August 31, 2010

Oh If Only You Could Run As A Generic Partisan

Generic Republicans are leading generic Democrats in Congressional polling by ten points.  This would be remarkable news if the United States voted for parties rather than individual candidates.  To be sure, the President's party traditionally takes a hit in midterm elections and with the economy the way it is, the hit will be harder than usual.  But I'm sticking with my prediction that the Democrats maintain a narrow hold on both houses of Congress. Democrats may have demonstrated that their idea of good government is to deficit-spend even more and get the same results as the last guys, but gerrymandering and incumbency are still pretty powerful.

And the Republican insurgents are weighed down by the lingering truth that P.J. O'Rourke pronounced twenty years ago: Republican candidates campaign on the platform that the government is corrupt, bloated, inefficient, ineffective, and expensive, and then once they get elected they work as hard as they can to prove that those claims are true. Any Republican candidate needs to explain why she won't be like the ones who got thrown out of power in 2006 if entrusted with actual power. As for me, I'm disgusted with campaign platforms that amount to "Free Beer!" and "Freer Beer!"

I've yet to hear a politician of either party, other than Paul Ryan and Gary Johnson, even address the topic of how we're going to get ourselves out of debt in anything like a meaningful way.

August 30, 2010

Know The Odds

At a booze-enhanced social gathering a couple weeks ago, I met a woman who had been convicted of some kind of Federal drug offense. She was pleasant enough to talk to but when she found out I was a lawyer, she wanted to tell me all about her story and how unfair it was that she had been "forced" to plead guilty and hadn't really done anything wrong.

Now, it's not like I think I got the whole story from this woman after she'd had a few cocktails at a social gathering. Chances are pretty good that if her attorney told her she was better off entering into a plea arrangement, there was a reason for that. In my experience people convicted of serious crimes are always elliptical in telling people they've just met all of the relevant facts. This woman specifically had some serious problems with her tale. She couldn't or wouldn't articulate the name of the charge to which she had pled guilty. Sketchy. She also claimed that she had been tried for the exact same crime, three times in a row, in the same court, and that she accepted a guilty plea only after having been acquitted twice previously. Something makes me doubt that both her second and third defense attorneys were so dim as to have forgotten the double jeopardy rule during the course of two jury trials (professors tend to dwell on the double jeopardy rule in most law schools), so once again, there was almost certainly more to the story than was disclosed to me.

This is not uncommon. In the bulk of social events where I meet new people and they find I'm a lawyer, I wind up getting told half or less of a story, all from one person's perspective, and asked to affirm that an injustice has been done. Which is one of the hazards of the profession and as professional hazards go, that one isn't all that awful.

But here's my point for today's post. This woman said that if she thought she had been given a reasonable chance to present her case, she would have been acquitted. However, she believed (without reference to any kind of systemic or statistical data) that federal prosecutors win basically all their cases because the system is stacked in their favor. She feared the odds against her. That's what she claimed motivated her to plead guilty to a charge of which she said she was innocent.

In some ways, she was right to fear the prosecution. There are a lot of institutional advantages that the prosecution has, not the least of which is the aura of righteousness, credibility, and truth in which the prosecution and its primary supporting witnesses (law enforcement officers of various kinds) come clothed to court. They're wearing the white hats, you're not, and that's a very big deal. But there are also some other factors at play, such as the occasional juror or judge who takes the "beyond a reasonable doubt" standard of evidence seriously, and various rules of evidence that stands in between the jury and just any old bit of hearsay, wild suppositions of a cop, or unsubstantiated speculation offered by someone with an advanced degree. So my overall impression of the system is that a guilty verdict in a contested trial is not always a slam dunk for the prosecution.

And having met and socialized with prosecutors before, my impression was that of the cases that actually go to a jury, the prosecution wins roughly half of them. My new acquaintance simply disbelieved me.

By way of Defending People, I have found some statistics with which this dispute can be validated. The vast majority of cases are disposed of by way of guilty pleas, which is common knowledge.  About 90% of all Federal cases and more than 70% of state court cases (looking at the 75 largest counties in the US) are disposed of with guilty pleas.  And indeed, my interlocutor pled guilty herself in her own case, in her own description because she feared the odds of proceeding to trial.

But this statistic looks at the total number of criminal cases filed and compares them to their dispositions. That wasn't the proposition as framed--of the cases that go to a jury, what are the statistical chances that the prosecution comes up with a guilty verdict?  The U.S. Department of Justice has done that research for me.  While their newsletter points to the glowing odds of success for prosecutors overall, by breaking out the guilty pleas and looking only at cases where no plea is entered, we find that the odds at trial are actually favorable to defendants.

In state court, only 15.42% of all non-plea cases result in guilty verdicts.  Close to four out of five are then dismissed.  The odds are better for the prosecution in Federal court, where 40.99% of the non-plea cases produce guilty verdicts; just under half of the cases get dismissed when there is no plea.  Now, only a tiny number -- just under 5% in state court and just over 9% in Federal court -- result in acquittals. But a dismissal is as good as an acquittal from the defendant's point of view, because it results in no conviction.

So my interlocutor was not only wrong, I was too -- we were both too generous to the prosecution.  Of the cases in which there is no plea arrangement, the prosecution loses most of the time.

A reasonable claim can be made that these may be numbers that conceal more than they reveal. For one thing, there is no breakout of jury versus bench verdicts. Most of the non-plea cases resolved by dismissal rather than verdict, so who initiated the dismissals? Some were motions by the defense, some were made by the prosecutors in the interest of justice, and some initiated sua sponte by the court, and we have no breakdown there, much less any understanding of what went in to those decisions. Were the dismissals with or without prejudice? Stipulated or opposed? How many of them were made after the court entertained evidence, or after it had empanelled a jury? How many of them were followed up by a referral for prosecution in the parallel system? The DoJ report doesn't answer any of that for us.

What it does say is that overall, if there is no plea, guilty verdicts result a bit more than two times out of five in Federal court, and a bit more than one time in seven in state court. My interlocutor was very wrong; the prosecution doesn't win them all; even I was too generous to them, because the prosecution's win ratio in non-plea matters is statistically worse than half.

When you look at this number, don't lose sight of the fact that most criminal cases resolve by plea. There is a reason for that. So it's time for me to make a




Even if the prosecutor might not be holding as many cards as he wants you to think he is, your case might still suck. Even if you do nothing but play the odds, the prosecutor is going to win enough cases to be scary. Only your own attorney can tell you if you have a realistic chance at walking away with an acquittal after trial. If your case does suck, a plea arrangement may be the best you can realistically hope for. Even odds of one in seven that you're going to be convicted of the charges brought against you should be taken seriously because prison is a Very Bad Place. If going there anyway is a functional inevitability, the right move is probably minimizing the amount of time you must spend there.

So if you real this post and later plead "not guilty" to a felony charge and it doesn't work out for you, don't come crying to me, pal. This blog post is not legal advice, it is only a generalized commentary about the law. It's a blog, for crying out loud. "Oh, I read on the internet that all you have to do is tell the D.A. to take a hike and you pretty much just automatically get off scot free!" That's not what I said -- I mused for a while about a somewhat surprising set of statistics, and then I said, "Your case might suck."

When your defense counsel looks at the case and tells you that you're better off with a plea arrangement, that's legal advice and she's giving it to you for a reason. That reason is not that she's been bribed by the prosecution, it's not that she's prejudiced against you, it's not that she's incompetent or scared to try a case, and it's not it gives her pleasure to suggest it to you. She's on your side. She's very likely the only friend you've got who's in any position to offer you any meaningful help. Treat her accordingly. Listen carefully to her advice, ask her intelligent questions about why she's giving you that advice, and seriously consider following it as dispassionately as you can.

August 26, 2010

America Is The Measure Of Herself

A clear-eyed blogger has pointed out (in a post that I can no longer locate) that much of the ongoing sturm und drang over the mosque community center that includes a mosque presently in construction nearly tragically underfunded right on top of two blocks away from Ground Zero is really all just so much pornography of opinion. As I've mediated on before, what may really be going on is a massive miscommunication resulting from the poverty of the English language -- "should" there be a mosque at this location can imply either a normative assessment of the social appropriateness about this proposal, or it can imply a legal assessment of whether the government possesses the power to prevent it from going forward. My initial take was the second facet of the question, but I'm not so sure that many of the objectors to the mosque project aren't simply being foggy about the distinction between the two issues because either they aren't able to intellectually distinguish between the two concepts or because they are motivated to prefer not to do so for, among other possible reasons, political advantage.

