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Legal Memos, Letters and Abstracts Concerning the Daubert Test The Supression and Admissibility of Scientific Evidence in Civil Rights Cases
Table of Contents LETTER TO LAWYERS COMMITTEE ON CIVIL RIGHTS MEMORANDUM PART I. THE ISSUES and REMEDIES PART II: SUMMARY OF SCIENTIFIC EVIDENCE IN ITS CONTEXT BURRESS AND ASSOCIATES Offering An Alternative To System Failure* January 18, 1998 Ms. Ellen Paterson, Esq., Director,
Dear Ms. Peterson: Ms. Jamillah Moore, a consultant to Senator Teresa Hughes, California Legislature, has urged me to contact you. I request a meeting with you to explain scientific evidence that the rate of progress in civil rights law can be restored through a collaboration of civil rights lawyers like you and systems scientists like me. I have prepared the enclosed memorandum for you which is abstracted as follows: Findings of fact by the Court in Brown v. Board of Education were and are validated by scientists whose methods are not generally accepted. Therefore that evidence was inadmissible under the Frye test. This is why some in the 1950s like Chief Justice William Rehnquist insisted there was no authority in law for the Brown decision. A growing literature argues that the judicial system has failed because the Brown decision is unlawful precedent. In 1993 the U.S. Supreme Court ruled that the Frye Test is unconstitutional, and ordered its replacement with the Daubert Test. The Daubert Test requires a court to make three findings. First, the Frye Test required restoration of the pre-Brown ideology as the paradigm for facts; it required the reversal of the factual premise of successful civil rights law and provided the authority of law for a national social science version of the Tuskegee Experiment. Second, the Frye Test has therefore spawned accelerating failure of the judicial system with rulings like Bakke and the unconstitutionality of Proposition 209. Third, through due process for scientists, the rate of success of civil rights law under the Warren Court can be restored and then exceeded. Attention is directed to documentation in Appendix A (see attached cover page). The California Supreme Court rejected the Daubert Test and has retained its version of the Frye Test. Hence the need for new California law of standing proposed here. Let us meet to discuss how to challenge oppressive politicized justice which postulates that pretrial testimony by scientists may be precluded because unqualified courts shall be the nation's arbiters on the validity of a scientific proof without hearing evidence. I will call you in a week or ten days. Sincerely,
Glenn E. Burress, PhD Social Systems Analyst 306 25th Street -- Sacramento, Ca. 95816 Tel: 916-441-5305 Fax: 916-441-3032 E-mail: geburress@aol.com Website: http://members.aol.com/econjustic
cc: Ms. Jamillah Moore Consultant. Sen. Teresa Hughes Dr. Gilbert Parks, M.D.
To: Ms. Ellen Paterson, Esq., Director, Lawyers Committee on Civil
Rights From: Glenn E. Burress, PhD, Social Systems Analyst SUBJECT: The Unlawfully Suppressed Dramatic Potential of Daubert v. Merrell Dow Pharmaceutical Inc., 113 S.Ct. 2786 (1993) for Civil Rights Law
Findings of fact by the Court in Brown v. Board of Education were and are validated by scientists whose methods are not generally accepted. Therefore that evidence was inadmissible under the Frye test. This is why some in the 1950s like Chief Justice William Rehnquist insisted there was no authority in law for the Brown decision. A growing literature argues that the judicial system has failed because the Brown decision is unlawful precedent. In 1993 the U.S. Supreme Court ruled that the Frye Test is unconstitutional, and ordered its replacement with the Daubert Test. The Daubert Test requires a court to make three findings. First, the Frye Test required restoration of the pre-Brown ideology as the paradigm for facts; it has reversed the factual premise of successful civil rights law; in short it has given the authority of law to a national social science version of the Tuskegee Experiment. Second, the Frye Test has therefore spawned accelerating failure of the judicial system with rulings like Bakke and the unconstitutionality of Proposition 209. Third, through due process for scientists, the rate of success of civil rights law under the Warren Court can be restored and then exceeded. Attention is directed to documentation in Appendix A (see attached cover page). The California Supreme Court rejected the Daubert Test and has retained its version of the Frye Test. Hence the need for new California law of standing proposed here. Let us meet to discuss how to challenge oppressive politicized justice which postulates that pretrial testimony by scientists may be precluded because unqualified courts shall be the nation's arbiters on the validity of a scientific proof without hearing evidence. I will call you in a week or ten days.
