Thursday, 28 April 2016

Year of the Whale

Note: Below I use $69.99 for 50 packs to determine the price of things. It turns out it's $69.99 for 60 packs. Multiplying by 5/6 is left as an exercise to the reader.

Right now I'm playing quite a few free-to-play player vs players games. All of them are examples of games where you have you choice of slowly grinding up the things you want or of opening up the wallet as a shortcut. Hearthstone lets you simply spend money to buy all the cards. Gems of War lets you spend money to get gems and gold to upgrade all your kingdoms, get all the troops, ascend all the troops. Magic Duels lets you spend money to get all the cards. Heroes of the Storm lets you buy all the heroes.

In a game like Candy Crush, the business model is that they expect the vast majority to pay nothing, a few people to pay them a couple dollars here and there, and a very small number of people to spend money like water, buying extra turns whenever they don't win a level, buying boosters all the time, buying extra lives. You can find online stories of people spending hundreds of dollars a week or several hundred dollars in one day. So the business model is to hunt whales. Find people who use the game as a crutch to deal with intolerable emotions and bleed them dry.

These free-to-play PvP games like Hearthstone are a little different. You can't keep spending $100 a week on Heartstone forever, eventually you'll just have all the cards. All the other games I mentioned above work similarly. There's an amount of money to spend and then you are done until new content comes out. How much money could they made off a real whale?

First there was the journey of coming up the with probability of opening any given card. The hearthstone wiki has a page of stats on opening packs with some observed numbers that obviously aren't right but are pretty close given that they represent almost 28,000 packs. I wanted to see if I could come up with some numbers that made sense - numbers a human being would actually create rather than arbitrary-looking percentages with 2 significant figures.

It tried rounding the values given to the nearly percent and half percent, but that was giving me p-values like ten to the negative sixteen for the actual results occurring. When I code, I often choose between things in programs by assigning each thing a frequency, then adding up the frequencies of whatever is available and making a weighted random selection. I tried that and got close to the observed probabilities using frequencies of 65, 21, 4, and 1 for commons, rares, epics and legendaries. But it wasn't close enough. The odds of getting the observed results with these figures were still less than 1%.

But I thought about the fact that one card is always rare or better. So what if we used that same method - assigning frequencies to each and adding them to figure out what I'm rolling out of - but this time I made four-fifths of the cards have a possibility of being common and one fifth simply ignoring the chance of common. The frequencies I settled on were 223, 21, 4 and 1. That means that four cards in your pack have almost a 90% chance each of being common, but one card in your pack has an almost 4% chance of being legendary. It turns out that the observed results have a probability of almost 30% using these numbers, which makes me think there is a reasonable chance this is the actual algorithm. Of course none of this really mattered because the overall point was to get something that gave me almost exactly the observed values, so I just used those.

After that entertaining activity, the next thing I needed was the number of cards. For now let's look at standard. Using a card database I got 307 commons, 177 rares, 94 epics, and 84 legendaries. If that sounds like a lot of legendaries you might not be aware that there are almost as many different legendaries as epics. But since you only need one of each legendary and two of each epic, it's not that close when collecting.

Coming up with a closed form equation to compute the number of packs needed wasn't going to happen, so I figured I'd start building a big table. It was very obvious that if your goal was to get every card then you were going to have all the commons, rares and epics and be disenchanting the extras before you found all the legendaries. Knowing this, I chose to ignore the actual distribution of those cards, figuring you'll get two of each by the time you are done and all extras would be put into legendary making. I'll come back to this hypothesis later.

So it's as simple as counting the commons, rares and epics gained from packs, subtracting twice the number of different commons, rares and epics, converting the rest into dust. Then taking the number of legendaries earned, calculating the average number of different legendaries that will give, disenchanting the duplicates and seeing if the total dust from all cards is greater than 1600 times the remaining number of legendaries to find. Looking at increments of 50 packs, you cross that threshold at 1200 packs opened when you've got about 65,300 dust and only 39 legendaries unaccounted for - 62400 dust.

Going back to the idea that by this point you'll surely have found all the non-legendaries, with 1200 packs, it turns out that you will average 14 of each common, 7.7 of each rare and just 2.7 of each epic. That means, for any given card, your chance of not having two is about 6 in ten thousand if it's common, 2% if it's rare and 32% if it's epic. The chance of not having any of a particular card is virtually none, 0.7% and 14.1% respectively.