But there is a class of mosque-project protestor who clearly does understand the difference between the normative "should" and the governmental "should," and that class includes the editorial board of the Washington Examiner, Newt Gingrich, and Andy McCarthy. They have all made the point that there are no Christian churches in Saudi Arabia, but there are plenty of mosques in the United States and even in New York City. There is some ill-defined boundary of good taste within which mosques ought not exist, they claim, sometimes rather gruesomely (but nevertheless illogically) claiming that because debris from the 9/11 attacks fell on Park Place, this mosque project is nevertheless still on "sacred ground." By pointing to a nation where the government actively prohibits religious diversity and imposes a state religion, these authors are squarely addressing the question of whether the government should intervene in this increasingly vapid issue.

I think the comparison with Saudi Arabia is insulting. Insulting to the United States. Since when do we evaluate our own Constitutional standards of the limits on governmental power against those set by a monarchy? Since when do we judge our own measure of social tolerance against a yardstick created by a nation with a fanatical, barbarous, and murderous state religion?

America is the judge of herself. The Constitution of the United States is the ultimate yardstick against which we should measure ourselves. I don't give a damn how the King of Saudi Arabia governs his subjects. We don't have kings here, we don't have subjects. We are self-governing citizens in a nation ruled by law and administered by a Constitution whose core function is to limit the powers of the government. We are more than capable of judging and evaluating ourselves; we have an active marketplace of ideas and opinions in which to do that; we are possessed of higher ideals than the rest of the world and we do better than the rest of the world when we aspire to fulfill our own ideals.

As to the second question, whether the project is in good taste, I'll reserve judgment. I'm willing to give the guy a chance to actually say what he wants to say (if he can raise the money to do it) before I evaluate it one way or the other. But mainly, they have exercised their rights and said what they choose to say. After all, this is a free country.

In Saudi Arabia, I'd likely be deported for saying this -- and if I were a Saudi citizen I'd be gambling with my life to say it -- but the King of Saudi Arabia can suck it because he and his nation don't matter to this debate. In America, the owner of private property may put that private property to any lawful use he chooses, even if that means a house of worship for an unpopular religion; in America, a citizen may express whatever opinion he wishes, even a political opinion that Sharia law ought to become the law of the USA and the government has acted immorally; in America, we draw strength, power, and our communal identity from the differences among us. This is not Saudi Arabia.

Notwithstanding the efforts of religious fanatics to impose the phrase "In God We Trust" on their fellow citizens who do no such thing, our national motto has always been E Pluribus Unum. Nineteen religious fanatics with box cutters who committed mass murder ten years ago aren't worth giving that up.

August 25, 2010

Once Again Because It Apparently Wasn't Clear Before

Death threats are not an acceptable method of expressing your disagreement with someone else's political point of view. I happen to like Dick Armey for his career-long status as a budget hawk, but that is totally irrelevant -- like all Americans, he deserves the ability to express himself without fear of violence. Criticize him if you wish; more to the point, criticize the policies he espouses and offer better alternative if you don't like what he has to say. But death threats are not an acceptable tool of democracy. (It's also not accurate to say that FreedomWorks is a Tea Party organization; it's been around since 1992 in one form or another; the Tea Party movement is a much more recent phenomenon, one which continues to lose coherence in my estimation.)

Nor is it particularly relevant if your choice of victim is someone you would apparently sympathize with -- because if you cross the line into actual violence, well, now you've become an actual criminal and the full weight of the law should be used to respond to you. I don't much care how nice the group you apparently once volunteered for sounds. Knives are not appropriate tools of political discourse.

Words and ideas, folks. Those ought to be sufficiently powerful if they are on the side of the truth.

August 24, 2010

Take Off Your Tie, Doc

I just learned yesterday that it may well be that one of the most dangerous things a doctor can do is wear a tie around patients. This is unfortunate, because wearing a tie lends a degree of gravity, authority, and respect to a man, and a doctor is in a position where such a badge of authority is an important facet of the doctor-patient relationship. Many of a doctor's customers (as distinguished from his "patients" who may be the same person but sometimes are not) expect him to wear a tie as such a badge of his position.

It's not conclusive that silk ties can transmit disease; if they can, the lab coats  may well serve the same function, particularly if they are not laundered frequently. But it makes sense. Shirts, pants, undergarments, and possibly the traditional white lab coat can be put through a washing machine with some frequency. But ties are typically made of silk or some other delicate material, and therefore not laundered often because it is expensive to do that. Most guys gradually acquire a collection of ties, some of which can grow to prodigious sizes, but as a practical matter they run through a rotation of between ten to fifteen ties in a cycle because the favorite ties, or the ones that are known to look good with a particular coat and shirt combination, get worn more often. I'm certainly guilty of that.

Typically, I only send my ties to the cleaner when I spill a visible amount of soup or sauce on them.  But that doesn't mean that just because I come home with a clean-looking tie, I've managed to avoid smaller amounts of organic material getting lodged in there - and if there is organic material in there, maybe other stuff is eating it, like dust mites or molds or other unpleasant beasties. Beasties that you wouldn't want to be spreading around to other people, especially if you were in the business of healing them. Not all that many at any one location or time, but after a while, it can add up.

The last time I went to see a doctor, he was wearing surgical scrubs, a white lab coat, and running shoes.  I didn't think anything of it since the doctor I saw is a surgeon. I noticed the lack of tie, but didn't think much of it since scrubs seemed an appropriate thing for a doctor to be wearing -- obviously "medical," easily-laundered, and permitting substantial freedom of movement while treating patients. But now that I think about it, if he was either coming from or going to surgery after treating patients for several hours in his office, shouldn't he have changed his scrubs coming in to or going out of the OR? Doctors, help he out here. Those scrubs he was wearing when he saw me must have been for office wear only; he wouldn't go in to surgery wearing the same scrubs that had absorbed whatever microorganisms I had exhaled onto them earlier in the day, right? Or is this something that doctors, being human, sometimes forget about?

I don't think there's much of a counterpart to the necktie for women. Some women's suits include silk scarves or frilly collars on the blouses, which I guess could be like a man's tie. Sometimes there are shirts or blouses that go up to the neck on a woman's suit, but mainly they seem to be open-throated. A woman wearing a necktie is making a fashion statement,* and doctors are not in the business, usually, of making fashion statements like that. Like all professionals, they wear what they wear to stick in, to conform, to demonstrate that they are part of the establishment.

But these are not as important goals for doctors to have as protecting the health of their patients. So more scrubs, doc; I for one am not going to forget that you are a doctor even if you leave the tie at home.

* I include servers at the Olive Garden in this. The women servers, seaters, and bartenders wear ties similar to the men, as part of the server's uniform. The statement there is one of uniformity. Nor is wearing a tie a bad fashion statement for a woman to make; more often than not I've been pleased with the look.

My Strength Of Schedule Assessment

I think I'm done making fun of the sports media for its all-Favre-all-the-time coverage. I'm also pretty much not bitter about Favre this year -- he's obviously on his swan song and frankly, I'm cheering for the old guy. Except when he plays against Green Bay. And in this context, "old guy" meaning a guy who is less than a year older than me.

Anyway, one of the things I do to try and get an edge up on my competition in fantasy football is to assess the strength of each team's schedule. It's not too hard to find canned statistical analysis out there that compiles the win-loss records of each team and its opponents.  But it is hard to find such canned analysis that factors in home-field advantage (typically averaged at 8%, but there's an interest note that home-field matters more when teams are closely matched).

It's also very hard to find canned analysis that shows you the degree of such an advantage -- it's one thing to say "Arizona has the easiest schedule" or "Green Bay has the twelfth-easiest schedule" by ranking the schedules on a scale that runs on integers from 1-32. It's much more interesting to see not only that Arizona's schedule is the easiest, but by how much.

Well, after a fair amount of wrestling with Excel tonight, I got to it. As a courtesy to my fellow fantasy football players, I publish my assessment of how each team's schedule helps or hinders its overall chances of success.  Obviously, any statistical assessment based on last year's performance of each team does not take into account personnel, coaching, health, and aging changes that have taken place in the interim. Even with what I think is a superior method of assessing strength of schedule, you need to remember that such an assessment has finite utility. As the season progresses, you will rely on something like this less and less.

