever submit to a polygraph exam for any reason whatsoever.  No one should ever sign an employment agreement (which the courts routinely and blindly enforce) that permits the employer to condition a hiring based on the employee’s unconditional and unlimited willingness to submit to such nonsense.

It is way past time for the US Supreme Court and the Congress to outlaw any use of the polygraph for any reason whatsoever.  That this issue has been ignored for so long is conclusive evidence of the intellectual corruption of those who are sworn to protect our civil liberties.

LOVING vs. VIRGINIA & GAY MARRIAGE

(Based upon a letter to the Editor of the Richmond Times-Dispatch, 5/22/15)

In late May 2015, Markus Schmidt published in the Richmond Times-Dispatch an interesting article about the famous 1966 Supreme Court case, LOVING vs. VIRGINIA and its possible impact on the gay marriage case currently pending before the US Supreme Court.  LOVING thankfully outlawed Virginia's legal hostility toward interracial marriage. So, ”activist" federal judges had to do what the State of Virginia and many other mostly Southern states had stupidly refused to do: recognize the "basic civil right" to marriage as recited by US Supreme Court Chief Justice Earl Warren. OF COURSE, judges "make law" when they rule in such fashion.  That is the proper function of a separate and equal judicial branch of government.  Meanwhile, the legislative branch does not always get to do whatever it wishes, not even a democratically elected one!  

The State of Virginia bans not only religious gay marriage but also civil gay marriage.  The current litigation involves only the bans against civil (non-religious) gay marriage.  Yet, even religious marriages must be sanctioned by state law, with civil licensure and certification requirements.  Many so-called “conservatives” still believe the 10th Amendment is a "states' rights" blank-check empowerment of the states as against Congress, but that is not so. The delegates to the federal Constitutional Convention were not authorized to empower the states. Those other powers are only RESERVED, NOT GRANTED to the states.  Therefore, the 10th Amendment operates only as  a restraint against unlimited federal powers. One must look to the applicable state constitutions that empower or limit the states as thus recited; but for state constitutions, a particular state government would not even legally exist nor have any power to act at all.

The proper query here is whether or not a state government has a specific power to prevent the creation of private civil relationships between consenting, unrelated adults.  Few would likely tolerate government prohibition of religious marital liturgies, so why tolerate government prohibition of civil gay marriages?  Under the 14th Amendment, the US Constitution (the "Supreme Law of the Land") recognizes our basic civil right to equal protection of the laws, over and above the whims and prejudices of elected legislators.  This means that gays have exactly the same rights and liberties as straights.  No more, no less.  No American government, not even a democracy, may pass laws against that rule absent some "compelling" reason.  Mere preservation of vague, subjective, religious "traditions" reflected by someone's mere opinion is not compelling under any constitutional measure.  The US may well be a "Christian Nation" in the eyes of many but, to be fair, our governments should be firmly secular at all times.

It is my fervent hope that the US Supreme Court will view this issue through the correct end of the "constitutional telescope" and clearly enunciate vigorous limits on such state powers rather than squirm to find yet another discrete right.

ARE CORPORATIONS "PEOPLE"?

Two Supreme Court cases fairly recently decided have raised the ire of many folks who deplore the apparent pro-conservative, pro-corporation bias on the Court.  CITIZENS UNITED vs. FEDERAL ELECTION COMMISSION ("CITIZENS UNITED") and BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, et al, vs. HOBBY LOBBY  STORES, INC., et al  ("HOBBY LOBBY") both seem to hold that corporations have such clear human characteristics that they should enjoy unlimited freedom of speech (CITIZENS UNITED) and also reflect the personal religious and moral principles of the majority stockholders (HOBBY LOBBY).  I think CITIZENS UNITED is a valid interpretation of the First Amendment's ban on suppression of speech.  I do not agree that shareholders may have the closely-held corporations they mostly own reflect their moral or religious doctrines, as seemingly provided under HOBBY LOBBY.

I did not find in either Opinion where the Supreme Court held that corporations are humans.  That is an obvious absurdity, yet it has become the shorthand complaint of those claiming "liberal" allegiances who oppose these outcomes.  That is a misleading representation of what the Court held in both cases, and only a careful reading of the Opinions can reveal the complex issues raised and decided.  Any attempt to simplify either Opinion is absurd.  There is no valid substitute for going to the source if one wishes to have an informed opinion about those cases.