So you'll have all the commons, but you can probably expect that you'll need to craft 4.7 rares and 43.1 epics. Now each of these represents an extra duplicate to disenchant as well, so crafting a rare costs 80 and an epic costs 300. That's still 12956 extra dust. Better open some more packs.

At 1250 it's really close. Presumably you get there or don't based on luck. At 1300 you look pretty safe.

Of course this is all dependent on whether or not you actually get the expected different legendaries from the packs. There is a decent amount of variance on that random variable. Still, given that a pack is worth an average of about 100 dust, if you are a few legendaries short you won't have to buy too many more sets of 50 packs to top yourself up.

Buying 1300 packs from the store costs USD $1,819.74.

If you wanted all cards so you could play Wild, you are looking at USD $2,239.68 to buy 1600 packs, more or less.

But what if you are a real whale and you want golden everything? One thing is that legendaries are no longer the stumbling block. Golden commons are much more rare relative to commons than golden legendaries are relative to legendaries. As a result, if you do a calculation like he one I did above, by the time you have enough dust to finish off all the legendaries, you won't possibly have all your commons, rares or epics yet. At that point it's all just a dust-fest, though, so that numbers are pretty easy. It turns out the number for a full set of every card in gold is probably around 6400 packs, nearly USD $9,000.

So that's the size of a hearthstone whale. If you've got ten grand to blow on the game then you can completely circumvent the grinding process. For just around $1800 you can functionally circumvent grinding, technically leaving yourself additional room to collect. $1800 is more than a third of a year paying $100 a week, so I think that rivals Candy Crush for whale fishing.

I'm in the middle of doing this math for some other games too, but it's pretty cumbersome, especially for games that have multiple different vectors for advancement.

Wednesday, 27 April 2016

Freedom of Speech

Recently in Germany a couple of medium- to high-profile people have been arrested for insulting the president of Turkey. That has raised some eyebrows in the English-speaking world. "How," we Anglos think to ourselves, "Could a progressive, modern country like Germany be so bad on free speech?" Freedom of speech, as we know, is the bedrock protection against tyranny. We disagree with one another but defend to the death each other's right to be wrong.

Germany is hardly the worst country on free speech. Elsewhere in the world we have nations where a person can be assassinated for speaking ill of the president without even so much as a trial.

"Elsewhere in the world", here, is a phrase meaning, "In the United States of America."

Because when your president has a list of people to be killed by drone strike if their location can be identified, when there is no judicial oversight of that list, and when a citizen of your nation *has actually been killed* in this manner with the explanation being: "He was a terrorist" or "It was necessary for national security"; you live in a country where your government can kill you for what you say, or what you do, or what you are wearing. The first amendment may prevent the government from passing a law against saying what you want, but it sure doesn't saying anything about arbitrary execution.

According to the American ideal of free speech, it is no defense to say, "Well, don't worry, Obama isn't going to have you killed if you support the Republicans." Because if the dont-worry defense worked, then what is the point of the first amendment? Why are such stringent defenses of free speech necessary? Why not just not worry?

Some say that in order to protect my right to say how I feel about free speech and presumption of innocence, I have to defend the right of a racist to call for a ban on people from the country based on their ethnicity, or of a misogynist to spout hate on Twitter. That's complete nonsense.

First of all, freedom of speech is neither necessary nor sufficient to acheive political change. Martin Luther King exercised his freedom of speech in 1963 to tell us about his dream and fifty years later it isn't half realized. Nelson Mandela went to prison for things that would have been protected free expression under current US law, but he is credited to being a major part of the revolution against the racist South African government despite being incarcerated.

Secondly, there is this moral relativism to that claim, like we can't tell what's right and what's wrong. If we enter into philosophy-class thinking then maybe we can't tell the difference between a racist society that outlaws anti-racist speech and a non-racist society that outlaws racist speech. In reality there is such a thing as knowing better. At any given time you might be wrong about what's right, most people might be wrong about what's right or even everyone might be wrong about what's right. The solution isn't to throw up our hands and say we can't know anything; to say we must defend stabbing each other to death if we defend cutting vegetables because both are the free use of knives.

The first amendment of the US constitution is not just ineffective at preventing tyranny, it is actively hastening America's descent into being a police state. It is the basis of Citizens United, a ruling that basically says that government isn't even allowed to control how elections are financed, because corporations spending money is freedom of expression. It isn't helping, it is hurting.

