28 February 2006

Finding Stolen Cars

It is well settled law that looking at a car's license plate and checking that against a list of license plates from cars reported stolen is fully constitutional. The ACLU has no problem with that kind of search.

Now, fast forward. Suppose you have a camera that looks at every license plate that wanders into its field of vision on a squad car. And, suppose that this camera is attached to a computer that can read the license plate. And, suppose that the computer automatically checks every license plate it sees against the list of cars reported stolen. Several companies now offer this technology and it works very well. The police using this technology catches ten times as many stolen cars as the pre-computer cops did, and the systems cost just $20,000 each (about 10% of what they cost two years ago).

Slightly, but only slightly more controversial, is the idea of mounting cameras a lamp posts and having them constantly search for stolen cars.

Car theft was already hard. The vast majority of stolen vehicles are eventually recovered (a far greater percentage than any other kind of theft) although often worse for wear. This makes it even more difficult.

And, it isn't the only car thief catching technology out there. Gun control opponents have always talked about the deterrent effect of the having a significant number of homeowners own guns, forcing burglars to play a lottery with their lives in those neighborhoods. It isn't well established, but it is certainly discussed. Now, car thieves face a similar, although more subtle lottery. It won't kill them, but it could send them to prison. It is the "lojack lottery." Often, it isn't even a true lojack, but a car navigation system. This isn't a big deal to the teenager who joyrides a few miles and dumps a car. But, it is a very big deal to a chop shop that steals dozens of cars a week or more and rips them to pieces for parts, or a car thief who steals cars intact and tries to alter the VIN numbers on them. A single lojack equipped car could expose and shut down an entire shop and result in the arrest of everyone there.

Bottom line: One of the most profitable kind of organized theft may be seeing its waning days due to technology.

The Jailhouse Track

Cindy Rodriguez at the Denver Post calls it the "Jailhouse track". Too often, instead of handling minor infractions within the school system, children in the Denver Public Schools are given tickets that send them to the juvenile court system. Too often tough on drug policies and prosecutorial discretion to try juveniles as adults without judicial approval brands kids as criminals. These kids often end up among the 25% of Latinos and 17% of black students in Colorado (compared to 11% of whites) who drop out.

The shocker statistic:

77 percent of inmates in the state and federal prisons across the nationa do not have a high school diploma, accordig to a 2003 report by the U.S. Department of Justice.

The statistic puts hard numbers on the notion of "high risk".

Jail is expensive. School is less expensive. For our society a policy of indifference towards drop outs, a focus purely on "opportunity" instead of outcomes, an attitude that your success or failure is purely your own problem, is a recipe for more crime, bigger prison bills and economic stagnation for a significant share of our population that could be helping this nation to thrive economically instead.

Not all chores are fun, and the chores that are least fun tend to get put off. It isn't fun to roll up your sleeves, spend money and butt into someone's life in an effort to get someone whose failing in school on track. It is much easier to focus on the fun opportuntities, the kids who are going to national science fars and honors programs and magnet schools. But, if you don't do the chores, things start to fall apart.

Not every kid needs to be on the college track, but no kid should be on the jailhouse track.

27 February 2006

The Cost of War Machines

This source has figures for total cost per unit (including R&D) of various major military systems:

Warplanes are expensive, not just to build, but also because of the tremendous research and development costs. Some current examples are; B-2 bombers which cost $2.1 billion each, C-17 transports are $329 million, C-130J transports are $117 million, V-22 tilt rotor transports are $110 million, F-35 fighters are $104 million, E-18 jammer aircraft are $96 million, F-18 naval fighters are $95 million, MH-60R special operations helicopters are $44 million, while the MH-60S model is $29 million each.

It notes that the per unit excluding R&D cost of the B-2 bomber was $400 million, and once you have sunk costs, there is good reason to look at the matter on a per future unit basis. But, the total costs are still pretty stunning, and "a growing trend is to make substantial improvement in aircraft over the two or more decades they are in service. This results in substantial R&D costs, which, makes new aircraft even more expensive."

Educational Standards Reality Check

Setting high standards for high school math and reading can be a tall order in an inner city urban high school. Why? Two examples from the linked material illustrate the problem:

Young low-income and minority children are more likely to start school without having gained important school readiness skills, such as recognizing letters and counting...By the fourth grade, low-income students read about three grade levels behind non-poor students.

Four years of school and they are finally reading at a first grade level.