Anyway, here goes, from worst to best schedules:

HOU 42.41%
TEN 42.82%
DAL 43.56%
CIN 43.96%
NE 44.12%
WAS 44.13%
JAX 44.29%
PHI 44.54%
NYG 45.03%
IND 45.35%
CLE 45.75%
DET 45.87%
BAL 46.89%
ATL 46.93%
CHI 46.98%
NYJ 47.06%
MIN 47.14%
OAK 47.25%
BUF 47.53%
PIT 47.97%
GB 48.03%
MIA 48.13%
KC 48.35%
DEN 48.67%
CAR 48.81%
TB 49.48%
NO 50.48%
SF 51.26%
SEA 51.31%
SD 51.36%
STL 51.65%
AZ 52.40%

You note that the average schedule factor here is less than 50%. You might think at first glance that since every game has a winner and a loser, this is necessarily a zero-sum game. But that's why the homefield advantage is important -- if you play all your easy opponents at home, and all your tough opponents away, that's an unfavorable schedule. The results are also skewed a bit because last year's NFL records were unusually polarized; there were a few teams with great records and a few teams with really bad records.

This is dramaticaly illustrated with, for instance, Chicago -- Chicago is not a bad team by any stretch of the imagination, and was not a bad team last year. However, it has to play Minnesota twice and Green Bay twice. That's bad luck for da Bears because both Minnesota and Green Bay performed at playoff levels last year. That makes Chicago's a tough schedule and thus produces an unfavorable schedule rating.

So, there is no theoretical reason why schedule assessments should be a zero-sum system, and in fact it is not.  If it seems like Houston just can't catch a break this year, here is at least part of the answer as to why -- the vagaries of the scheduling system have stacked the deck against the Texans.

Now, good teams will rise above this sort of stuff where bad teams will fall victim to it. Which is to say, again, that it's important to not place too much weight on this -- a 52.40% schedule advantage does not doom Arizona to a 9-7 season. It means that all other things being equal -- and they are not -- Arizona's schedule looks like it will give it maybe one more win than a theoretical "average" schedule, particularly in a close game and particularly at home, making it more likely that Arizona will be a contender for the playoffs late in the season.

A Well Balanced Meal

Dinner last night was a martini and half a bag of potato chips. I'm sure my doctor would approve.
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August 23, 2010

ASTN Fantasy Projections On The Only Player Who Matters

[Intro Music.]

HOST:  Welcome back to the All Sports Talk Network, for this week's Fantasy Bulletin. Today, we're talking Favre. Which is kind of like the last eighteen hours of our programming yesterday, only we've got some actual statistics generated in preseason play to run through our sophisticated forecast analysis computer models.  Paulina the Projector, take it away!

PAULINA:  Okay, thanks, Leonard! Folks, with no sign of antihistamine side-effects or slowness bothering Brett Favre in the four plays he participated in during this weekend's preseason game against San Francisco, sports fans everywhere are looking for clues about his upcoming performance. Favre, who was in on four plays, threw 1-1, for 13 yards and no touchdowns, had no interceptions, and was sacked once for a loss of ten yards.  ASTN has a statistical projection available run by our own Eddie the Egghead, and the result is surprisingly mixed.  Isn't that right, Eddie?

EDDIE:  That's right, Paula.  I ran ASTN's exclusive "straight projection" technique on Favre and the results are mixed.  On the one hand, we project his performance to be on pace for a record year in the regular season. Barring an injury, Favre will have a stunning and career-high quarterback rating of 118.75, which will be the second-best in NFL history. Brett will finally lick his career-long tendency to interceptions; ASTN projects based on his performance against the Niners that Favre will throw no INT's this year. That's right - zero. You heard it here on ASTN first.

PAULINA:  So I'm going to want to use my #1 overall pick to get Favre!

EDDIE:  Not so fast, Paula-Paula.  Maybe you girls are in a scoring league. If you are, I'd say look elsewhere.

HOST:  Whoa! Favre is a touchdown machine, Eddie!

EDDIE:  No, it's true. Favre threw no touchdowns at all despite having had four opportunities to do so. Based on how he played this weekend, we think that Favre will come in last place for touchdowns scored in the season among starting QBs. And, if you do draft him, beware of injuries! I know Favre has never missed a start yet in his twenty-year career, but based on what happened Sunday, Minnesota's offensive line will allow Brett to be sacked on roughly 25% of the plays, for an average of ten yards lost per sack. For some leagues, this could be devastating, and for everyone, this is a huge risk. Overall, I'm suggesting he's a fourth- or fifth-round pick in most leagues.

PAULINA: Huh! Interesting. So if you do draft Favre, you might want to handcuff him to Tarvaris Jackson, who we project will be available in the late rounds of your draft; could be a good value pickup. Got it, listeners? So, if I were in a scoring league, I'd be looking harder at Adrian Peterson than Favre based on what you're telling me, Edward.

EDDIE: That's probably a good way to go. We're projecting that 100% of Favre's passes will be to Peterson, based on the fact that 100% of Favre's passes were to him yesterday. Hey, when a guy's got the hot hands, what else are you going to do? Pick up some cheap points from the TD's, that's what.

PAULINA: But see, Eddie, I'm not in a scoring league. Touchdowns only count in the real game. What we care about in fantasy sports is yardage, right?  Boo-ya!  [EDDIE and PAULINA high five, turn to HOST.]

HOST:  [Coldly] That's my thing, Paulina, are you stealing it from me like you stole Trevor? [Awkward pause. HOST turns to camera, speaks brightly.] Coming up, we've got more insider tips from ASTN's crack fantasy projection squad, including this week's Tough Call, brought to you by Stinkpretty Cologne for Men. Today's Tough Call: Defense--Browns or Lions? Stay tuned! [To PAULINA, sotto voce:]  Homewrecker.

[Take-out music plays.]

August 19, 2010

Mission "Accomplished"

Today marks the withdrawal of the last "combat" troops fielded by the US in Iraq. The 50,000 "advisor" and "support" troops still there are still armed and dangerous if they were to be asked by the Iraqi government to "assist" in a combat operation.

Nevertheless congratulations are in order to the people of Iraq as they move closer to true autonomy and democratic self-government, and to the soldiers, diplomats, and elected officials who helped them get there. Iraq has been through an awful time, but it is better off now for it.
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Only $99,981,745 To Go

Thanks to Reader Maxwell James for pointing out this article, which lends a remarkable perspective to a matter which has caused so many people so much anguish recently.

If the Maggie Halberman/Ben Smith article is right, the Park51 project to build a mosque community-center-including-worship-area right on top of two blocks away from Ground Zero has so far raised a grand total of $18,255 towards its fundraising goal of a hundred million dollars.  A hundred million dollars sounds to my admittedly untrained ears like about the right amount of money to build a thirteen-story tower in lower Manhattan (including the land).  Eighteen thousand dollars sounds like it's enough to buy a refrigerator box on the upper West Side.

Opponents of the Park51 project would be better off just staying quiet about it and letting the project die an underfunded and unvetted death, instead of offering it free publicity.  Ah, but what fun would that have been?

August 18, 2010

The Only Thing People Get Convicted Of Is Lying

It seems like no one gets in trouble for doing bad things.  They just get in trouble for lying about it. Consider:
  • Al Capone, sent to Alcatraz not for running guns and booze during Prohibition, but rather for lying about how much money he made doing it.
  • Richard Nixon was almost sure to have been impeached for obstruction of justice, had he not resigned and been pardoned.
  • Then there's Bill Clinton -- it wasn't getting the blowjob that got him impeached and censured by the bar, it was lying about it under oath.
  • Scooter Libby, former White House aide.  Obstruction of justice; no charge of any underlying crime.
  • Kwame Kilpatrick, the former mayor of Detroit.  Lied under oath about sending text messages to his aide.
  • Mark Fuhrman, former LAPD cop involved in the first O.J. Simpson murder investigation.
  • Lil' Kim, the rapper.  Lied about her friends being involved in a shooting.
  • Marion Jones, the athlete.  Barry Bonds, too.  Lying about using steroids.
  • Martha Stewart, Wall Street maven and icon to anal-retentive WASP housewives everywhere.  Insider trading charges dismissed, only obstruction of justice claims were actually prosecuted.
  • Just yesterday, Rod Blagojevich.  Hung jury on 23 of 24 counts, and the only conviction the most obvious and transparent of all lies to the FBI, a lie which would not have been told had Blago followed the most rudimentary pieces of advice available from any criminal defense attorney anywhere -- don't talk to the cops.
  • And coming up soon:  Roger Clemens.  The Rocket?  Really?  Damn.

See, if you don't talk to the cops, they can't say afterwards that you lied to them.  Even if everyone already knows that you put a U.S. Senate seat up for auction on eBay.