That a lousy government could pass lousy laws is doubtless, and we need look no further than the world's bastion of free speech to see that. I also think individual rights are a good thing. Freedom of speech is a good rule to follow in general, and those crazy Europeans who don't follow it absolutely are mostly signatories to the UN declaration of human rights which includes free speech.

But we all know that every right has to be balanced against responsibility. Despite free speech it is illegal to say, "I'd pay $100,000 to anyone who could deliver <person X>'s severed head to me." So why be incredulous that, for example, France would have a law against something as odious as denying the holocaust?

The first amendment of the US constitution, to most of the world, is a good example of how every complex problem has an answer which is simple, obvious and wrong. You can't stop bad governments from doing bad things by writing laws that say they can't do those things. The way to stop bad governments from doing bad things is to live in a soceity based on trust and joint responsibility so you don't end up with a government that wallows in the worst thing that is allowed; a society that would never re-elect a government that broke public trust instead of expecting - and thus preemptively forgiving - such violations.

As for Ergodan, he appears to deserve the ridicule he gets, and the point being made by Germans by insulting him is not being lost. Merkel has already promised to review the law under which they are being charged. Not because free speech is an absolute principle, but because it's a stupid law.

Monday, 25 April 2016

Presumed Innocent

A cornerstone of our criminal justice system is that you are presumed innocent, and the Crown must prove you committed a crime beyond a reasonable doubt before you can be punished. It is better to let one hundred guilty people go free than to send one guilty person to prison.

Well, that is if you are the right kind of person.

The reality for most people who encounter the justice system is that they are presumed guilty from the moment the police begin the investigation right through sentencing. If you are black or indigenous you are presumed guilty. If you are poor you are presumed guilty. If you are poorly educated you are presumed guilty. If you have a developmental disability you are presumed guilty. If you are a woman who says a man sexually assaulted her then you are presumed guilty of perjury.

Who is presumed innocent? Jian Ghomeshi is. Bill Cosby is. Nigel Wright is. George Zimmerman is. The RCMP officers who shocked Robert Dziekanski to death are. Police who kill young black men are.

A lot of people say presumption of innocence is important because "the state" would otherwise abuse its power to lay spurious charges against political enemies. Go ask all the 200-some people who went to prison for killing children on the evidence of Ontario's doctor Charles Smith over a 20 year period what happens when the "the state" comes down on you. Go ask them how much the presumption of evidence is worth.

To defend the idea that presumption of innocence is necessary to protect us from the state, you have to defend the idea of a state that would lock up its political enemies if the rules allow it to but that would recoil in shock and the idea of fabricating evidence, or charging you with crimes completely unrelated to what they are really upset about, or putting you on an extrajudicial kill list to be taken out by drones. You have to defend the idea that by getting into a Red Queen race against the justice system, the individual will somehow be empowered rather than swallowed.

Presumption of innocence isn't going to change, and I'm not advocating that we change it. It would be too hard and too disruptive. What I am saying is that it is stupid, it doesn't actually do any of the good things that we pretend it does, and it is just an excuse for giving the wealthy immunity from criminal prosecution. I don't think we can change it, I just don't want to hear it talked up like it's a good thing anymore. We ought to be ashamed of ourselves.

Friday, 22 April 2016

Mike Duffy Verdict

My last several posts were dedicated to excoriating Judge William Horkins for this ruing in the Jian Ghomeshi sexual assault case. It was a terrible ruling full of misogynist nonsense that put the burden of proof onto the victim of the crime instead of the prosecutor.

Today I'm here to talk about another court ruling, but this time I'm filled with glee. I wouldn't have told you even the day before yesterday that watching the Mike Duffy verdict come in could make me so excited. If I had been honest I think I would have had a preference for seeing him found guilty.

But watching that ruling be paraphrased on twitter feeds and live blogs, I was on the edge of my seat, waiting for the next bit of reasoning from Justice Charles Vaillancourt.

I love seeing powerful people get comeuppance, but what I love even more is when it is recognized that the system of rules itself is broken.

The charges against Duffy were dismissed for a few broad reasons. In some cases the prosecutor argued that Duffy had used senate travel opportunistically for personal gain. In some cases the argument was that Duffy had violated Senate rules and therefore had violated the public trust. In some cases the argument was that Duffy had lied about the reason for his trip.