High school math instructors, meanwhile, face crowded classes of 40 or more students—some of whom do not know their multiplication tables or how to add fractions or convert percentages into decimals.

Birmingham [High School] teacher Steve Kofahl said many students don't understand that X can be an abstract variable in an equation and not just a letter of the alphabet.

Birmingham math coach Kathy De Soto said she was surprised to find something else: students who still count on their fingers.

This is elementary school math.

This is not reality for middle class families. My first grader is reading simple readers and doing multiplication. The notion that a kid with several more years of school couldn't do this is almost unthinkable. But, having talked to a middle school teacher who works in a North Denver public middle school about the issues he faces on a day to day basis, I can assure you that this level of achievement is typical in many low income neighborhoods in Denver. Even if the teacher is phenomenal, and moves every child in the class up two grade levels in a single year during middle school, that child is almost certain to come out not proficient and several years behind grade level on the CSAPs or other measures of academic achievement.

Failing to acknowledge this reality is a recipe for failure.

Talk Radio in LA

Conservative talk radio is plummeting in popularity in LA, while liberal talk radio is surging in popularity. While Rush is still number one in talk radio land, the next four most popular talk hosts in Los Angeles are all Air America liberals. The next four most popular conservative radio talk show hosts follow the liberals in listenership.

Furthermore, Rush is losing ground, as are all of conservative talk show hosts, while all of the liberal talk show hosts are gaining ground.

Republicans See The Light On Criminal Justice

I had occasion to hear the second reading debate in the Colorado House of Representatives about a proposal to extend Colorado's "Make My Day Law", which broadens the circumstances where it is legal to use deadly force in your own home, to motel rooms and vehicles.

The actual law was a bad idea, although from the debate, it seemed that few people in favor of the law could recall what they were proposing (e.g. posing examples of people in their home facing a burglar that weren't impacted by the law).

But, this wasn't the interesting part of the debate. The interesting point was to hear so many Republicans go on at length about how horrible it was that someone who had a defense to the crime (in this case, self-defense), for which there was clear probable cause, would have to pay an attorney a five or six figure fee prior to be acquitted at trial. The proposed legislation didn't necessarily end this risk, but their concern should be much more general. Why should anyone who is ultimately not convicted of a crime be forced to pay his own attorneys fees, as is required under current law, when we claim to presume innocence?

Any criminal case is expensive to defend against, and in the case of an acquittal, the state, under existing law basically tells a defendant that it is his tough luck that he had to pay an attorney to defend him and spend however long in pretrial detention if he was unable to make bond.

It isn't as if there are a huge flood of acquittals out there. There were 711 felony trials in Colorado in 2005 (20 to a judge, 691 to a jury). There were 882 misdmeanor trial in Colorado in 2005 (321 to a judge, 561 to a jury). And, there were traffic and ordinance trials on top of those.

About 70% of criminal trials produce convictions, and the conviction rates are not materially different in cases where a public defender is assigned from cases with private lawyers (popular belief to the contrary notwithstanding). Thus, there were only about 214 acquittals in Colorado in felony cases in 2005. Moreover, about 80% of defendants in criminal trials were represented by the public defender. Thus, there were only about 43 felony acquittals at trial with private counsel in 2005 (out of 45,405 felony cases), and using a similar analysis only about 50 misdemeanor acquittals at trial with private counsel in 2005 (out of 72,608 misdemeanor cases).

If a statute provided compensation in lieu of actual attorneys fees of $30,000 for not convicted felony defendants (treating a hung jury as an acquittal) and $5,000 for not convicted misdemeanor defendants, it would cost about $1,540,000 a year to compensate acquitted criminal defendants in felony and misdemeanor cases statewide for a reasonable amount towards their attorneys fee expense. Thus, this would add about $4 to the cost of prosecuting each misdemeanor case and about $30 to the cost of prosecuting each felony case in the state. But, this is a small price to pay to give the presumption of innocence real economic meaning. Yet, to my knowledge, it isn't the way it is done in Colorado, although apparently a few states do allow for this kind of compensation.

Perhaps, if such a law is proposed, the proponents can read from the legislative history today on the floor of the House to Republican opponents of the bill.

Is The Child Custody System Biased?