Breaking: Favre Seen At Walgreen's

MANKATO, MINNESOTA -- ATSN Exclusive -- We have unconfirmed reports that Brett Favre was seen entering a Walgreen's earlier today in Skyline, Minnesota, and was seen heading towards the "Allergy Remedies" on aisle six.  Repeat, an unconfirmed report that Brett Favre entered a Wallgreen's drug store, near the Minnesota Vikings' training camp at Mankato State University, and apparently purchased a Claritin or a similar product.  So far, we have no official reaction from either Favre or the Minnesota Vikings concerning Favre's health or whether this apparent chronic attack of allergies has any effect on his ability to play.  Also, we have yet to learn what, if anything, Favre ate for breakfast and if this is a repeat of yesterday's "peppered eggs" sneezing incident.  Our investigation is ongoing.  Stay tuned to ATSN for all your sports news, we'll keep you up to date!

Nothing To Investigate

Here's a combination of the wrong reaction to the Park51 mosque controversy, courtesy of the Speaker of the House of Representatives herself, Nancy Pelosi:
The speaker questioned what was motivating the political opposition to the mosque, suspecting that the issue might be being "ginned up" by some to help Republican candidates.

"There's no question that there's a concerted effort to make this a political issue by some," she said. "And I join those who have called for looking into how is this opposition to the mosque being funded."

Madam Speaker, I'm with you when you say that the property owners have a right to build a mosque on their own property if they want, and I agree that at the moment, the only governmental bodies with any oversight over the issue are local.  I am not entirely sure I agree with the idea that this is a purely local concern because the Governor of New York is getting involved trying to broker a land swap and the Federal government could get involved if it chose to -- although I think that would be a bad idea.

But investigating people who feel differently than I do?  That's not just silly, it's sinister. 

While I disagree with people who oppose the mosque, they have every right to speak out on an issue that concerns them.  And by calling this a "right," that indicates that it may be exercised without sanction by the government.  Being investigated by the government is most certainly a sanction.  Congressman Lazio was wrong to call for investigation into the funding of Park51 because the owners have every right to build a mosque on their own land, and you are wrong to call for investigation into the funding of "opposition" because opponents of the mosque have every right to express themselves, too.

Pelosi seems taken aback at the breadth and uniformity of opposition to the mosque.  Apparently she sees some sort of vast conspiracy, or an intentionally-controlled network of public opinion influencers.  This is nearly as bizarrely paranoid  as the content of mosque opposition itself.  The explanation is simple and not malignant, Madam Speaker -- a lot of people feel the same way about this and many other issues, and the media marketplace has, through the process of experience, found that catering to those people is a way to generate profits.  The result may be an intellectual echo chamber and we might rue some of its effects on political discourse, but there is no vast intentional conspiracy behind it.  Even if it were acceptable to investigate this, an investigation would almost certainly reveal that there had been nothing to investigate in the first place.

I suspect, though, that Pelosi is merely jealous that there is no similarly potent phenomenon helping out her side of political discourse -- and if I'm right, do be careful what you wish for, Madam Speaker.

In any event, telling a private property owner that it can't build a house of worship on land where it is legal to do so is an infringement on both free exercise and free speech rights.  Telling people who find the building of that house of worship to be in poor taste and offensive to them that if they prove too politically effective at expressing themselves they will have the government pry into their finances is an infringement on their free speech rights. 

This is the United States America, damnit, a nation founded on the idea of freedom -- and it's high time people started remembering that.

August 17, 2010

More On The Brett Favre Story

[Cue music]

Anchor:  You're watching ASTN, the All-Sports Talk Network, and this is "False Start."  Here with us today is sports physiologist Jimmy Buckley, and Sterling Sharpe, Brett's former teammate and easily the best-dressed commentator on the NFL Network.  Let's start with you, Sterling.  Great suit!

Sharpe:  Thanks, man.

Anchor:  Now, Sterling, you were Brett Favre's teammate for a couple of great years back in the early 1990's.

Sharpe:  Yeah, that's right.  Thirty-four touchdowns Brett and me hooked up for.  We broke the single-season TD record, baby!

Anchor:  Boo-ya!  [Laughter, high-fives.]  Okay, let's get serious.  In that time, did you ever, you know, eat breakfast with Brett?

Sharpe:  Oh, sure.  We'd have breakfast before practice, before a game, or sometimes just hanging out.  And here's the thing that I think a lot of people on this story have overlooked.  Brett likes to eat salt and pepper on his eggs.

Anchor:  Salt and pepper, you say?

Sharpe:  Man, I seen him!  He just shakes that stuff on there like he don't care.  [Gestures wildly.]  Ketchup, too.  I went to Waffle House in Manitowoc with him one time back in '93.  Brett even had cheese on his eggs that day.  He was kind of a wild man back then, hah-hah!

Anchor:  Wow.  Okay.  Now, Jimmy, what's your reaction to this information?

Buckley:  Very interesting!  We can't be sure, because we haven't got this level of detail to know for sure if Brett did put pepper on his eggs this morning.  But if it's true that Favre made his initial sneezes right after eating eggs, this suggests that maybe it wasn't the eggs per se that made him sneeze, but maybe a stray whiff of pepper.

Anchor:  So if that's the case, then how does this affect his ability to play?

Buckley:  Well, that's where the antihistamine comes in.  You see, an antihistamine, sometimes called a "histomine antagonist," suppresses the body's reaction to allergic stimulants.

Anchor:  Stimulants, pills -- uh-oh!  Brett's had enough trouble with that sort of thing in his career!

Buckley:  No kidding.  So if he's using this --

Sharpe:  [Interrupts]  Whoa, whoa, whoa.  You guys are talking about a cold pill.  An over-the-counter thing.

Anchor:  What's your point, Sterling?

Sharpe:  Look, Brett went through a rough time back then, and he came out stronger for it.  That's the kind of guy he is, he always comes out tougher and stronger.  That's what I'm saying.

Buckley:  Well, the thing to remember here is that there are some kinds of histamine antagonists that have significant side effects, like drowsiness, dizziness, or even nausea, in some people.  [Sharpe shrugs, anchor nods.]  I can tell you that I wouldn't want to be out there playing football like that, for sure.

Anchor:  So if he suffers these side effects, that might affect his ability to perform?

Buckley:  Sure.  It slows him down, maybe just a fraction of a second, but --

Sharpe:  Man, a fraction of a second is an eternity out there on the field!  [Looks directly at camera.]  Brett, man, stay healthy.  For you and Deanna and those girls, not just all those fans out there pulling for you.

Buckley:  I should add, guys, that eggs are a really rich source of protein, and there's no doubt that for an athlete, especially of Brett's age, getting a lot of good healthy protein is an important part of an athlete's diet.  Now, all that cholestrol, I don't know.  But if it's pepper and not the eggs, that's more good news than bad.

Anchor:  Jimmy?  Does this affect whether Favre is gonna play?

Buckley:  Let me put it this way:  I'm in a keeper league, and Favre's been my guy since nineteen ninety five.

Sterling:  Sure, cause before that, you must have had me!  [Laughter]

Anchor:  Sterling, do you think he's going to play?

Sharpe:  Oh, yeah.  Brett's hungry, that's why he's eating eggs!  If his ankle is in shape, look out for Old Number Four.

Anchor:  Okay, thanks, fellahs.  Exclusively here an ASTN -- but wait, there's more.  Stay tuned for Molly McKleinquist's interview with a guy who used to be the mailroom clerk at Brett's agent's office, who says he's heard Favre sneeze like this in the past.  Is Brett Favre conjuring up old demons?  Find out after the break, only here on ASTN.  You're watching "False Start!"

[Music, fade-out to jock itch relief cream commercial]

...Yes, Readers, I'm getting a little tired of the inanity of sports radio.  I can't wait for the NPR pledge drive to be over and my research for fantasy football completed.

Comparative Religion: A Quiz

Following are forty passages excerpted from four holy books. One is the Torah and canonical prophets of the Hebrew tradition, what Christians call the "Old Testament." One is the collected Christian Gospels and epistles of Paul the Apostle, what Christians call the "New Testament." One is the Koran, Qu'ran, or however you want to spell it in the Latin alphabet, the holy book of Islam. And the last is the Book of Mormon.

Your challenge is to correctly guess the source of as many of the passages as possible, without using any reference like a Google search, from which holy book each passage comes. Obviously, if you use a reference you'll do very well, and I can't stop you.  So you're on the honor system here.

I have changed references to "The LORD," "the Father," and "Allah" to "God;" references to particular persons who are not themselves divinities with a generic "[prophet]", and all references to "infidels" and "Gentiles" to be "unbelievers." I have also updated archaic conjugations ("ye shall know them by their fruits") with modern phrasing.  Otherwise, the quotes are as they appear in at least readily-available version of the text in question.