Justice Vaillancourt found Mike Duffy to be a very credible witness, which negates the chance of being convicted on the lying counts. Where Mike Duffy was accused of violating the rules, the judge often pointed out that there simply were no rules to violate, and that Mike Duffy's admittedly questionable conduct was standard operation for senators and parliamentarians. As far as opportunism goes, the judge just said flatly it isn't criminal. Sure, deciding to take a business trip to coincide with the birth of your grandchild is clearly using the travel to your advantage, but if the business trip is legitimate, there's no wrongdoing.

One was left wondering how these charges ever made it to court. The argument that Duffy lied is one thing, but for many of them, it sounds like the case was that expense claims that were filed through the appropriate process and that never raised any flags somehow constituted fraud. The idea that a person would think they were committing a crime by filing papers that are never questioned is absurd.

When I first started looking at the Ghomeshi ruling I highlighted a particularly egregious section as the "crown jewel" of the ruling but later found out I had gotten wrong and there were even worse things to come. Despite not having read the entire Duffy ruling, I feel very confident that this is the single greatest paragraph:
[1035] The answers to the aforementioned questions are: YES; YES; YES; YES; YES; and YES!!!!!
That is a lot of exclamation points for a court ruling. I'm sure you are wondering, so here are the questions:

  • The email traffic that has been produced at this trial causes me to pause and ask myself, “Did I actually have the opportunity to see the inner workings of the PMO?”
  • Was Nigel Wright actually ordering senior members of the Senate around as if they were mere pawns on a chessboard?
  • Were those same senior members of the Senate meekly acquiescing to Mr. Wright’s orders?
  • Were those same senior members of the Senate robotically marching forth to recite their provided scripted lines?
  • Did Nigel Wright really direct a Senator to approach a senior member of an accounting firm that was conducting an independent audit of the Senate with the intention to either get a peek at the report or part of the report prior to its release to the appropriate Senate authorities or to influence that report in anyway?
  • Does the reading of these emails give the impression that Senator Duffy was going to do as he was told or face the consequences? 
The ruling comes as close as is safely allowable to saying that Nigel Wright, other staff of the Prime Minister's Office, senator David Tkachuk, and maybe even Stephen Harper ought to be charged instead of Mike Duffy. I consider it a defect in our legal system that the judge can't recommend charges be brought against these people, or even order that the trial continue against those people, giving them a chance to mount their own defense.

Normally pressing charges against a former chief of staff of a former prime minister might look like petty politics and would be blocked by the sitting government. But given the outcome of this ruling, I hope the idea of charging Nigel Wright or others from Harper's office is at least being considered. It sounds like the evidence from Duffy's trial is enough to convict them on influencing senators by bribery or threat.

Thursday, 7 April 2016

A Modest Proposal (for fixing sexual assault trials)

Judge William Horkins, Ghomeshi lawyer Marie Henein and about a million people on Twitter are very concerned about believing women who have been sexually assaulted. They basically equate the idea that we believe assault victims with the idea that the word of a woman would be law - any men accused would be presumed guilty and sentenced, possibly without even a trial. No one thinks that should be the case, these anti-belief advocates are arguing against phantoms.

Well, phantoms and me. I have a proposal for how to fix the current unacceptable state of sexual assault trials - believe women in the strong sense that men on Twitter fear. If a woman accuses a man of sexual assault, then he has to provide physical evidence he didn't do it, or he is guilty and sentenced under the criminal code.

Let's set aside the automatic reaction to this idea - for one I am obviously not serious, for another it is obviously unjust and terrible - and think about what that society would look like.

It's easy to say the prisons would be full of innocent men, that there would be no male-female relationships, and plenty of other hyperbole, but just because a complete perversion of justice has been introduced into a society doesn't mean that dogs will live with cats and hot snow will fall up. Men wouldn't give up on women - some of them would just assume bad things wouldn't happen to them, some would believe in the justness of their clearly unjust society, some would just care more about getting laid than about staying out of prison. Women wouldn't suddenly feel like it was okay to lie about being sexually assaulted or to put innocent men in prison for personal slights - and there would still be a slim chance of getting caught making a false accusation - so we wouldn't end up with a situation where 80% of men were in prison.

We sure would see a lot of differences, though.

Men would be understandably cautious about going out alone and being unaccounted for. Having someone know where you are means having an alibi for a false accusation.