The child custody system, in Colorado and every state, is rife with gender bias. This is nearly inevitable. Hand hundreds of judges nearly absolute discretion to make parenting time decision in a culture with ancient understandings about links between gender and child rearing which have a continuing influence outside the courtroom, and this is virtually inevitable. This happens notwithstanding gender neutral legal standards, the best efforts of judges and others involved in the system to act impartially with regard to gender bias and the best efforts of child and family investigators and other professionals involved in the process who are specifically trained to avoid biases.

It is not a universal bias. Biases vary from judge to judge, from CFI to CFI, and from sheriff to sheriff, and are frequently far more nuanced than simply being "pro-man" or "pro-woman".

But, the incident David Harsanyi discusses in his column today is not a case of gender bias. He discusses a case involving never married parents of a four year old child. One is an office worker. The other is a bank robber. The bank robber parent's parole is revoked and that parent brings along the child while on the lamm. The office worker parent is distraught and obtains an emergency custody order. The Larimer County Sheriff is less than cooperative stating that the child is not a missing person and that the order isn't effective until served upon the bank robber parent. The only element of this not terribly unusual situation is that the bank robber parent is the woman, and that the office worker parent is the man.

The rhetorical question Harsanyi asks is this:

Would a bank-robbing dad who had his parole revoked be allowed to snatch a 4-year-old child from his mom without being hunted down with vigor?

The answer, of course, is that the premise of the question itself is flawed and that the likely reaction would be gender neutral.

First of all, bank-robbing dads who have had their parole revoked are allowed by their fellow parent to snatch 4 year old children from their mothers often, for more or less exactly the same sort of reasons that the dad in this case allowed it. Parents sometimes place more trust in each other than is justified, in part, out of ignorance and in part out of a belief (not entirely wrong) that the law requires a certain amount of trust in custody matters.

Second, the notion that a bank robber who has violated parole is not being hunted down with vigor is laughable. I have absolutely no doubt that a warrant and probably an all persons bulletin are out trying to track down this parole violating mother. The fact that a missing persons bulletin hasn't been issued, doesn't imply that the Sheriff isn't trying to find the mother and in all likelihood, the child is with her.

Third, contrary to Harsanyi's idealized view of "how things work", law enforcement is notoriously uncooperative in dealing with anything that could be characterized as a civil matter, whether it is a criminal fraud or a violation of a custody arrangement that amounts to kidnapping. There are rare exceptions. I have on occasion seen law enforcement stretch to utilize their authority to deal with such cases and it is nice when it happens for the victim, but it is the exception, just as much in the case of mothers dealing with derelict fathers as it is in the case of fathers dealing with derelict mothers. Crabbed views of the law in this area are sadly, the norm.

Now, this doesn't mean that the sheriff's deputy couldn't have been more helpful or creative, or that seeking help directly from a district attorney or another law enforcement officer, as opposed to a sheriff, might not be fruitful.

Violation of a child custody order with intent to deprive another parent of custody is a felony in Colorado. (Section 18-3-304, Colorado Revised Statutes.) And, even if the new emergency custody orders aren't effective, it is likely that any previous set of custody orders was violated by this point, which would provide another grounds for issuing a warrant to apprehend this errant mother (not that this was necessary). It could be that the main problem in this case, however, is that there have never been any formal custody orders until this incident (even though Harsanyi's article seems to imply otherwise), until the emergency order issued in this case. If so, it likely was not either a violation of a child custody order, or contempt of court, or a non-custodial abduction (as defined for missing persons purposes), since there aren't firm guidelines in the absence of such an order.

The sheriff's department could have offered to attempt to serve the emergency custody order on the mother, at which point the order would be effective, even if she didn't receive notice of it in advance (as it is likely in the nature of a temporary restraining order). And, it would likely be possible to get the restraining order into a statewide registry. If the sheriff thinks that an TRO entered ex parte if not effective, even upon service of the TRO upon the person impacted by it, the sheriff is undertrained, not biased.

The Department of Social Services could likely be invoked to pursue an abuse and neglect investigation of the mother. Including your pre-school child in flights from bank robbery and parole violation charges probably constitutes abuse and/or neglect (although, honestly, I'm not sure which is a better fit). An investigator at such a department with time on his hands and a recognition that early action is often most effective, could contact relatives with whom the mother might have left, or might in the future leave the child. The Department of Social Services is also often more skilled at getting the wheels of justice turning with law enforcement than a private individual.

Perhaps both mother and child could be declared missing persons.