CITIZENS UNITED:

Most opponents to recognition of First Amendment rights for corporations defiantly insist that "money is not speech."  They are understandably incensed that very wealthy and reactionary people can buy influence with their money via ads against arguably more "reasonable" liberal candidates.  However, I think this issue needs to be viewed for what it is: whether or not the First Amendment protects the toxic, deplorable, overwhelming "speech" and electioneering of the reactionary toads with too much money.  Regrettably, I think that is EXACTLY what the First Amendment protects.

This case arose when the "nonprofit" group, "Citizens United," wanted to produce a video highly critical of Hillary Clinton when she was running for the Democratic presidential nomination in 2008.  They wanted to show the video "on demand" on cable TV.  They failed to get a declaratory ruling that the First Amendment prohibited enforcement of Section 441b of the Bipartisan Campaign Reform Act of 2002 (BCRA) by the Federal Election Commission.  In oversimplification, that Section prohibited ads seeking a specific political outcome within 30 days of an election.  Citizens United, claiming that the First Amendment was intended precisely to protect political speech, first and foremost, appealed to the Supreme Court.

I said above "regrettably" because I agree with most critics of the CITIZENS UNITED decision that there is way too much evil money in politics.  I hate being out-spent, and I am certain that some legislators happily vote to please their well-heeled masters.  However, several issues arise: in Virginia, fewer that half of all registered voters have been showing up at the polls recently, so for me a much bigger issue is that the big money is simply not influencing nor corrupting their votes because they are not cast at all!  Those politicians who have eagerly gone after the big money are already predisposed to support and oppose the same issues as their wealthy benefactors, so I fail to see that any serious "corruption" is occurring.  No one can seriously assert that, "but for" those nasty contributions and videos, the outcomes would be any different; besides, if bribery is occurring, it should be prosecuted.  We already have laws outlawing bribery.  Political censorship is simply abhorrent to me.  I think the First Amendment was EXACTLY intended to protect ALL political "speech," including nasty videos.  Further, I think the First Amendment guarantees me the right to pool my money with others to get a bigger "speech" bang for my buck.  I think the First Amendment guarantees the right to be offended!

We cannot have one First Amendment for the "right" people of lesser means and a more restrictive First Amendment for the evil, wealthy reactionaries.  That is stupid.  And, I certainly don't want some unelected bureaucracy (the FEC) deciding what speech is permitted and what isn't, as the CITIZENS UNITED Opinion clearly addresses.  The answer to offensive "speech" is more "speech," not government censorship.  It is amazing, even frightening, that so many self-described "liberals" are so comfortable with the notion of censorship of people and organizations they don't like.  All they can focus on is the fact they are being outspent, but they want their politics for free, and the big money deprives them of that

Finally, they have also utterly failed to show any connection between the "evil money" and political outcomes.  It is ASSUMED that such money influences voting patterns, but no such evidence has been produced.  Consider all the nasty money thrown at Barack Obama in both 2008 and 2012, yet he handily won election both times.  To be sure, he had his own big money, but to use that as a justifier, it means that one must conclude that he corrupted more "for" votes than did the other side!

HOBBY LOBBY:

Justice Alito's opinion starts out making it clear that they are ruling only in the cases of closely held corporations, where the objecting owners own or control most if not all of the stock.  He says that Congress, in adopting the Religious Freedom Restoration Act ("RFRA"), did not intend to deprive business owners of protection of their moral principles if they choose to put their business into a corporate form of existence.

In the HOBBY LOBBY case, the objecting husband-&-wife owners owned all the stock.  They objected to being required by HHS to provide medical insurance inclusive of birth control benefits for corporate employees as a violation of their sincere religious beliefs that life begins at conception, so to be forced to provide such medical insurance would violate their protections under RFRA.

One of the core principles we learned in law school is that a corporation's provision of limited liability turns on maintaining the "separateness" of the corporation from the investor individuals, such that only the shareholder's investment is at risk, rather than the risk of unlimited personal liability.  We were further taught that this principle remains the same regardless of the size of the corporation, and that the owner shareholders should not treat the corporation as their "alter ego," subject to the risk that the corporate creditors might "pierce the corporate veil" and reach those shareholders personally, the very thing use of the corporate form of business was intended to prevent.  That "alter ego" risk is much greater with closely-held corporations than, say, large publicly-traded corporations.

Now comes along the US Supreme Court doing violation to the core principle of "separateness" of corporation and owner by imputing the owners' personal moral and religious beliefs upon the employment policies of the corporation.  I could not find any discussion of this issue in the HOBBY LOBBY opinion, if only to dismiss such concerns.  It appears that the entire United States Supreme Court has blundered into destruction of a core principle of corporate law in its zeal to assert religionist attitudes about healthcare.