Men would be understandably cautious about first dates and blind dates, always wanting to meet in public places so they know they can't be accused of anything until they develop enough trust in the person they are dating to risk something more intimate.

Men would be understandably cautious around strangers and around female anger - trying to make sure they never made any women so angry that those women might take revenge on them. Even though the majority of false accusations would almost certainly come from people known to the falsely accused, it would be very hard to trust strangers.

Presumably it would also drastically reduce the number of actual sexual assaults, since the chance of being convicted of one would go from 3% to 90%.

These changes in male behaviour wouldn't protect all men, though. As I said, women wouldn't suddenly think they should perjure themselves to send innocent men to prison, but clearly there would be a small number who would do that, and they would probably do it to quite a few men each because they think it's okay for them to do so. Some number of false accusations would come from misunderstandings, but quite a few would come from a small number of serial false accusers who are shielded by the law from having any of the men accused by them say, "She's done this to 14 other men, does anyone really believe that she's not making this up? Who is sexually assaulted by 15 different men?" That wouldn't be admissible, every man would have to prove his case himself.

By this point, it should be pretty obvious what I've done here: This imaginary society where women are believed - in the absence of strong evidence to contradict them - is just like our society, except instead of being raped it's victims get a two to three year prison sentence, and instead of women, it's men.

If anyone cares to argue that a two to three year prison sentence is worse than rape then they should probably do themselves a favour and keep that to themselves.

And before anyone points out all the other reasons this is bad, I can think of plenty. Like I would assume there would be a spike in the murder rate as many men probably prefer the possibility of being convicted of murder to the certainty of being convicted of sexual assault.

But on the other hand, as I said above, people who lived in such a society would think it was just, or at least a lot would, because people justify their own culture. And a culture that could produce such a law would be a very different culture indeed. Perhaps one where men just accept that they have a one in five chance of being put in prison for a fictitious sexual assault at some point in their lives and set up support groups rather than trying to kill all women to prevent it from happening to them. They might start advocacy groups saying we ought to listen to men who say they've been falsely accused, because a lot of men have, or pointing out that if we kept a database of accusations we could notice when one person was making a lot of them an investigate.

I don't think this speculative fiction society is actually any less just in its outcomes than our society is, even if it seems less principled in its rules.

Wednesday, 6 April 2016

u mad sexual assault victim?

Judge Horkins, in issuing the Ghomeshi ruling, took a real interest in how angry the complainants were. He used the word "animus" to describe their feelings towards him. In my first post about this ruling, I called paragraph 60 of the ruling the "crown jewel" but having not read the whole ruling, I should have stopped myself, because paragraph 136 absolutely takes the cake:
[136] Each complainant in this case engaged in conduct regarding Mr. Ghomeshi, after the fact, which seems out of harmony with the assaultive behaviour ascribed to him. In many instances, their conduct and comments were even inconsistent with the level of animus exhibited by each of them, both at the time and then years later. In a case that is entirely dependent on the reliability of their evidence standing alone, these are factors that cause me considerable difficulty when asked to accept their evidence at full value.
One sentence at a time.
 "Each complainant in this case engaged in conduct regarding Mr. Ghomeshi, after the fact, which seems out of harmony with the assaultive behaviour ascribed to him."
In plain language: "Each woman did things with Ghomeshi after the assault that I don't think a person who had been assaulted would do."

Yes, that's what it says. It says that Horkins knows how women who have been sexually assaulted by men behave, and that three women in his court didn't fit the bill. The women wrote Ghomeshi kind and even sexy emails. They kissed him. One of them even had consensual sexual contact with him after.

Anyone who thinks that the victim of a sexual assault would not do these things - anyone who thinks that these things call the veracity of testimony about assault into question - needs to resign as a judge right this minute. A judge who presides over sexual assault trials can be forgiven for not being a psychologist or a social worker, but they can't be forgiven for thinking they know how people who have assaulted behave when in fact they don't know shit and our culture has given the plenty of opportunities to figure out that they don't know shit.
"In many instances, their conduct and comments were even inconsistent with the level of animus exhibited by each of them."
In plain language: ?!?!?

What does that mean? As written it looks like he is saying their actions were inconsistent with their feelings. As a person who has no way to know their feelings aside from watching their actions, that makes no sense. If we think of "conduct and comments" as a callback to the previous sentence, then he's saying that a woman who wrote kind or sexual emails, or who kissed or had other sexual conduct with a man who assaulted her ought not be angry about the assault. Maybe she had it coming?