BURRESS AND ASSOCIATES Offering An Alternative To System Failure January 17, 1998
To: Ms. Ellen Paterson, Esq., Director, Lawyers Committee on Civil
Rights From: Glenn E. Burress, PhD, Social Systems Analyst
SUBJECT: The Unlawfully Suppressed Dramatic Potential of Daubert v. Merrell Dow Pharmaceutical Inc., 113 S.Ct. 2786 (1993) for Civil Rights Law
Dear Ms. Paterson: Ms. Jamillah Moore, a consultant to Senator Teresa Hughes, California Legislature, has urged me to contact you. I request a meeting with you to explain scientific evidence that the rate of progress in civil rights law under the Warren Court can be restored through a collaboration of civil rights lawyers like you and systems scientists like me. This is possible because in Daubert v. Merrell Dow Pharmaceutical Inc., 113 S.Ct. 2786 (1993) the U.S. Supreme Court ordered the admissibility of scientific evidence like that summarized in Part II. The 1993 Daubert Test replaced the 1923 Frye Test under which scientific evidence was admissible only if the research methods were "generally accepted" by experts in the "relevant field." Under the Frye Test, the legal profession erroneously defined the "relevant field" for civil rights law as the behavioral or social sciences, and therefore this scientific evidence was inadmissible. However thus far the Daubert Test has made no difference. Since 1993 federal trial courts have ruled that, as a matter of law, we scientists are not entitled to the pretrial hearings ordered by the Daubert Court. Without any hearing whatsoever, one court ruled that our complaint is frivolous and then imposed judicial sanctions with threats of more severe sanctions if we continued to seek justice. Appeals were dismissed without oral arguments and the U.S. Supreme Court has denied four writs of certiorari to challenge this blatant abuse of judicial discretion under the Daubert decision. PART I. THE ISSUES and REMEDIES Does a technical, scientific protocol similar to that used to validate the existence of nuclear energy validate the factual premise of all major Warren Court civil rights decisions and invalidate the factual premise of all major civil rights cases since then? Under the Daubert Test, may the evidence so validated be ruled non-scientific and therefore inadmissible, as a matter of law, because the protocol is not used by non-scientists? In particular, may the courts refuse to permit pretrial expert testimony (like that described in two affidavits in Appendix A) and thereby deny the civil rights of we scientists to practice our profession? Are controlling human rights treaties that guarantee the rights of the middle class and poor and therefore all minorities violated? Have these courts replicated the 1856 error of the Dred Scott Court and the 1633 error of a secular Italian court at the Inquisition of Galileo. et. al.? For healing a sick society, is this error the counterpart to restricting the practice of medicine to the principles of fundamentalists faith healers in a court-ordered version of a Tuskeegee Experiment on the midle class and poor? Do not the speeches by Presidents and other political leaders reveal that the ultimate authority that empowers this crime against humanity, as in nearly all other cases, is a theology of social justice and peace traced to a culture-bound, fundamentalist interpretation of the Scriptures by the nation's leading theologians and religious leaders? I am proposing workshops for attorneys on how to use scientists to develop the relevant evidence exactly as scientists taught attorneys how to use DNA evidence. Attorney will discover that the following proof are now admissible under the Daubert Test.First, the factual premise of successful socio-economic system analysis by hard scientists, which validates civil rights decisions of the Warren Court, is reversed by behavioral or soft scientists. Successful analysis is thereby transformed into failure. Second, analytically it was easy for attorneys in the 1950s -- like William H. Rehnquist who is now Chief Justice -- to argue the Brown vs. Board of Education was devoid of any authority in law. All they needed to show was that under the Frye Test the findings of fact by the Brown Court were inadmissible! That seminal argument by Rehnquist has received growing acceptance in the literature. It is noteworthy that Rehnquist dissented in part to the Daubert decision. Third, in fact the failure of civil rights law has been spawned using the Frye Test to reverse the factual premise of First, Fifth, Thirteenth and Fourteenth Amendment law as well an human rights treaties that are controlling in federal and state courts. That one factual premise: We scientists have nothing to say about civil rights law. Fourth, we scientists show that under the Daubert Test one may expect to restore success to civil rights law by showing that its accelerating failure starting with the Bakke decision and continuing through recent rulings on Proposition 209 is traced to what is now the unlawful Frye Test. Finally, observe that the California Supreme Court rejected the Daubert Test or retained its "Kelly-Frye Test" in late 1994. The Hon. Ronald B. Robbie, Judge, Superior Court for the County of Sacramento, urged me to secure new law requiring trial courts to grant standing for these lawsuits. He had just refused to permit a trial (had granted a demurrer) in this challenge to the dogma of the legal profession. The Black American Political Association adopted the attached resolution October 12, 1997 calling for that law as well as legislative investigation of alleged gross professional malpractice of the California Judicial Council documented in the paper, RACISM IN THE COURTS: AN OPEN LETTER TO JOHNNIE L. COCHRAN, JR. AND OTHER MEMBERS OF