Holy Text
Old Testament
New Testament
Book of Mormon
1. For six days may work be done; but in the seventh is the day of rest, holy to God; He who does any work on this day shall surely be put to death.        
2. You have also heard me when I have been cast out and have been despised by my enemies; yes, you heard my cries, and was angry with my enemies, and you visited them in your anger with speedy destruction.       
3. Who does a greater wrong than he who invents a lie concerning God and denies His revelations?       
4. If a man find a virgin girl, not betrothed, and lay hold on her, and lie with her, and they be found; then the man that lay with her shall give unto the girl’s father fifty coins of silver, and she shall be his wife.     
5. [God] teaches my hands to war, so that a bow of steel is broken by my arms.     
6. Almost all things are by the law purged with blood; and without shedding of blood is no remission.       
7. And [prophet] said unto the people, “You cannot serve God: for he is an holy God; he is a jealous God; he will not forgive your transgressions nor your sins.”       
8. And it shall come to pass, says [God], that the sword of my justice shall hang over them at that day; and except they repent it shall fall upon them, says [God], yes, even upon all the nations of the [unfaithful].       
9. Must you lust after men instead of women? No, but you are folk who act senselessly.       
10. And the husbands and fathers of those women and children they have slain; and they feed the women upon the flesh of their husbands, and the children upon the flesh of their fathers; and no water, save a little, do they give unto them.       
11. All that ever came before me [God] are thieves and robbers.       
12. As for they who do not believe, whether you warn them or warn them not it is all one for them; they believe not. God has sealed their hearing and their hearts, and on their eyes there is a covering. Theirs will be an awful doom.       
13. …[O]f the children of the strangers that do sojourn among you, of them shall you buy, and of their families that are with you, which they begat in your land: and they shall be your possession. And you shall take them as an inheritance for your children after you, to inherit them for a possession; they shall be your slaves for ever       
14. Choose not disbelievers for friends in place of believers. Would you give God a clear warrant against you?       
15. For he gave commandment that all men must repent; for he showed unto all men that they were lost, because of the transgression of their parents.       
16. For the unbelieving husband is sanctified by the wife, and the unbelieving wife is sanctified by the husband: else were your children unclean; but now are they holy. But if the unbelieving depart, let him depart.       
17. You shall be among them as a lion among the beasts of the forest, and as a young lion among the flocks of sheep, who, if he goes through both treads down and tears in pieces.       
18. He that believeth not shall be damned.       
19. He who doubts is damned, for whatever is not of faith is sin.       
20. I also will laugh at your calamity; I will mock when your fear comes.       
21. I am come to set a man against his father, and the daughter against her mother, and the daughter in law against her mother in law. And a man's foes shall be they of his own household.       
22. I will feed them that oppress thee, with their own flesh; and they shall be drunken with their own blood as with sweet wine; and all flesh shall know that I am [God].       
23. If a man abide not in me, he is cast forth as a branch, and is withered; and men gather them, and cast them into the fire, and they are burned.       
24. It is not lawful for you forcibly to inherit your brother’s women, nor put constraint upon them that you may take away a part of that which you have given them, unless they be guilty of flagrant lewdness.       
25. He who curses his father or his mother shall surely be put to death.       
26. One who attacks you, attack him in like manner as he has attacked you.       
27. Slaves, be obedient to them that are your masters according to the flesh, with fear and trembling, in singleness of your heart, as unto God.       
28. Slay the idolaters wherever you find them, and take them captive, and besiege them, and prepare for them each ambush.       
29. The fathers shall eat the sons in the midst of thee, and the sons shall eat their fathers.       
30. The show of their countenance doth witness against them, and doth declare their sin to be even as Sodom, and they cannot hide it. Woe unto their souls, for they have rewarded evil unto themselves!       
31. The young and the old lie on the ground in the streets: my virgins and my young men are fallen by the sword; thou hast slain them in the day of thine anger; thou hast killed, and not pitied.       
32. Men are in charge of women, because God had made the one of them to excel the other, and because they spend of their property. So good women are the obedient, guarding in secret that which God has guarded.       
33. …[E]ven their women did change the natural use into that which is against nature: and likewise also the men, leaving the natural use of the woman, burned in their lust one toward another; men with men working that which is unseemly, … they who commit such things are worthy of death.       
34. They shall die of grievous deaths; they shall not be lamented; neither shall they be buried; but they shall be as dung upon the face of the earth: and they shall be consumed by the sword, and by famine; and their carcases shall be meat for the fowls of heaven, and for the beasts of the earth.       
35. They that believe not in him shall be destroyed, both by fire, and by tempest, and by earthquakes, and by bloodsheds, and by pestilence, and by famine.       
36. We shall cast terror into the hearts of those who do not believe.       
37. Whomsoever of the [unbelievers] that would not enter into a covenant to support the cause of freedom, that they might maintain a free government, he caused to be put to death.       
38. If there come any unto you, and bring not this doctrine, receive him not into your house, neither bid him God speed. For he that bids him God speed is partaker of his evil deeds.       
39. God shall send them strong delusion, that they should believe a lie: That they all might be damned        
40. A prophet shall God raise up unto you, like unto me; you shall hear in all things whatsoever he shall say unto you. And it shall come to pass that all those who will not hear that prophet shall be cut off from among the people.       

For extra credit, you must correctly identify both holy texts in which this passage appears, word for word:
Every one that is proud shall be thrust through; yea, and every one that is joined to the wicked shall fall by the sword. Their children, also shall be dashed to pieces before their eyes; their houses shall be spoiled and their wives ravished. Behold, I will stir up the Medes against them, which shall not regard silver and gold, nor shall they delight in it. Their bows shall also dash the young men to pieces, and they shall have no pity on the fruit of the womb; their eyes shall not spare children
If all of these passages seem more than a little weird and morally objectionable, well, there's a reason for that:  every word of it, regardless of the source, is superstitious nonsense, the bulk of it based on the culture of the barbaric Bronze Age Middle East.  If you do believe in a God, give thanks to Her that you live in a culture and an era that doesn't actually takes this stuff very seriously.

The answer key, with citations, will be posted in the comments on Saturday.

Breaking Sports News

This just in -- Brett Favre was reputed to have sneezed five times in a row after eating scrambled eggs. According to sources close to the event, he later took an antihistamine. More on this important story as it develops.
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The Manufacture Of A Controversy

Allow me to point you Readers to an article at Slate Salon chronicling the evolution of the "Mosque right on top of two blocks from Ground Zero" controversy.  From its inception until less than four months ago, Cordoba House project was an interesting topic, non-controversial and accepted by the conservative punditocracy, until Pamela Geller and the New York Post ran stories with inflammatory headlines on May 6, 2010.  Particularly interesting is an interview in December of 2009 with Laura Ingraham:

I have to join Doug Mataconis in calling this a manufactured controversy, and a wildly successful one at that -- one which has trapped even the President in a political volte-face, despite the intellectual tenability of his position, and sparked false rumors, bought by formerly credible news sources, that the backers of the project have decided to move it elsewhere in the city.

If they could have been persuaded to relocate their project, well, that would be their decision and a victory for real dialogue.  Dialogue, however, is not what this sort of thing is about.  We are in the world of demagoguery, and the point of this issue is to make as much noise as possible.  Changing anything isn't the point, attracting eyes and ears is.

American citizens should be able to do what they like with their own property as long as they comply with pre-existing laws.  Period.  These people have complied with the law and should be able to build whatever they want on land they own.  Americans mostly recognize this, as Nate Silver points out:
Essentially, public opinion on this issue is divided into thirds. About a third of the country thinks that not only do the developers have a right to build the mosque, but that it's a perfectly appropriate thing to do. Another third think that while the development is in poor taste, the developers nevertheless have a right to build it. And the final third think that not only is the development inappropriate, but the developers have no right to build it -- perhaps they think that the government should intervene to stop it in some fashion.
Alas, we come up against the poverty of language when phrases like "should a mosque be built here" are used.  But let us not forget how the "middle" position came to exist -- at the hands of a small number of people, hungry to attract eyeballs, who decided to attack something that up until then had been non-controversial, an attack based on half-truths, xenophobia, and intentional ignorance of factual nuance -- one which turns a law-abiding American who cooperates with law enforcement officials and whose intent by all objective appearance is to guide his co-religionists down a meaningful path of peace into a fanatic Islamist sleeper agent and triumphalist intent on helping overthrow our government.  What we have really learned from all is is that Pamela Geller has better Kung Fu than Laura Ingraham -- and we have learned, once again, that fear is more powerful than love.