I think this decision is absurd.  There should NEVER be any identification between a corporation and the owner shareholders thereof.  The US Supreme Court seems unconcerned.

That is my take on these two very complex decisions.

MONUMENTAL (Poem)

© 5/26/07, 4/15/15.

Black Granite Hole in the ground;

Bomber wing of shame, plunged to Earth, imbedded.

Etched names and hollow, piercing spirit eyes, searing lasers, following me.

Yet I return, time and again, to that wall of wasted lives.

Ceaseless weeping, yet naming not those names.

Anger boils inside me, laser-fired,

Undeclared war.  BULLSHIT!

Par for the course; our gutless Congress

Making the world ever safe for duh-mock-racy.

Déjà vu, all over again.

Wah!  We, the People, not fairly represented, 

Yet thus we choose as we mostly do not vote.

Elders, snugly cushioned in their upholstery, 

Sending innocent patriots to bloody slaughter.

Dulce et decorum est!

Par, indeed, for the course.

SUPPORT THE TROOPS!

Fight ‘em here or fight ‘em there!

If already here, kill ‘em anyway!

For Dog and Country.

I hate the smell of inevitable sorrow in the morning.

PLEASE! SAVE ME FROM MYSELF!

There are three horrible "save-me-from-myself" measures always being promoted, and I don't like any of them:

TERM LIMITS:

I am opposed to "term limits"!  We already have "term limits" anyway!  They are called "elections," and one can do his or her part to enforce such "term limits" as he or she may wish!  I no longer vote any party line.  Instead, I am doing my best to vote every worthless incumbent out of office, REGARDLESS of party!  We don't need some law to deprive me of my desire to keep sending the same son-of-a-bitch back into office again and again if that is what I want to do.  "Term limits" are not about getting rid of MY asshole; I am perfectly fine with MY asshole; otherwise, I would not keep voting for him!  Instead they are about getting rid of YOUR asshole, whom I despise!  Dave Brat's Virginia voters like him a lot; otherwise they would not have elected him!  They despise California's Nancy Pelosi and want to get rid of her, but her voters like her just fine!  It's Dave Brat they want to get rid of!  Sheesh!

BALANCED-BUDGET CONSTITUTIONAL AMENDMENT:

The proposed "balanced-budget" amendment to the Constitution is utterly absurd.  I understand there is already a federal statute requiring a balanced budget, so why would the Congress likely obey the Constitution more than a statute?  Most of them don't care about the Constitution now!  What if the Congress were to not pass a "balanced budget"?  Would such a constitutional violation have to be remedied by the courts, as per usual?  Would we ultimately have as few as five justices on the US Supreme Court acting in the place of a recalcitrant Congress in order to balance the budget?  Anyway, the "budget" is not where the rubber meets the road!  Congress often APPROPRIATES more money than what is "budgeted" and certainly spends more!  Total crap!  Just DO IT!

CAMPAIGN FINANCE "REFORM":

I also don't like campaign finance "reform."  I don't trust anything using the words "children," "bipartisan" or "reform."  We will get the money out of prostitution quicker than out of politics!  I do not want the government prohibiting me or anyone else from spending as much money as I wish, or combining my money with others, to call whomever a "goddamned lying son-of-a-bitch" right before the election if I so choose.  Money may not BE "speech," but it buys a helluva megaphone!  I realize that there are too many politicians taking too much money from the "wrong" people, but that is considerably aggravated by most people not bothering to vote!  How can we rant and rave about the alleged corruption of the "system" when only 40% of Virginia registered voters bothered to get off their skanky butts and go vote in the 2014 federal elections, or the 43% who bothered to vote in 2013's Virginia "goober-natorial" election?  What were the worthless rest of the registered voters doing on Election Day?  We already have criminal laws prohibiting bribery, and that is what we are really talking about, so let the bribery laws be enforced--or not!  We don't need more laws creating more power for a government that is already drunk with power!  We certainly don't need to adopt laws that empower the unelected Federal Election Commission to decide what political "speech" is permissible!  We have had multiple campaign "reform" laws passed since Watergate, yet the do-gooders clamor for more because NONE of the nonsense already passed is working as they expected!  Every time some law is passed, we are told boastfully that things are gonna work right THIS time, then along come some smart lawyers, and they figure out a way around whatever was passed!  Again and again and again!  It's like General Motors' repeated promises to build cars right THIS time, or Lucy promising Charlie Brown to not yank the football away as he runs up to kick it!  EVERY FALL!  Duh! 

Meanwhile, the "po' widdle" nonvoters sulk and whine about having no voice and no choice while they munch on Chee-tos in front of the TV on Election Day.