Is there some other way to read this that I'm missing? It could be read as merely stating that their conduct after the fact never gave Ghomeshi a clue as to how angry they were, but that would be completely irrelevant to the last sentence of the paragraph - you aren't legally required to tell someone you are angry at them before going to the police to report a crime they committed.

I'm trying to be charitable, but the only reading I can make sense of is a big "u mad bro?" aimed sexual assault victims. With that paragraph, Horkins isn't just saying that he thinks Ghomeshi ought to be acquitted because the evidence doesn't overcome reasonable doubt, he is saying that he believes Ghomeshi never assaulted these women. Otherwise, how could it be hard for him to understand them being angry? What level of anger is too much for a person who suddenly choked you while you were kissing, or who hit you or pulled your hair?
"In a case that is entirely dependent on the reliability of their evidence standing alone, these are factors that cause me considerable difficulty when asked to accept their evidence at full value."
In plain language: "In other parts of this ruling I stress that it is difficult to believe the witnesses because they contradict themselves and show a willingness to lie under oath. Just in case you were wondering, though, if they had been entirely forthcoming from the beginning, I'd still be acquitting Ghomeshi because of their conduct after the fact, even though I, as a judge, know that is totally irrelevant."

How else can I read this paragraph? He doesn't think their after-the-fact actions are congruent with people who have been assaulted. He doesn't think they should be so angry at Ghomeshi. He doesn't think they can be believed because of their anger, because of their after-the-fact actions. They lied because they thought if they told the truth no one would believe them. In paragraph 136 Horkins tells them they were right.

If there is a message to women out of the Ghomeshi verdict, it is definitely "do not come forward." But not just because it is hard to prosecute or because your life will be put on trial. Stay silent because all of the classic clich├ęs about how victims are judged in sexual assault cases can be trotted out in a sexual assault ruling, and every legal expert any mainstream media site can find will call the ruling principled and call the judge fair minded.

Monday, 4 April 2016

Possible Collusion

The more I read of the ruling in Jian Ghomeshi's recent trial the more there is to angry about. I am still of the opinion that Judge Horkins ruled the way the majority of judges would have in his seat, but I am less and less capable of blaming it all on a system of judges-each-alike and more and more pissed off with Horkins himself.

There is a section of the ruling titled "Possible Collusion," reproduced here with my annotations:
[107] S.D. said that her decision to come forward was inspired by others coming forward in 2014. She consumed the media reports and spoke to others for about six weeks after the “Ghomeshi Scandal” broke in the media. Although she initially testified that she and Ms. DeCoutere never discussed the details of her experience prior to her police interview, in cross-examination she admitted that in fact she had.
Saying one thing and then admitting something else tends to harm ones credibility, which is assessed elsewhere in the ruling. Let's recall this is in a section called "Possible Collusion" and so what is said here should be relevant to the possibility of collusion. Thus, I take it to mean that Horkins is saying that S.D. talking to DeCoutere before coming forward is somehow evidence of collusion when we already know by her own admission she was inspired to come forward by the stories of others.
[108] I am alert to the danger that some of this outside influence and information may have been imported into her own admittedly imprecise recollection of her experience with Mr. Ghomeshi.
Memory is a tricky thing, and psychological experiments have shown that false memories are awfully easy to acquire under the right conditions. Being aware that people misremember things is probably a good idea if you are a judge. On the other hand, I'd hazard to say that while details, times and dates get fuzzy, it is a rare person who sees someone in the news and suddenly misremembers that person sexually assaulting them. That aside, we remember once again that this is in a section on possible collusion, and so presumably it is being mentioned in relation to collusion, making the "imprecise recollection" thing a bit odd to begin with. Collusion is about intentionally working together with someone, not getting details of a hazy recollection wrong.
[109] The extreme dedication to bringing down Mr. Ghomeshi is evidenced vividly in the email correspondence between S.D. and Ms. DeCoutere. Between October 29, 2014 and September 2015, S.D. and Ms. DeCoutere exchanged approximately 5,000 messages. While this anger and this animus may simply reflect the legitimate feelings of victims of abuse, it also raises the need for the Court to proceed with caution. Ms. DeCoutere and S.D. considered themselves to be a “team” and the goal was to bring down Mr. Ghomeshi.
Let's try to follow the reasoning here. It makes sense for victims of assault to be very angry at the person who assaulted them, but if two victims of assault share their feelings of anger, that is also evidence that the Court needs to "proceed with caution." When identifying a risk, it is usually wise to answer the question "A risk of what?" One might proceed with caution along an icy ledge to avoid slipping. Here Horkins thinks he should proceed with caution, and the outcome of a failure to do so is left to the imagination of the reader.
[110] The team bond between Ms. DeCoutere and S.D. was strong. They discussed witnesses, court dates and meetings with the prosecution. They described their partnership as being “insta sisters”. They shared a publicist. They initially shared the same lawyer. They spoke of together building a “Jenga Tower” against Mr. Ghomeshi. They expressed their top priority in the crude vernacular that they sometimes employed, to “sink the prick,… ‘cause he’s a fucking piece of shit.”
DeCourtere and S.D. became friends. They really wanted Ghomeshi to be found guilty. We are still talking about collusion here, right? This section is legally contentless, and appears to exist only to lay out facts for future reference.