None of these suggestions are commonly suggested by a sheriff's deputy, and none of them resolve the fundamental problem, which is that no manner of law can be enforced against someone whom you cannot find. Finding people who have broken the law turns out to be a perennial problem in both civil and criminal law.

Indeed, the very question posed sounds very much like the complaint of a white kid with so-so grades and test scores who complains that affirmative action has allowed a similarly qualified black child to attend some selective college. The white kid is often right in concluding that, but for the factor of race, the black child wouldn't have been admitted. But, the white kid is also sadly deluded if he thinks that in the absence of affirmative action he would have any hope of entering that college himself. The people impacted by affirmative action are the kids with good grades and test scores, with somewhat boring personal backgrounds, who were wait listed and usually end up attending another, slightly less selective institution elsewhere.

In the same way, the problem in this case is not that women would be treated so much better, but that parents who have their children taken away from them by other parents are often treated poorly.

Reform Three Strikes Says LA DA

From here (free registration required):

In 1994, California voters overwhelmingly approved Proposition 184, the "three-strikes" law, which mandated a sentence of 25 years to life imprisonment for anyone convicted of any felony if that person had been previously convicted of two or more serious or violent felonies. The three-strikes law also doubled the penalty for anyone convicted of a felony who had been previously convicted of one serious or violent felony (a so-called second-strike case). Thousands of recidivists have been imprisoned under the second-and third-strike statutory schemes. . . .

At first, many prosecutors and judges felt that three-strikes sentences were mandatory in all qualifying cases, no matter what the nature of the triggering felony. In California, many crimes are punishable as felonies but are not labeled as serious or violent by the Penal Code. For example, a second shoplifting offense, stealing more than $100 worth of avocados, writing an NSF check for more than $200 and possessing a small amount of illegal drugs for personal use are all felonies that could trigger the 25 years to life sentencing consequence of the three-strikes law.

In 1996, the California Supreme Court ruled that judges retained discretion under the three-strikes law to disregard a prior strike in the interest of justice and impose a sentence more commensurate with the circumstances of the present offense. As a result of this decision, policies and practices changed in some counties and courts, but not in all. Thus, California has a system that can vary widely. . . .

The proposed act keeps the present two and three strikes penalties; keeps the definitions of "serious" and "violent" felonies that count as prior strikes; and provides that current strikes must be either serious or violent felonies or from specific crime categories, such as certain sex offenses, large quantity drug offenses, crimes where the defendant uses a firearm, was armed or intended to cause great bodily injury to another person. Current third-strike prisoners whose triggering felony would not qualify for a 25-years-to-life sentence under the act would be eligible to apply for resentencing at the court's discretion as a second strike offender.

Reform failed at the ballot by 53-47 in the last election, and this compromise is based on the belief that a future initiative would go farther than supporters of three strikes would like.

Judges On the Speaking Circuit

Justice Scalia's most recent speech in favor of gun possession (even the rifles on the New York subway he used to tote) don't help create public acceptance of the Court.

A federal judge speaking on issues that are likely to come before him invites appearances of bias when those issues come before the Court. This kind of near partisan politicing doesn't help the claims of those like Scalia that they are ruling based on law and not their own policy preferences.

At Least They're Not Your Cops

Some cities have cops that are lax. The City of Lincoln Park near Detroit, Michigan, has cops who encouraged participants in an illegal drag race to go ahead with their plans, reassured everyone that they wouldn't be arrested, and put a bet on the outcome. Mayhem followed, and in its wake, lawsuits, criminal and civil alike. The 6th Circuit's 2-1 decision, however, holds that this conduct was not a violation of a constitutional right.

More Reasons To Worry About UAE

The details are at T-Rex's Guide to Life.

Indirect involvement in 9-11, recognizing the Taliban (only two other countries did so) as the legitimate government of Afghanistan, helping Iran, North Korea and Libya try to get nukes, and thwarting FBI efforts to track Osama bin Laden's funds after 9-11 are among the concerns.

Liberal-Conservative Ranking of the CO Delegation

The National Journal has assigned liberal/conservative rankings to members of the House and Senate which were reported in the Denver Post, based on votes on several dozen key votes. The rankings (100 is the theoretical maximum conservative position, 1 is the most liberal theoretically possible liberal position).

