January 2014 - The Parable of Stochastic Calculus

by Justice William W. Bedsworth

Shakespeare famously observed that, “There’s a divinity that shapes our ends, Rough-hew them how we will.”1 I write today to familiarize you with the lesser-known but equally valid Bedsworth’s More Realistic Corollary to Hamlet’s Uncharacteristic Ray of Sunshine, which says, “There is also a randomness to the universe that can blast our ends to smithereens no matter how carefully we’ve shaped them.”

In other words, no matter how you define Him/Her/It, whether your deity is an anthropomorphic personal God, a Deist disinterested Creator, or a Cosmic Force of unknowable form or dimension ... whatever it is, He/She/It likes to have a good time.

And if that good time occasionally requires that a tennis ball be bounced off one of the ants known as humans on that insignificant little blue planet way off in that galaxy named after a candy bar, well so be it. By the time You’ve created an entire cosmos, You fully comprehend the significance of the words de minimis.2 If You didn’t, You’d spend all eternity beating Yourself up over having created platypi and radioactivity and the nine-legged sand frogs of Arcturus 4.

Divine Randomness takes many forms. Exhibit A: Rodeo cowboy Casey Wagner goes to an event called Rednecks with Paychecks3 in St. Jo, Texas.4 There, he is struck by lightning. Remembering that “lightning never strikes twice in the same place,” he does not move.

Whaddya think happens? Yep. Within minutes, he gets struck by lightning a second time.

So what is rodeo cowboy Casey Wagner’s response to this bizarre and horrifically unfair twist of fate? He decides, “I gotta start going to church more.”

No, Casey! Even for a rodeo cowboy, even for someone who makes a living trying to grab the horns of angry 2,000-pound Brahma bulls chosen by the rodeo promoters in large measure for their meanness, this is sub-par logic.

It was the deity who did this to you. Who do you think casts these lightning bolts? Zeus? Okay. Perfectly acceptable theological choice as far as I’m concerned. But do you think Zeus has something against you, or did he pick you out of the phone book? It was random, Casey. You can attend the Pentecostal Church of Olympian Perfection until the cows come home and you still would be well-advised to stay out of electrical storms.

We see this all the time. Flood practically wipes out a family of ten. Dad, five kids, Grandma and Grandpa, and visiting Aunt Freida are swept off by a raging torrent of water when the harmless stream behind their home turns into a flash flood. Some dolt from the six o’clock news interviews Mom, the sole survivor of this tragedy, and asks her how she feels. What does she say? She says, “I just thank God our cat Fluffy was at the vet so I didn’t lose her, too.”

Fluffy? Fluffy! The house, the car, the riding mower, and nine blood relatives have just been scooped up and removed from the next census, and you’re thanking a deity for the survival of an animal you’d taken in to be spayed because the kittens were becoming a nuisance?

It’s randomness. Don’t get me wrong. This is not an atheistic position. This is merely acknowledgement of the fact that whatever deity you happen to believe in,5 you need to accept the fact that He/She/It has a mean streak. Or at least a random one.

Exhibit B: One of my very dearest friends lost a high profile case years ago. He had everything going for him: law, logic, a pleasant demeanor, a big corporation with a cheesy theory on the other side. Everyone assumed he would win the case.

Lightning struck. It struck where he was standing. Jury ruled against him. A completely random, inexplicable outcome. Made Casey Wagner’s second lightning strike look like reaching into a bag of oranges, closing your eyes, and pulling out an orange.

And it happened to the nicest guy in the world.

To this day, because he is unable to embrace Bedsworth’s More Realistic Corollary, he blames himself. Innumerable legal experts have come to the same conclusion I have: weird, random jury verdict. But he insists on hewing6 to the idea that he must have done something wrong. Hell, he wants to take responsibility for the folks who died in the flash flood and pay for Fluffy’s operation.

It was not his fault. It was nobody’s fault. It was a lightning strike that demonstrated the cosmic predilection for adventitious weirdness.

Folks, I’ve been practicing law for forty-two years. For the first twenty-five, as a prosecutor and then as a criminal trial judge, I watched juries in action. For the last seventeen, I have listened to people complain about judicial decisions because you generally can’t appeal on the basis the jury suddenly went walkabout.

I am a huge fan of juries and the jury system. But nothing about forty-two years of watching them in action has done anything to diminish my faith in Bedsworth’s More Realistic Corollary. They are one of the primary instruments of the deity’s randomness. They are one of His/Her/Its most effective means of satisfying an omnipotent taste for the desultory and haphazard.