What is collusion? Here's the definition that pops up when you google the word:
secret or illegal cooperation or conspiracy, especially in order to cheat or deceive others. 
While we can quibble of the definition, I don't think we are going to get away from the fact that collusion is a negative word, it is a word about culpability. People who have colluded have done something wrong. If there is the possibility of collusion, there is the possibility that DeCoutere and S.D. did something wrong in the way they dealt with one another. What was this cooperation or conspiracy, how did it deceive or cheat others?

We'll never know. That is the end of the section entitled "Possible Collusion" and the word "collusion" does not appear again in the ruling. Those facts laid out in section 110 are never referred back to. Nor is there any further discussion about the relationship between S.D. and DeCoutere, and DeCoutere is not mentioned even one more time in the ruling from section 111 on. Since he never again mentions collusion or DeCoutere, he also does not refer back to this collusion in his conclusion. These sections basically just hang there on their own with no information from what came before and no effect on what came after.

These four sections are a judicial drive-by smear. Under the title "Possible Collusion" Horkins' reference to S.D. coming forward only after talking to DeCoutere seems to be there to imply that maybe S.D. made the whole thing up at DeCoutere's urging. His reference to "imprecise memory" sounds like DeCoutere intentionally implanted false memories in S.D.'s head. His reference to them being angry is a motive for conspiring against Ghomeshi and his reference to them feeling like a team and - heavens to Betsy - using foul language, is evidence that they were up to something unscrupulous.

If Horkins had any real reason to think that DeCoutere and S.D. had worked together to concoct a story and lie to the court he could have stated that reason. If he really believed they did these things he could have at least had the courage to say so instead of implying it with a title of "Possible Collusion" and then never actually saying how they colluded.

As written, the "Possible Collusion" section could have read:
[107] While I'm not saying Ms. DeCoutere and S.D. did conspire to cook up fake stories of Ghomeshi assaulting them, I find it curious that in their testimony they never denied doing so.
That's an argument equally worthy of the one that Horkins took four paragraphs to make. This fits in with our cultural narrative about sexual assault. There is a woman waiting around every corner to make false allegations against men. Never mind that false allegations of sexual assault are less common than false reports of car theft. Never mind that you are more likely to be acquitted having been charged with sexual assault than with another violent crime. Never mind that in reality you are more likely to be hit by lightning than to end up in court having had multiple women conspire against you to charge you with sexual assault.

Lastly, in legal writing is customary to italicize Latin phrases and words that have legal meanings like mens rea or de facto. Horkins italicizes the word "animus" both of the times he uses it in his ruling. But he isn't using the Latin word "animus" or a legal term "animus". He's just using the English word, "animus" which means anger or hatred especially with an intent to act upon it. What a moron.

Friday, 1 April 2016

Incredibly, It's Even the Defense Lawyer

One person I was definitely not willing to "blame" for the Ghomeshi verdict was his lawyer, Marie Henein. Defense lawyers sometimes have a bad reputation, but I respect them for doing their job of trying to get acquittals. If the system is one in which arguing about hair extensions is how you do that, I don't blame them for arguing about hair extensions. That needs to not work, then they'll stop doing it.

So I don't blame Henein for defending Ghomeshi or for the approach she took. If the judge was better then the verdict would have been better and Ghomeshi would have every right to blame her for advising him to put forward a stupid defense.