U.S. Senate
Wayne Allard (R-CO) 90.8 (tied with Tom Coburn (R-OK) & Jeff Sessions (R-AL) for most conservative).
Ken Salazar (D-CO) 39.8 (centrist leaning liberal)

The full Senate rankings are here. The only Senate Democrats more conservative than Salazar are Mary Landrieu (LA), Kent Conrad (ND) and Mark Pryor (AR). Lincoln Caffee, the most liberal of the Republicans in the Senate rates 40.8. Joe Lieberman rates 34.3 (Lieberman is the most conservative Democrat on foreign policy, moreso than two Republicans, but is relativel liberal on social and economic issues). Former Republican Jim Jeffords rates a 22.2.

U.S. House
Marilyn Musgrave (R-4th CD) 90.8 (22 representatives are more conservative)
Joel Hefley (R-5th CD) 82.0
Bob Beauprez (R-7th CD) 73.3
Tom Tancredo (R-6th CD) 63.7 (55 Republicans are more liberal)
John Salazar (D-3rd CD) 40.5 (26 Democratic representatives are more conservative)
Mark Udall (D-2nd CD) 31.3
Diana DeGette (D-1st CD) 11.8 (46 representatives are more liberal)

Tancredo is a reliable social conservative, but leans liberal compared to his colleagues (according to the National Journal) on economic and foreign policy issues. Beauprez is listed as more liberal on foreign policy than on economic and social issues. Diana DeGette is particularly liberal on social issues compared to the economy and foreign policy. Salazar is relatively even across the board, as are Udall, Hefley and Musgrave.

Full results from the House here.

Bruce Defeated

The Colorado Supreme Court has ruled against Doug Bruce, in a suit in which he had alleged that a Colorado Springs ballot measure was invalid because it failed to comply with procedural requirements his ballot measure imposed upon attempted tax increases. The Colorado Supreme Court held that those requirements did not apply because a tax extension is not the same thing as a tax increase, and is not subject to the requirements that apply for tax increases.

Bruce, as is his custom, represented himself on appeal in the Colorado Supreme Court. As usual, this was a bad decision.

This decision also significantly narrows the scope of TABOR by providing that any time an existing tax is extended, the full tax increase requirements need not be followed.

Owens Goes Brain Dead On Iraq

Governor Owens of Colorado is a reliable piece of the Bush Administration echo chamber. His most recently idiocy has been to join the "civil war in Iraq is a good thing" meme which has also been promoted by Fox News.

Yes, there are hard core brain dead Republicans out there who will buy that line. But, one has to think that the RINOs that fill places like Jefferson County, and the moderates who hold to reins of power in the 7th Congressional District in Colorado are going to hear pronouncements like this and wonder if our Governor is one of the beneficiaries of a recent unanimous U.S. Supreme Court decision allowing the importation of hallucination inducing tea notwithstanding U.S. drug laws.

Call me an old fashioned thinking conservative when it comes to such matters, but normal people see peace and opposition forces reduced to using rocks instead of extremely powerful explosives, as a sign of success and outright massive slaughter accompanied by the destruction of mosques as a bad thing.

Internet Annoyance Challenged

A recently passed law that makes annoying people over the internet a criminal offense, with some clear unintended consequences that didn't apply in the context of telephones where the language was first used in a statute and upheld, is being challenged on First Amendment grounds in Nevada. I wish the Plaintiffs the best of luck.

Colorado Redistricting Suit Effectively Moot?

Colorado's Supreme Court ruled some time ago that Congressional redistricting may occur only once a decade in the state, and has also held that despite the language in the U.S. Constitution and Colorado Constitution that appears to leave this task to the legislature alone, that the Governor, in accordance with long standing practice, has veto power over redistricting maps.

A federal lawsuit pending in Colorado, however, seeks to overturn this ruling, and a recent U.S. Supreme Court case kept it alive for further deliberation. This suit hinges on the legislature only language to argue that the legislature can override a court drawn map.

As Colorado Luis notes, the GOP be hoping that they lose this federal lawsuit, however, because if the Democrats have control in 2006, they could very well restore the old map, or enact a new map even more favorable to the Democrats. Indeed, while Luis notes that under Colorado law a Governor could veto the plan, making this turnabout as fair play impossible in 2006 with Governor Owen's veto pen looming, I think it is equally likely that the premise of the federal lawsuit, if it prevails, could also invalidate the Governor's role in the redistricting process since it, like the Court's, is not legislative, and hence allow the Democrats to redistrict immediately to maintain the status quo without Gubinatorial approval.