THE JUDICIAL COUNCIL OF CALIFORNIA'S RECENT ADVISORY COMMITTEE ON RACIAL AND ETHNIC BIAS IN THE COURTS (title page and abstract enclosed). I understand your primary role is fund raising for LCCR. May I suggest that this project is a natural for raising funds for your organization. In this respect, I should point out that my mission has received generous funding by the Ford Foundation, the Taft Foundation, the National Science Foundation, the American Bankers Association Foundation and others through 1973. In 1994 the U.S. Department of Justice's National Institute of Justice repeatedly urged me to propose their funding. That proposal has been prepared. Without any fee for my services I will devote near-full-time for several weeks as necessary to help LCCR prepare funding proposals to DOJ, NSF and the Ford Foundation and others that you know. I should point out that I am affiliated with no one and have devoted full-time to this project since 1979. I have personally funded the project since then with my own investment income.PART II: SUMMARY OF SCIENTIFIC EVIDENCE IN ITS CONTEXT The following evidence qualifies by a wide margin as admissible under 1993 orders of the U.S. Supreme Court in its Daubert decision. Discoveries by systems scientists during 1904-12 were relied upon to design cybernetic controls for the use of economic laws to engineer remedies to past economic injustice suffered by either economic classes (such as the middle class and poor) or non-economic classes (such as African Americans, Latinos, women and others). Both increased and reduced class-based social justice can be engineered with either minority laws (e.g., race laws) or economic laws. Neglected, simple principles are summarized in the endnote. Justice for all is engineered with the Prescription for Success (PS) in Panel A of Table 1. Economic laws are then used to reduce income inequality in processes that maximize productivity (Table 2) and that in time eradicate poverty while reducing class conflict and violence. Oppression for all is engineered with the Prescription for Failure (PF) in Panel B of Table 1. Economic laws are then used to increase income inequality in processes that reduce productivity (Table 2) and that increase poverty, class warfare and violence. The footnote to Table 1 merits your careful study. Table 1 summarizes the following: The Prescription for Success (PS) was used for the United States for progressively reduced political oppression during 1921-29, 1941-56 and 1961-64. Since November 15, 1964 (except for 14 months during 1995-76) the Prescription for Failure (PF) has been used by the United States for progressively increased political oppression. Since 1964 U.S. economic policy has violated the civil rights of the middle class and poor -- especially the homeless and hungry. The same is true for most classes covered by civil rights statutes. That is, those who have suffered political oppression in the past are overrepresented among the middle class and poor, and therefore they suffer disproportionately from increased income inequality. There is an important lesson taught by the fact that improved health of a person infected with the HIV virus must not be misinterpreted as reason to reject a dire prognosis for a long life. In this same sense one must not attach long-run implications to cyclical or other fluctuations around the trend in the median income of Blacks relative to whites that is required by either PS and PF. Improvement for Blacks relative to whites under PF during 1966-69 was due to Vietnam War spending which delayed the political oppression of Blacks relative to whites until 1970. The same is true for cyclical improvements in the same relationship during 1974-76 under President Ford, 1982-84 under President Reagan, 1989-90 under President Bush and since 1993 under President Clinton. The statistics on political oppression are closest to their trend value when there is neither recession or recovery as during 1992 and 1993. Improvement since 1993 is like the improved health of a person who will die of AIDS. At the White House in 1964 as a Business Week editor, I witnessed aggressive off-the-record planning to use PF to circumvent economic expectations of the Civil Rights Act of 1964. I was unable to intervene. Chart 1 shows that no program in Washington since World War II has been more successful: The median income of African American families relative to that of whites was lower in 1992 and 1993 than in 1964. Chart 2 depicts a little understood but expected impact of Affirmative Action when combined with the unconstitutional PF as planned in 1969 by some in the Nixon Administration. PF, which engineers rising inequality of income for all citizens, engineers even more rapidly rising income inequality among African Americans, Latinos, et. al. The preoccupation with the civil rights of employed individuals rather than entire classes permits minorities in the two top income quintiles to maintain the status quo -- still unconstitutionally low at 65% to 70%. As a result, the impact of more rapid income inequality within minority classes is concentrated in the two bottom income quintiles. The result of the racist PF is therefore increased Black crimes against Blacks as well as increased racial disparities in incarceration, independent of or in addition to those disparities due to drug laws. PART III: BRIEF HISTORY OF IDEAS The dramatic potential for the nation to enjoy a sustained rise in the general welfare through systems science has been widely reported in books and in the press by we scientists since 1920. This opportunity was called into formal national political debate by President Roosevelt in his 1944 State of the Union Message. Roosevelt proposed what became known