However, CBC's Peter Mansbridge did an interview with Henein this week to talk about the trial.

In that interview she said it was the right result and a principled verdict.

In that interview she criticized Tom Mulcair for tweeting with the hashtag #IBelieveSurvivors, saying that believing survivors wasn't and shouldn't be a legal principle, and that politicians shouldn't weigh in on this kind of thing.

In that interview she talked about the presumption of innocence. from a CBC article summarizing the interview:
"The legal system is premised on our fundamental belief that if you are going to a accuse me of a crime you will have to prove it, " she said.
Last post I talked about the cognitive dissonance is Horkin's ruling - he clearly knows what he was said was wrong since the events before and after a choking at not relevant to whether choking is criminal. This week, let's take a good look at what Henein said about the presumption of innocence.

What she said probably sounds about right to a lot of people who hear it. Truthiness aside, it is false, and she knows it is false. If Mansbridge had asked her, "In our legal system, is it the responsibility of the victim of a crime to prove the guilt of the perpetrator?" she would say, "No, it's not." Maybe throw in, "You know what I mean."

I do know what she means. She means just what I said when I wrote my last post two days ago: In Horkins' ruling, the job of prosecuting Ghomeshi is shifted to the victims from the Crown. That is the norm for sexual assault.

The job of prosecuting offenders is the job of the Crown. If you are the victim of a crime, you are supposed to report it to the police so that our society can find out what happened through the investigative process, and punish perpetrators of crimes through the prosecutorial process. You do not have to prove anything, rather, your statement of what happened is a piece of evidence used to get at the truth and to prosecute.

Let's think about an imaginary trial. The prosecution opens their case by calling Person A to the stand and asking them, "What happened on the night of [insert date]?". Person A says, "Person B choked me." The defense does not cross examine. The prosecution rests. The defense rests. There is no other evidence at all. Is that a guilty verdict? Is a person stating that something happened, in court and under oath, with literally no surround evidence for or against their statement sufficient proof that the thing happened to get past reasonable doubt?

If it isn't, then I think prosecutors and police ought to be a lot clearer about this with victims of crime. They need to tell them, "Look, in absence of physical evidence, there is zero chance of conviction. You simply won't be believed, or at least not believed to the extent necessary for a guilty verdict."

But police and prosecutors don't have to tell us that, because if the charge is assault and that is the trial our system returns a guilty verdict. Sworn evidence is, by default, believed. In any trial there will be more evidence than just the unquestioned statement of a single individual, and various pieces of evidence will weigh against one another. But the default setting is to believe what witnesses say on the stand, under oath.

This is what makes Horkins' and Henein's comments about believing witnesses and about hashtags infuriating. Of course we should believe women who say, under oath, they were assaulted by a man. That is not the same thing as saying that no evidence could possibly contradict them, it is not the same thing as saying that a single statement constitutes an entire trial, and it not the same as saying we can't have reasonable doubt about whether it happened. But if the default setting is not believing sworn evidence, then there is not much reason to have witnesses at trials anyway.

Reading this verdict, and hearing Henein's comments about the trial, I am left believing that my fictional one-statement-trial would definitely result in a conviction for assault, but that it would not for sexual assault. That if all other things balance out and we are simply left with the statement of a single women saying a man attacked her, a not-guilty verdict will be returned.

It is the absolute right of the defendant to choose not to take the stand in their own defense, and to not have their silence held against them. It is not remotely their right to have favourable assumptions made about what they would have said had they taken the stand. A trial where a woman gives evidence against a man and the man remains silent is not she-said-he-said. It's she-said-and-we-rolled-our-eyes, because the judge and the lawyers are rolling their eyes, and they are our representatives.

Henein's statement that Mulcair, himself a lawyer, should not have weighed in it bizarre and stupid. Mulcair thinks there is a crisis of confidence in the justice system regarding sexual assaults. Mulcair is right, sexual assaults are under-reported, and cases like this make it worse. If it isn't the job of politicians to try to fix the legal system so that the public can have confidence in it, whose job is that? Henein said that tweeting hashtags was unprincipled but that it gets votes. "Does it?" Mansbridge asked her. "It might," she said.

Well, defending a system where victims of sexual assault are not believed is unprincipled, but it sure makes your job as a defense attorney easy. "Does it?" Mansbridge might as me.

Hell yes it does.