This would indeed be a just reward for Republican dirty tricks in the redistricting area.

China In The U.S. Auto Market

China's Chery and Geely car companies are poised to sell their cars as bargain basement models on the U.S. market starting in 2008 or 2009. So far, their quality has been so lacking that they have been unable to meet U.S. crash test and emissions standards, but the firms are working on solving those problems.

More competition at the low end of the market is, of course, the last thing that embattled General Motors, with its Chevy division, Ford's low end models, and Daimler-Chrysler with its Dodge models needs. Korean manufacturers Hyundai and Kia have already been putting competitive pressure on this segment of the market, and major sources of U.S. automotive imports like Mexico, Canada, Japan, South Korea and Germany all have much higher labor costs than China does.

Octavia E. Butler Has Died

Octavia E. Butler, a noted science fiction writer, has died at the age of 58.

26 February 2006

Slow Spot Under the Dome

You know it is a slow time under the dome here in Colorado when the paper runs a story about the Capitol Dome. It is a nice edifice (complete with about $100,000 worth of real gold on the dome itself), but it certainly isn't news.

Worker Safety

Not all industries are equally safe (see Table 645). Ranked from most to least dangerous by industry, the industries appear as follows in workplace deaths per 100,000 employees:

Forestry, Fishing and Mining 31 (7% homicide)
Transportation and Warehousing 18 (9% homicide)
Construction 12 (3% homicide)
Waste Management 7 (10% homicide)
Wholesale Trade 4 (12% homicide)
Utilities 4 (9% homicide)
Real Estate 3 (38% homicide)
Government 3 (19% homicide)
Retail Trade 2 (57% homicide)
Manufacturing 2 (10% homicide)
Information Services 2 (13% homicide)
Leisure and Hospitality 2 (54% homicide)
Professional and Business Services (not waste management) 1 (25% homicide)
Finance and Insurance 1 (36% homicide)
Education and Health Services 1 (19% homicide)

Homicide is not exactly your typical workplace accident, but it is one of the two main sources of on the job deaths in the safer industries, the other being traffic accidents, which also, while clearly a hazard, are in many of the safer industries largely incidental to the main workplace activities.

Factories are no longer very dangerous, but mining, forestry, fishing, farming, construction and truck driving remain hazardous occupations. These industries account for half of the workplace fatalities in the nation, and even a much larger share than that of non-homicide, non-traffic fatalities. Many of these industries are dominanted by small businesses and some like farming, are exempted from many regulations that apply to other industries.

It may be time to reconsider how we address workplace safety that addresses these concerns.

Draft Dodging Soldiers

Two Korean-Americans in the U.S. Army, one a U.S. citizen, the other a legal permanent resident, are being pursued by South Korea as draft dodgers for failing to complete mandatory military service in Korea. The nations are currently at a bit of a legal impasse on their status. This is likely further complicated by the fact that military service in the U.S. puts you on a fast track to U.S. citizenship, thus, even the Korean-American soldier who is not now a U.S. citizen, will likely be one by the time his tour of duty is over. Citizenship, however, is apparently not a great concern to the South Korean draft board which has its own standards in such matters.

Korean military service is apparently more onerous than American military service, although hearing stories about their days serving from my father, who was an American military conscript, and my father-in-law, who served in the South Korean military conscript, it isn't obvious that this has always been the case.

Miscarriage and Stress

Women having above average (for them) levels of cortisol, a chemical associated with stress, in their systems, are about three times as likely to miscarry in early pregnancy than women with below average (for them) levels of this chemical in their systems.

The Complex Environmental Story of Diesel

Diesel fueled vehicles are generally more fuel efficient than those fueled with gasoline. Biodiesel offers additional benefits (although flex fuel ethanol vehicles offer similar environmental benefits for vehicles primarily designed to run on gasoline). As a result of this fact, diesel vehicles now make up a large share of the European market, although they remain rare in the U.S. after the smoggy diesel vehicles of the 1970s left a bad taste in Americans mouths.

But, a study in the Netherlands where diesel vehicels are common show that there are limits to these benefits.

A small percentage of "superpolluters" (here 5%) account for a high percentage (here 43%) of the pollution.

Most of those superpolluters turn out to be diesel fueled vehicles. Thus, while diesel vehicles are an environmental plus when they in good shape, diesel vehicles that need a tune up (or worse) can be a dominant cause of car based air pollution.