August 16, 2010

The Stay Order

In full, the Ninth Circuit's order granting the stay of the vacation-of-Prop-8 holding in Perry v. Schwarzenegger reads:
Appellants’ motion for a stay of the district court’s order of August 4, 2010 pending appeal is GRANTED. The court sua sponte orders that this appeal be expedited pursuant to Federal Rule of Appellate Procedure 2. The provisions of Ninth Circuit Rule 31-2.2(a) (pertaining to grants of time extensions) shall not apply to this appeal.

This appeal shall be calendared during the week of December 6, 2010, at The James R. Browning Courthouse in San Francisco, California. The previously established briefing schedule is vacated. The opening brief is now due September 17, 2010. The answering brief is due October 18, 2010. The reply brief is due November 1, 2010. In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing. See Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997). IT IS SO ORDERED.
We can read tea leaves into this all day and all night.  The grant of stay, does that indicate that the appellants demonstrated a probability of success on the merits?  If so, based on what?  When their standing is called into question by the order itself, how can there possibly be a probability of success on the merits?  Why the very expedited briefing schedule?  (My last ninth circuit case had a fifteen-month calendar to cover the same period this order sets out in four.)  Why phrase the standing issue in the form of an order to show cause?

The fact is the motion panel on the Ninth Circuit did not explain its reasoning.  The big caution I'd offer here, to people rooting for either side of the issue, is that the motion panel that made this decision is likely not going to be the same judges as the merits panel -- and the merits panel may not count for much either, since the case is almost certainly destined for en banc review.

Axe Man

The Wife and I took out some bushes from our front yard over the weekend and replaced them with flowering plants.  Taking out the bushes involved me chopping them out with an axe and then digging out the taproots with a garden spade.  The post-yardwork margaritas made me feel better that evening but alas, I've no ability to enjoy such a painkiller today at work.

Summertime Margaritas:

6 limes
6 tangerines
1 cup aƱejo tequila
1 oz. agave nectar
6 cups ice
Splash of Grand Marinier

Juice the fruit, add all ingredients to blender, drink.  Repeat as necessary.

Chinese Spam

Maybe all the people leaving comments in Chinese are really offering serious comments to the posts and I'm being unfair to delete them.  If that's the case, Chinese commenters, leave a comment without a link.

August 12, 2010

Stayability Of Prohibitive And Affirmative Injunctions

Here's some dense law for you -- a general rule of California law is that a prohibitive injunction is not stayed during the pendency of an appeal. Rubin v. American Sportsmen Television Equity Society, Inc. (1951) 102 Cal.App.2d 288, 290.  A "prohibitive" injunction is one that forbids the defendant from doing something, contrasted with a "mandatory" injunction which compels the defendant to do something.

To be sure, a clever lawyer can phrase any mandatory command in the form of a prohibition (e.g., "Defendants shall not fail to deliver the disputed property to the plaintiff,") so there is an issue about whether the effect of an injunction is prohibitory or mandatory.  The Perry case could go either way, as I see it.  The order in Perry v. Schwarzenegger is at least debatably prohibitive, in that the judge has forbidden the defendants from enforcing or implementing Prop. 8.  That effectively returns the law back to the way it was after the Marriage Cases were decided but before Prop. 8 won by a margin of about 600,000 votes in November of 2008.  The argument that it is mandatory would be that it effectively incorporates the Marriage Cases, which did contain a mandatory component requiring that the trial court issue orders that would compel county registrars to issue marriage licenses to same-sex couples.

Now, the Rubin case decides an issue of substantive California law and not a rule of Federal procedure. Federal Rule of Appellate Procedure 8 is silent on the issue of what orders are or are not stayable while an appeal is pending.  I've not had time to do the research to see if there is a cognate rule to Rubin in the Federal system.  But Rubin is interesting because it purports to articulate a substantive rule of law rather than a procedural one.

If the Ninth Circuit agrees that Rubin is substantive rather than procedural, then the Ninth Circuit is required under the Erie Doctrine to follow it and demand a showing of extraordinary and irreparable harm to the appellants if the prohibitory order of Judge Walker is not stayed pending appeal by way of an application for a writ of supersedeas.  Given that there is a substantial question as to whether the proponents -- the only ones whose appeal has even a chance of being recognized by the Ninth Circuit in the first place -- have standing at all, this would have to be some damn good lawyering by the proponents' counsel.

Article III Standing May Determine Status Of Marriage

Judge Walker has ordered that the stay of entry of judgment in Perry v. Schwarzenegger will expire at 5:00 p.m. on August 18.  That means at the start of business on August 19, 2010, California will once again be a same-sex marriage state -- unless the Ninth Circuit grants a stay of entry of judgment pending appeal.

Everyone involved has assumed that there will be an appeal, and in fact I think there will be one too.  But there is a question about that. 

The plaintiffs, as the prevailing parties who won everything they asked for, cannot appeal and would realize no advantage in doing so.

The named defendants will not appeal because they have chosen not to appeal -- whether rightly or wrongly.  Both Governor Schwarzenegger and Attorney General Brown have said that they do not wish to see the decision appealed and will not authorize an appeal. So whether they should or should be appealing, and whether they should or should not have fought on behalf of Prop. 8 at the trial court level, the fact is that they aren't going to appeal.

The Board of Supervisors of Imperial County have voted to attempt to appeal, either directly or by intervention.  Problem is, Imperial County was not a party to the lawsuit at the trial level, so it clearly lacks standing to appeal; what's more, it is a political subdivision of the state of California and therefore subject to the state's control and override.

Which leaves the question of whether the proponents of Prop. 8 -- the ones who actually mounted the sort-of "defense" of Prop. 8 at the trial court level -- have standing to pursue an appeal.  Apparently, although the standing issue was raised and addressed in the trial court proceedings, it was never resolved and the parties agreed to go forward with the trial on the presumption that the proponents had standing to appear.  This strikes me as a very strange procedure indeed.  Article III is clear and two and a quarter centuries of caselaw makes even more clear that in order to have a right to be heard as a litigant (and not an amicus) in a Federal court, you need to make a showing of some kind of tangible injury you personally have suffered.

That, in turn, is the crux of my confusion about the bitterness of opposition to same-sex marriage:  how is it that you are hurt if your gay neighbors get married?  Are you somehow less married than you were before that license issued?  Because it's clear that "I don't approve of your marriage" isn't enough.  And the question the Ninth Circuit will have to address is, how is it that Dennis Hollingsworth, Gail Knight, Martin Gutierrez, Mark Jansson and have been are hurt because the Registrar of the County of Los Angeles issues a marriage license to Paul Katamai and Jeffrey Zarrillo?

Now, let's say you're a judge on the Ninth Circuit.  Or a Justice of the Supreme Court.  On the one hand, a part of you is salivating over the chance to write an opinion that is guaranteed to be studied in law schools, analyzed in law reviews, and debated for years to come.  It's a chance to show the world how good you are at your job, a chance to make a meaningful statement and a significant impact on the state of individual rights in this nation.  But on the other hand, you know that a huge number of people are going to be super-pissed-off with whatever you decide, whether you rule for the plaintiff or the defendant.  You can't help but notice that Judge Walker has already been subjected to calls for his impeachment by some very sore losers.

You just might decide that you don't need that kind of a beating.  What better way to duck the issue than to issue a short ruling based on standing instead?  Punt on the merits and close the file -- simple, fast, and best of all, safe.

Now, I personally think that having permitted the Prop. 8 proponents to have a trial on the merits at all, Judge Walker effectively decided that Dennis Hollingsworth, Gail Knight, Martin Gutierrez, Mark Jansson and do have enough of an interest in the outcome of the case to confer Article III standing.  They should be allowed to appeal, and they should offer their very best arguments.  The system works best when both sides of a dispute offer full-throated advocacy for their desired outcome.  It also works best when the judges deciding the case do so fearlessly and based on the law, logic, and evidence, and without regard for whether their decisions will be politically popular.  And finally, the system works best when the loser is willing to accept an adverse result.

But there is no guarantee that either the Ninth Circuit or the Supreme Court will see it that way.

August 11, 2010

This Legend Looks To Have Some Reality

One of the "facts" being thrown around in the swirling debate about immigration is the phenomenon of "anchor babies."  The legend is that an illegal immigrant will come to the U.S. and have a baby here.  Because that baby is born within the geographical limits of the United States, the Fourteenth Amendment makes the baby automatically a citizen.  The parent is then typically allowed to stay in the U.S. to raise the baby, because we are a compassionate people and will neither exile a U.S. citizen based on the accident of her parentage nor split up a parent from her child.  Thus, the illegal immigrant is tolerated and remains in the country despite having broken the law to come here.