as the Murray Full Employment Act of 1945, which would have required using systems science to keep involuntary unemployment near zero. After long and acrimonious debate, Congress responded to the political power of non-scientists and the proposed law was voted down. The law proposed by Roosevelt has never seen the light of day. This is the U.S. counterpart to yielding to the political majority in Catholic nations and banning artificial birth control. The only other national leaders to challenge the nation to embrace the power of science was President John F. Kennedy. His decision to reverse failed 1929-41 and 1957-60 policy (see Table 1) was explained in his 1962 Yale Commencement Address, "The Myth And Reality in Our National Economy." He challenged the nation: "As every past generation has had to disenthrall itself from an inheritance of truisms and stereotypes, so in our times we must [in federal budget policy] move on from the reassuring repetition of stale phrases to a new, difficult but essential confrontation of reality. "For the great enemy of the truth is very often not the lie -- deliberate, contrived and dishonest -- but the myth -- persistent, persuasive and unrealistic. "Too often, we hold fast to cliches of our forbears. We enjoy the comfort of opinion without the discomfort of thought." He concluded by warning that if "more basic discussions of the sophisticated and technical questions" continued to be settled by cliches and "ideological preconceptions" of non-scientists, this nation would land "in the bog of sterile acrimony." (emphasis added.) Social scientists seized the opportunity created by that bullet in Dallas to bury that national debate with the slain President. Hence the current bog of sterile acrimony of a once great nation. The paradigm of non-scientists does not permit replication of proofs by scientists. That is. JFK clearly taught us that in the same sense that one cannot postulate the validity of Catholic theology and find reason to accept artificial birth control, peer review panels, who under the Frye Test controlled the admissibility of evidence in federal courts and still do in California courts, cannot find reason to accept these findings. The peer review panels that used the Frye Test to suppress these proofs are not only social scientists in all major universities such as historians, economists, political scientists, et. al. On the contrary they include elite peer review panels of experts in constitutional law at all major law schools. Both groups of experts postulate that the majority vote of non-scientists shall decide the validity of a scientific discovery. Under the Daubert Test neither set of peer review panels can control the admissibility of proof of their ideological blindness. This is an issue to be decided by the trier of fact and not by the practice of law! From the massive literature on which Presidents Roosevelt and Kennedy drew, consider two 1953 books -- the year before Brown -- in which conflict over the power of science to eradicate poverty was addressed. For the general public there was the publication by the National Council of Churches, THE ORGANIZATIONAL REVOLUTION: A Study in the Ethics of Economic Organizations by Kenneth E. Boulding. For technicians there was the 1953 challenge to the oppressive economic ideology of social scientists, THE MECHANISM OF ECONOMIC SYSTEMS: An Approach to the Problem of Economic Stabilization from the Point of View of Control-System Engineering by Arnold Tustin, a professor of electrical engineering. See the endnote for reason to believe that this body of knowledge was part of the legislative facts (drawn from outside the record) by Justice Felix Frankfurter -- a key justice on the Brown Court. During 1955-64 I reported the precise relationship between these principles of cybernetic system controls and economic theory. I proved that by limiting knowledge to that reported by Nobel Laureates in Economic Science, economists are analytically required to conclude that this scientific knowledge does not exist and therefore no professional journal of economist would publish my findings. I then reported my work to engineers and scientists in publications of IBM. Those who understood this evidence founded units like the Department of Engineering Economic Systems at the Graduate School of Industrial Engineering at Stanford University. My 1964 article in a professional journal shows that the evidence was also endorsed by the late J.W. Martin, for whom the J.W. Martin Graduate School of Public Administration at the University of Kentucky is named. Discern the context. History is replete with cases where the survival of nations was threatened because the justice system was a prisoner of erroneous teachings of social scientists. In law the process is known as redefining a simple question of fact as a question of constitutional law, with the result that constitutional law is built on an erroneous factual premise. Examples are not only Dred Scott, Plessy v. Ferguson and denied suffrage to women, but also Nazi and South African oppression. We systems scientists cite evidence in Part II to argue that four U.S. Supreme Court rulings during 1994-96 trigger ongoing undeclared civil war with rising racial disparities in income and violence due to legal reasoning that is only nominally different from the reasoning of the U.S. Supreme Court in Dred Scott that was a catalyst in the Civil War. This blatant rejection of the principles of western jurisprudence has also been cited to secure dismissal of alleged violations of the Sherman Anti-trust Act of 1890. The record documents that unusually aggressive monopolistic acts by major U.S. corporations during 1969-78 destroyed the market for the services of us