If we do make a major transition to diesel vehicels, therefore, it should be accompanied by more stringent emissions tests than those applied to gasoline based cars. Unfortunately, my understanding is that that Colorado is considering the opposite policy decision, loosening emissions testing for diesel powered motor vehicles

Bush Administration Hates Science Again

Hexavalent chromium, the chemical featured in the 2000 movie Erin Brockovich, is used in chrome plating, stainless steel welding and the production of chromate pigments and dyes.

It also caused lung cancer, but when industry sponsored study found out they hid the data. But, despite the fact that even the data that the industry admitted to shows that current legal levels are dangerously high, OSHA has refused to set health standards for exposure to the metal, and will now do so on Tuesday, February 28, only because a federal appellate court has forced it to act. The fact that OSHA is acting only when forced by a court to do so, is yet another example of the Bush Administration placing politics ahead of science.

About Prostate Cancer

A recent large scale study has shown that swift action is a better course than watchful waiting to deal with prostate cancer.

Median survival was more than 13 years for men who had surgery or radiation, but only 10 years for those who chose "watchful waiting," according to an analysis of Medicare and federal cancer registry records on nearly 50,000 men.

Looked at another way, men who were treated were half as likely to die - 59 percent of them were alive at the end of the study compared with only 27 percent of the others.

"Even when you adjust for all the differences between the groups, there still is a survival advantage to being treated," said Dr. Yu-Ning Wong of Fox Chase Cancer Center in Philadelphia. She reported the results Saturday at a conference in San Francisco.

Cancer of the prostate, a gland at the base of the penis that makes seminal fluid, is the most common major malignancy in American men. Each year in the United States, there are more than 232,000 new cases and 30,000 deaths from it. Worldwide, there are 680,000 cases and 221,000 deaths. . . . Wong's new study looks at men older than 65 diagnosed in the 1990s with small or not very aggressive tumors confined to the prostate. Within six months of diagnosis, 14,560 chose watchful waiting and 34,046 had surgery or radiation.

After an average of 13 years of follow-up, she compared their survival, taking into account differences in age, tumor size, general health and other factors.

"Even among the men aged 75 to 80, there still was a benefit to treatment," she said.

A study has also found a link between the combination of a virus and a genetic defect with prosate cancer. The virus had previously been linked to cancer in mice, but not in humans. A viral link could both guide treatment of, and simplify detection of prostate cancer.

Torture Is Not A Political Question

It is appalling that a U.S. District Court has held that a decision of a U.S. official to knowingly send someone to a situation where they will be tortured is a political question upon which it will not grant relief. Let's hope that higher courts will overrule this unprecedented willingness to ignore American violations of human rights.

Traditional Remedies That Don't Work

The Rocky Mountain News helpfully recaps a variety of traditional remedies that government researchers have found do not work.

Last week, major government-funded research indicated that two wildly popular arthritis pills, glucosamine and chondroitin, did no better than dummy pills at relieving mild arthritis pain.

Earlier this month a study revealed negative results for saw palmetto to treat prostate problems; last July, ditto for echinacea and the common cold. Those followed similar disappointments for St. John's wort to treat major depression, and powdered shark cartilage for some cancers.

Of course, just because science proves that traditional remedies don't work, it doesn't follow that the public will listen.

Ben Pratt, a spokesman for the General Nutrition Centers, a national chain of stores that sell nutritional supplements, said sales of echinacea remain strong and were not affected by last summer's negative study.

You can also bet that stores that sell herbs are full of sales representatives and brochures touting the health benefits of echinacea, and that the advice that they offer to customers doesn't disclose the scientific studies to the contrary.

24 February 2006

The War On Terror Litigation

Slate recounts at some length the various mendacious litigation strategies of the Bush Administration in defense of its war on terror. The Courts suffer the adminstration's arguments for reasons that appear to have far more to do with politics than the law.

Fair Share Health Care Dead In Colorado

A fair share health care plan for Colorado is dead in committee for the sesson for reasons that remain unclear (the official stance is that further study is needed, but this almost certainly is only a half-truth). The bill would have made large employers like Wal-Mart pay a minimum percentage of their payroll for health insurance. A similar bill passed in Maryland.