As this concept flew around the political landscape the past couple of weeks at fever pitch, I wondered to myself, "Is this real?  Is there enough of this happening to worry about in reality?"  I looked and looked and couldn't find statistics for it anywhere.  Tonight, though, it hit the front page of memeorandum and my question is answered:  yes, there is some meat on those bones.

According to a reputable polling agency, in 2008, roughly 8% of all babies born in the United States are born to parents who are in the country without legal authorization to be here.  Are these "anchor babies"?  The result of their birth may be that this is what they are.  I still question whether there is a massive intentionality behind the parents of these babies to have the children so as to secure their residence in the U.S.  It seems more likely to me that the parents came here, hooked up, and boom, there's a baby which is perhaps not unwelcome but also was not exactly planned for, either.  As the Pew Forum report points out, immigrants have a higher birthrate than citizens; as it does not point out but which ought to be fairly obvious, most of them come from heavily religious (generally RCC-dominated) cultures where contraception and abortion are discouraged, and education not valued or available.  These things contribute to higher birth rates.  They also contribute to large families; how many of those 340,000 babies born each year were the first baby born to the undocumented immigrant parents?

It's also worth nothing that in the same report, 16% of all babies born in the U.S. were born to legal immigrants.  That's nearly one in four babies born in the U.S. being born to non-citizen parents.  This confirms something I have long said, which is that as a nation we are dependent on immigration for our long-term survival; if you eliminate one-quarter of the live births from our demographics, our population would suddenly be shrinking very rapidly.  So for that reason, even though this is far from a majority, it is a large enough number that I think it deserves recognition.

Legal immigrants strike me as being much more likely to have intentionally conceived and given birth here for the purpose of creating an "anchor baby," because these tend to be better-educated people, and people who do not need to hide from the system because they are in compliance with it, and therefore have easier access to medical care, including contraception and abortion, as well as a higher likelihood to have a job and therefore the economic wherewithal to predictably provide for their children.  Legal immigrants also strike me as more likely to attempt naturalization than immigrants here illegally.  I've no proof of any of the suppositions I offer in this paragraph, by the way; these just seem like plausible conjectures to me.

I'm still not entirely buying into the "anchor babies" legend, because I'm not convinced that there is the systematic sort of intent that moatdigger politicians are insinuating is at play.  The parents come here for economic reasons, not for the purpose of having babies in our hospitals.  Nor do I think it is fair to attribute a deep understanding of our legal or Constitutional system to them -- they came here looking for jobs, nothing more.  But what I do acknowledge is that there is indeed evidence that a significant number of babies being born in the U.S. every year to parents who, according to the black letter of the law, ought not to be here.

The question is, are we so offended and scared by this phenomenon that we are willing to amend our Constitution to prevent it from happening again?  I say, let's have more citizen children of legal immigrants.  Keep America as the Cadillac destination point for ambitious, and in many cases talented, people from around the world.  Get their children integrated into our society, make Americans out of them, and we will be stronger and richer for it.

End The Invocations

My city has adopted a policy by which its City Council devotes a few minutes after calling the meeting to order for the delivery of an invocation -- an invocation which permits of sectarian invocations, such as "...and this we pray in the name of Jesus Christ."  In fact, that conclusion to a prayer, or words to that effect specifically identifying the speaker as Christian.

It's also a very open secret that a coalition of three large churches in the area is a significant part of the political machinery that has elected four out of five members of the City Council.  Perhaps unsurprisingly, almost immediately after a majority of church-elected members took office, the city adopted a resolution changing the city's motto to "In God We Trust," and posting lettering of that phrase behind the dias upon which the Council sits during meetings.  The Mayor paid for the lettering and for it to be posted with his own money.

When the city began doing these things, a woman spoke out against the invocation policy, and said that it was exclusionary and discriminated against non-religious citizens.  Two days later, her house was vandalized, with the phrase "In God We Trust" spray painted all over all sides of her house.  The police effectively ignored her.  The city, to my knowledge, did not assist her in removing the paint or replacing the damaged glass.  (The city does, however, promptly and efficiently remove gang graffiti from anywhere it is publicly visible, a policy of which I approve and from which I have personally benefited.)

With one exception, every single invocation delivered since this policy was adopted (and many delivered before it was adopted) has been sectarian, and I have no doubt whatsoever that this is just how the City Council likes it as the majority faction on the board all wear their religion on their sleeves.  The one exception was a ten-year-old Girl Scout who was put on the spot by the Mayor three minutes before she delivered the invocation; it wasn't clear to whom she addressed her remarks.

The sum total of all of this is that I have decided that my periodic interest in public service needs to be diverted somewhere outside the aegis of the city in which I live because, as an atheist and as someone who advocates a strong separation of church and state, my participation in the politics and government of the city in which I live would not be welcomed and may even be punished.

My city has been sued for adopting and implementing this policy.  I am not a participant in that lawsuit in any way, not as counsel, not as a plaintiff, not as a witness.  I could have done this and considered doing it, but decided that the risk of retaliation against me and my firm was too great.  If I were independently wealthy and my actions would not cause other peoples' livelihoods to fall into jeopardy, then I probably would have stepped up to the plate.

The City of Greece, New York had a policy not unlike that of my own city.  And a Federal judge just issued an opinion affirming that policy as consistent with the Establishment Clause, the second such District Court ruling of which I am aware.  The policy adopted by my city is modeled very strongly after a policy written by the Alliance Defense Fund, the same group that recently was utterly crushed in Perry v. Schwarzenegger, much to the chagrin of other Christian legal advocacy groups like Liberty CounselPerry, however, dealt with a different issue of law than the one this post addresses.

More to the point, Alliance Defense Fund also defended Greece, New York, and that is why the opinion upholding the policy is being touted as a great success by ADF, to the point that ADF has posted the opinion in Galloway v. Town of Greece for all to read.  The Galloway opinion relies heavily on the prior case upholding sectarian prayers, Pelphrey v. Cobb County (N.D.Ga. 2006) 448 F.Supp.2d 1357, affirmed, 547 F.3d 1263 (11 Cir. 2008).  There are a multiplicity of cases that reach the opposite result, many more in number than the Pelphrey line of cases,* but I want to address the adverse reasoning here rather than that which I find more favorable.

The policy in my city, in Pelphrey, and now in Galloway, all rest on the same basic concept:  the city assembles a list of eligible speakers from among local religious institutions -- usually referred to only as "churches," but I think it's fair to say most people understand a Jewish temple or synagogue to be a "church" or a Muslim mosque to be a "church," because there is a close equivalency there.  Nevertheless, it seems that the resulting list is very heavily dominated by Christian institutions.  Then, a staff employee of the city is directed to select a speaker from that list on a more or less random basis, with either formal or informal limits on the number of times a speaker from a particular institution can be invited to pray in any particular period of time.  (In my city, it's three times within two years.  At least two local religious institutions have already "maxed out" since I last looked at the issue).  The speaker may then deliver whatever invocation the speaker believes appropriate, including sectarian references at the speaker's discretion.  In my city, in Pelphrey, and in Galloway, the overwhelming majority of invocations given have been by Christian ministers of one kind or another, and have included explicitly sectarian Christian components.

Analyzing three of the leading governmental prayer cases from the Supreme Court (Marsh v. Chambers (1983) 463 U.S. 783; County of Allegheny v. Greater Pittsburgh ACLU (1989) 492 U.S. 573; and Lee v. Weisman (1992) 505 U.S. 577), the Galloway court found the following principles of law:
First, legislative prayer is acceptable in general, provided that the prayer opportunity is not exploited to proselytize or advance any one, or to disparage any other, faith or belief. Second, unless the prayer opportunity has been so exploited, courts should not “parse” the content of a particular prayer. Third, prayers in the Judeo-Christian tradition are acceptable, although legislative prayers that have the effect of affiliating the government with any one specific faith or belief are improper. Finally, the government may not compose official prayers or dictate the content of prayers.

I question the correctness of this distillation of the law.  The first and fourth principles are accurate and I do not quibble with them.  But in fulfilling the mandate that prayers not proselytize or advance any particular faith or belief, and in fulfilling the mandate that the prayers not affiliate the government with any one specific faith or belief, a governmental entity necessarily must analyze the content of the prayers.  The result is an inconsistency:  "You can pray, and pray as you like, except you can't pray in this way."