competing scientists. This is why these facts are not now generally known. In the 1970s and 1980s lawyers refused to provide legal representation on the grounds that as a matter of law under the Frye Test, these claims by we scientists are frivolous. With encouragement from staff at the California Judicial Council and the U.S. Department of Justice, I have therefore represented myself in filings in fifteen courts since 1991. Three California and two federal courts have refused to permit pretrial expert testimony (see Appemdix A) on why a trial was required by law. Seven appellate courts dismissed appeals without oral arguments, and, as mentioned before, the U.S. Supreme Court denied writs of certiorari four times. The record in these cases shows that the conduct of attorneys is tantamount to using fraud to cause a court to reject DNA or fingerprint evidence. I am now preparing a lawsuit in the World Court which will show that with respect to civil rights, the U.S. judicial system is more politicized: (1) than the southern courts during slavery, and (2) Nazi and South African courts. That is, this is the only major human rights case where a nation's courts have disposed of alleged human rights violations by ruling that the oppressed shall not be heard. There is no statute of limitation for the World Court action, and the U.S. Congress has declared World Court jurisdiction when a trial has been denied, as in the instant case. I should point out that the California legislation I seek requiring courts to hear the case won strong support from Steve Birdlebough on the staff of the California Judicial Council. However he was outvoted by that staff. Hence the attached resolution passed by BAPAC. See RACISM IN THE COURTS. PART IV: OTHER PROPOSED ACTION I would like to meet with you to discuss whether legal representation for us scientists is now more probable under the 1993 Daubert decision. I should point out that it was never presumed that I could prevail over the opposition represented by some of the best law firms in the United States such as Gibson, Dunn and Crutcher. However, I have devoted several years to studying the relevant law, and I believe that my pleadings would provide an excellent foundation for attorneys to use me as an expert witness. In the proposed workshops for attorneys I would explain how attorneys can respond to the directive of the Federal Judicial Center to use the 1994 Reference Manual on Scientific Evidence to teach judges how to apply the Daubert Test. It would appear that these workshops would be an excellent way to identify attorneys who might represent us scientists. I have prepared a twenty-one page memorandum with fifteen pages of appendices on the content of such a workshop. I hope you will request a copy. The workshops will also show that reparations on a massive scale for African Americans is not only feasible but is shown by historical precedent to be a program that would restore health to the U.S. economic and financial system. I also solicit your guidance on how to secure enactment of the enclosed draft of California law which requires California courts to hear cases alleging complicity in crimes against humanity by institutions such as the University of California, the California Bar Association and various religious organizations. As a source of earnings for attorneys, this could be the mother of all class actions. Moreover corporations that have violated the Sherman Act have deep pockets. They include Chase Manhattan Bank, McGraw-Hill Inc., General Electric Co. et. al. See endnote seven. Let us also discuss how I might secure legal representation for my lawsuit in the World Court. So far I am discovering that international lawyers are no more qualified to argue this case than members of the bar in Mississippi or Alabama were qualified to argue against slavery. I would also like to present a radically different common law theory of legal action in equity when a class whose civil liberties have been denied in the past have won their political rights but have suffered a reversal of promised economic rights. You also need to be aware of a proposal from Dr. Gilbert Parks, Treasurer of the Black Psychiatrists of America and me. We propose to provide expert testimony that there is far more justification for violent acts against oppressive institutions in America than for similar isolated acts by Jews who challenged Nazi oppression. The difference is that oppression of Jews in Nazi Germany was constitutional and this is not true in the United States. We believe this should be part of the defense of many members of minority groups charged with serious crimes. Experience teaches me to alert you to the fact that you will, at first, find these allegations off-the-wall. I therefore urge you to consult Ms. Moore in Sacramento at 916-322-4400 or Dr. Parks in Topeka, Kansas at 913-267-6925 if you are inclined to reject my allegations before I have had the opportunity for oral response to your many fine questions. I have made that request of both Bill Lee at the NAACP-LDF and ACLU attorneys, and both refused to see me. Please do not make that mistake. I am therefore readily available to you. I hope we will be meeting soon so that I can answer your questions and brainstorm on how to proceed. Sincerely,
Glenn E. Burress, PhD Social System Analyst
P.S. I enclose material on my professional history, a recent press report on my mission and related material.
cc: Dr. Gilbert Parks, Treasurer, Black Psychiatrists of America, 629 Quincy, Suite 205, Topeka, Kansas 66603 Ms. Jamillah Moore, Consultant, Select Committee on Higher Education, Admissions and Outreach, 1020 N Street, Room 523, Sacramento, California 95814 |
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