You don’t believe me, ask any insurance company.

And right up there with juries are judges. How many times have you looked at the tentative and thought, “What? That’s impossible!!! What the @#$%%* is he smoking?”

Probably nothing. May have just misread the word “unreasonable” as “reasonable.” May have checked the wrong box and not noticed. May have typed “plaintiff” when she meant “defendant.” Whatever it was, it evidences nothing other than a cosmic taste for what statisticians call stochastic calculus: the introduction of a random element into an otherwise definable equation.

Why is it important for you to know this? Let me try to explain with one last parable.

Since it’s a parable, I’m going to change the names. The poor guy this happened to has had to live with it for almost twenty-five years now; he deserves some peace. But this is a true story and I have a Xerox of the UPI report to prove it.

Assistant U.S. Attorney has put together a case against Miami lawyer Wayne Mafuffnick, alleged to have defrauded two banks and three widows of $550,000. The case depends on the testimony of one Perry Scorpino, a co-conspirator turned state’s evidence.

Of course, since the key witness is getting a deal, the U.S. Attorney has carefully vetted him and painstakingly labored to establish his credibility. He’s interviewed him assiduously, talked to people who know him, run background check after background check. The FBI has carefully scrutinized everything about the man before the AUSA puts him on the stand.

And the direct goes flawlessly. For hours, Mr. Scorpino describes just how the scam worked and just how pervasive was Mr. Mafuffnick’s involvement in it. Not a hitch. The prosecutor confidently turns the witness over to defense for cross-examination.

At which point, according to UPI, defense counsel “strode across the courtroom and brought out a large square of cardboard covered with a sheet of paper. He positioned it in front of the jury and, with a flourish, uncovered his life size exhibit. It was a great big picture of Jean Harlow in a bathing suit.”7

The questioning that followed went like this:

Defense counsel: Do you recognize this picture?

Witness: I do.

Defense counsel: Who is it?

Witness: It’s Jean Harlow.

Defense counsel: And how is it you happen to recognize this photo?

Witness: My spirit once occupied that body. In my last life, I was Jean Harlow.

That sizzling sound you hear is the noise made by an Assistant U.S. Attorney who has just been struck by lightning.

Defense counsel spent some time asking the witness to describe the end of his last life, a description that included the witness’s hovering above the body as doctors injected drugs into it, but none of this really mattered. The case pretty much ended with the words, “In my last life, I was Jean Harlow.”

As the AUSA later lamented, “I asked him if there was anything else at all about his life I should know, but he never mentioned this.” And, of course, the AUSA never thought to ask, “And who were you in your last life?” Who would?

So here’s the moral of the story. Here’s the MCLE portion of today’s column. Sometimes there’s nothing you can do. Sometimes the proclivity of the universe for random chance just knocks you on your ass.

Don’t blame yourself. Don’t waste gallons of perfectly good psychic energy feeling like you’ve failed. Accept the fact that sometimes you just get a bad hop.

Sometimes it’s just a fluke. Sometimes the cosmic umpire blows the call. Sometimes it’s not your fault.

There is a randomness to the universe that can blast our ends to smithereens, no matter how carefully we’ve shaped them.

(1) William Shakespeare, Hamlet, Act V, Scene 2.
(2) You can probably even spell it—an accomplishment that eludes a distressing number of attorneys.
(3) This turns out to be a monster truck rally. Did I mention monster truck rallies in my list of things the deity might be embarrassed about having created?
(4) No, that is not a short-form reference to a town called St. Joseph. That would be St. Joe. This is an actual town in Texas named St. Jo. I can’t find any reference to an actual human St. Jo, but hey, who needs it. Athena didn’t exist either, but that seems to matter not a whit to the citizens of Athens. Besides, it saves a lot of time when you have to teach the kids to spell.
(5) I happen to have chosen the anthropomorphic personal God, part out of sheer orneriness because it is so contrary to reason, and part because I like the idea of burning shrubberies who talk and people who hole up in whales for long periods of time.
(6) I’m rather proud of this one. Find me another work—column, book, published opinion, whatever—that uses the two different meanings of the word “hew” within 750 words of each other and I will buy your lunch.
(7) Ms. Harlow, one of the first actresses to be deemed a “blonde bombshell,” died in 1937 at the age of twenty-six.

William W. Bedsworth is an Associate Justice of the California Court of Appeal. He writes this column to get it out of his system. He can be contacted at william.bedsworth@jud.ca.gov.