Put it another way:  Some faiths, particularly some sects of Christianity, mandate evangelism.  Can a city government, consistent with the Constitution as interpreted by the Galloway Court, undertake an analysis of the doctrines of a particular faith and should mandatory evangelism be found to be a doctrine of that faith, exclude speakers from the "list" of speakers?  If the answer is "yes," then that means the city is "parsing" the content of the prayer, or dictating its the content of the prayers.  (This may happen after the fact; a speaker may be invited to pray, allowed to give a prayer, and then the prayer is found to be evangelical in nature and the speaker is stricken from the list.)  If the answer is "no," then that means that the city is ignoring the legal mandate to not allow prayer that contain evangelical content.  There is no solution that is consistent with the Constitution.

In part, this isn't the Galloway court's fault.  It's the fault of the Supreme Court for using this reasoning in Marsh v. Chambers: "Congress has been holding prayers for a long time, and James Madison wanted to do have prayers in Congress, so it must be okay for a legislature to have some kind of prayer."  A principled application of the First Amendment would have reached the result of the four Justices who dissented in Marsh, which is "The First Amendment says what it says, and a legislature praying is an Establishment of religion, not the Free Exercise of the religious beliefs of its members."  Instead, five Justices ignored the plainly obvious fact that the legislators who feel the need to pray are perfectly free to do so on their own time.  They ignored the indisputable fact that Congress is not a church.

But in part, it is the Galloway Court's fault, because it fails to acknowledge that its construction of the law at once forbids and compel content-based analysis by a governmental body.  At minimum, Galloway fails to state that there are exceptions to the prohibition against content-based examination of prayers delivered at governmentally-sponsored functions.

Second, as applied, in the Galloway case, in the Pelphrey case, and as it's playing out in my own city, the result of the policy has always been that effectively only Christian speakers deliver these invocations.  Neither the Galloway nor the Pelphrey Courts have been bothered by this fact.  But they should be.  There seems to be no question that the "random sample" method of selection indeed produces a roughly random sample of representatives of houses of worship from the area sampled.  But by treating "houses of worship" as the units from which to sample, a disproportionately heavy representation of Christians is the inevitable result.

A look at the phone book in my city reveals about a hundred Christian churches, two mosques, one Jewish temple, one UU "church," and about four institutions whose major religious group I cannot identify but which are probably also Christians.  At least one invocation speaker whose church is outside of the city limits has delivered the invocation several times, but seeing as the pastor of that church is also a former Mayor of the city, perhaps that's an informal exception to the policy.  I put together a list of 25 invocation speakers and found that 24 of them were Christian and the 25th was that hapless and surprised (but brave) Girl Scout.  Within those 24 Christian speakers (I'm including the Mayor himself, because he gave an invocation "in Jesus' name") one was Catholic and 23 were Protestant.  Compare this result -- 96% Christian, 4% nondenominational Girl Scout -- to the likely demographics of the area.  A look at page 102 of the Pew Forum's survey of America's religious landscape reveals that California is 36% Protestant, 31% Catholic, 21% nonreligious, 2% Mormon, 2% Jewish, 2% Buddhist, and 1% or less of everything else.  My city may have some deviation from California's overall religious makeup, but if anything, it's going to deviate more heavily Catholic than anything else.

So the result may be proportionate as to houses of worship but it is not remotely representative of the demographics of the city.  I have to imagine the reason for this is the no-barriers-to-entry way Protestants have of simply starting up their own churches when they dislike doctrinal, attitudnal, or even administrative ways that other Protestant churches are being run.  Christian denominations with a stronger tradition of hierarchy like the RC or LDS churches strike me as more likely to have parishioners with a "we'll just take it" sort of attitude if they don't like how their pastors are treating them.  Maybe I'm way off base in saying that, but that's my impression.  And what's in the phone book shows that indeed, there are close to a hundred Protestant churches, some of which I see around town in beautiful, free-standing campuses of newly-constructed buildings, others in older class "B" and "C" commercial structures, some in strip malls, and some apparently run out of storage units or peoples' homes, and there are only three or maybe four Catholic churches in the city, although they are well-attended and seem to run Masses almost continuously from midnight to midnight on Sundays to service all their parishioners.

So if your selection criteria is based on houses of worship, you're going to be skewing the result heavily and disproportionately towards the Protestant Christians.  A Galloway-like policy produces a result that is not proportionate to the demographic makeup of the jurisdiction.

And all of this doesn't get us around some Supreme Court holdings that the Galloway Court, at best, gave short shrift to, if not outright ignored.  Most prominently, in Board of Education of Kiryas Joel Village School District v. Grumet (1994) 512 U.S. 687, the Court held that "government should not prefer one religion to another, or religion to irreligion." I suppose the use of the word "should" in Kiryas Joel was deliberate in that a majority of Justices on the Court would not sign off on the use of the word "may," but the principle is clear even if it is normative rather than prohibitive: religion itself may not be preferred to irreligion, consistent with the Establishment Clause. To be sure, the converse is true as well -- the government may no more favor irreligion than it may favor religion. It must be neutral.

Now, there are those who insist that the Free Exercise clause must be respected as well, that it is the flip side of the Establishment Clause and just as much a part of the rights of Americans with respect to religion.  The Free Exercise argument goes like this:  "Marsh v. Chambers tells us that we can have legislative prayer, and Marsh is still good law.  The Free Exercise clause tells us that if you're going to have a prayer, the government has no business saying what's in or out of that prayer, it's a matter of private conscience.  Ergo, if someone wants to give a sectarian prayer, even in a legislative forum, the government can't stop that from happening."

Which is why there should be no invocations at all. Not having invocations at all does not disfavor religion, it simply means that religious activities belong at a time or place other than the meeting of the City Council. The City Council, after all, is not a church. And most importantly, the city's failure to endorse a religion or engage in religious activity as an entity is not the same thing as suppressing the religion in question, or religion in general. A member of the City Council who wishes to pray and seek religious guidance before performing a governmental function is perfectly free to do so any may not be penalized for doing so -- as long as they do it on their own time and not on the city's time.

Just because you can have a legislative prayer doesn't mean it's a good idea.  Consider four possible policies:  A policy allowing sectarian prayers, a policy allowing some prayers but not sectarian ones, a policy of not having invocations at all, and a policy of formally eschewing religious belief.  Sectarian invocations and disavowal of religion are the least inclusive policies, and equally so, because they exclude constituents who do not share in the faith system of the speaker favored by the legislative body with the honor of delivering an invocation.  Non-sectarian invocations are still not very inclusive, because they still deliver a message that a particular speaker from a particular religious institution is favored, which means that others are disfavored. The most inclusive policy is to be silent on the issue and not have a period of time for invocations at all.  This also happens to be the policy which enjoys the strongest ground from a Constitutional perspective.

One suggestion I have seen somewhere is that atheists and other secular folks need to find a way to get on these lists and deliver secular invocations, or invocations critical of the policy of sectarian invocations. This seems wrong to me.  If it's wrong for the City Council to endorse Jesus (or Allah, or whatever other divinity you mention, but in practice it's pretty much always Jesus) then it's wrong to endorse anyone or anything.  An invocation endorsing atheism is as wrong as an invocation endorsing Jesus-worship or an invocation endorsing the moon cult.  And it's not OK for the city to endorse Jesus on Tuesday if the city turns around and then doesn't endorse Jesus on Thursday.  So I for one will not be signing up to deliver secular invocations (which would be unwelcome anyway and could subject me to economic retaliation).

What I would be willing to accept as a compromise would be a moment of silence.  If you wanted to pray silently during that moment of silence, more power to you.  If you wanted to use the time to meditate briefly, or gather your thoughts, or wait pensively for the moment to pass, that would be okay, too.  A couple of seconds to pause for breath and calm would probably be a good prelude to the sometimes fractious business of local government.  But what I can't accept is listening to my government, at any level, tell me that I'm not welcome to be a part of the body politic unless I worship the same deity that the Mayor does, and in the same way.

* Inter alia, Santa Fe Independent School Dist. v. Doe (2000) 530 U.S. 290; Board of Education of Kiryas Joel Village School District v. Grumet 512 U.S. 687 (1994); Doe v. Tangipahoa Parish School Board (5th Cir. 2006) 473 F.3d 188, vacated on jurisdictional grounds, 494 F.3d 494 (5th Cir. 2007); Wynne v. Town of Great Falls (4th Cir. 2004) 376 F.3d 292; Bacus v. Palo Verde Unified School District Board of Education (9th Cir. 2002) 52 Fed.Appx. 355; Cole v. Oroville Union High School Dist. (9th Cir. 2000) 228 F.3d 1092; Rubin v. City of Burbank (2002) 101 Cal.App.4th 1194.