Iraq War Mistakes

I'm not the only one who says that insufficient troop levels early on in Iraq and a failure to establish law and order immediately upon taking Baghdad were critical mistakes in how the Bush Administration conducted the Iraq War:

Ambassador L. Paul Bremer, administrator for the U.S.-led occupation government until the handover of political power on June 28, said he still supports the decision to intervene in Iraq but said a lack of adequate forces hampered the occupation and efforts to end the looting early on.

"We paid a big price for not stopping it because it established an atmosphere of lawlessness," he said yesterday in a speech at an insurance conference in White Sulphur Springs, W.Va. "We never had enough troops on the ground."

In a Sept. 17 speech at DePauw University, Bremer said he frequently raised the issue within the administration and "should have been even more insistent" when his advice was spurned because the situation in Iraq might be different today. "The single most important change -- the one thing that would have improved the situation -- would have been having more troops in Iraq at the beginning and throughout" the occupation, Bremer said, according to the Banner-Graphic in Greencastle, Ind.

. . . .

Prior to the war, the Army chief of staff, Gen. Eric K. Shinseki, said publicly that he thought the invasion plan lacked sufficient manpower, and he was slapped down by the Pentagon's civilian leadership for saying so. During the war, concerns about troop strength expressed by retired generals also provoked angry denunciations by Defense Secretary Donald H. Rumsfeld and Gen. Richard B. Myers, the chairman of the Joint Chiefs of Staff.

In April 2003, for example, Rumsfeld commented, "People were saying that the plan was terrible and there weren't enough people and . . . there were going to be, you know, tens of thousands of casualties, and it was going to take forever." After Baghdad fell, Rumsfeld dismissed reports of widespread looting and chaos as "untidy" signs of newfound freedom that were exaggerated by the media. Rumsfeld and Bush resisted calls for more troops, saying that what was going on in Iraq was not a war but simply the desperate actions of Baathist loyalists.

The Case For Medical Liability Judgments

I've got civil procedure reform on the brain today for some reason. So, here's another idea.

In your typical personal injury case, a very large part of the litigation cost involves an exhaustive delivery of medical records by the injured person, to the person whom they wish to hold liable, often accompied by review of those records on both sides by medical professionals. This almost always is primarily directed at the extent of a defendant's liability for the injuries allegedly caused. Frequently, expert testimony is necessary, at great expense, about the anticipated future costs associated with the injury.

The parties must undertake this expensive and time consuming enteprise, prior to trial, before they even know if there will be a finding of legal liability.

The issues involved in the proper amount of damages for medical expensives are often document heavy, expert testimony driven, and involve uncertain assessments about the future.

Why not have a trial, present much more limited medical evidence devoid of any testimony about the associated cost of the care, and have a jury rule on:

(1) The liability of the parties;
(2) damages other than medical expenses; and
(3) whether or not any physical injuries were incurred as a result of the accident.

If there was liability and there were physical injuries, in addition to damages, the judgment would include a finding of liability for all medical expenses caused by the accident, already arisen or arising in the future (or some percentge of them), that would benefit both the injured party (in the case of out of pocket expenses) and anyone else subrogated to an award (in the case of insured parties). The parties could, at that point, then enter into settlement discussions on that narrow issue, and if they could not agree could have one of more hearings in court on causation and the cost of medical care already incurred.

With less discovery necessary and fewer issues to prepare to go to trial upon involved, cases could go to trial sooner (while witnesses recollections were more fresh), the cost of litigation up to the point of trial would be far less, reducing the amount of gamble of litigation investments associated with the current system, and settlement after that point could take place from a basis of a fact based, jury determined foundation, rather than in the shadow of what a jury might do in a case.

What Kinds Of Cases Go To Civil Jury Trials?

The Facts

A national sample of civil jury trials breaks down the cases by type. About 78% of civil jury trials are in "tort" cases, most of which involve physical injuries, shown below by type of case (with a percent of the total number of all civil jury trials in that kind of case):

Automobile Accidents 31.98%
Dangerous Premises 16.10% (e.g. slip and fall cases)
Medical Malpractice 11.39%
Intentional Torts 3.64% (e.g. civil damages for assault)
Product Liability 3.06%
Toxic Substances 2.08%
Professional Malpractice 1.52% (other than medical)
Slander and Libel 0.54%
Other Tort or Unknown 7.68%

Civil jury trials making up 19.2% of the total number involve people in contractual relationships with each other. About 10.41% of the total number of civil jury trials involve suits between buyers and sellers, about 2.83% involve employment cases, about 2.68% of the total number of civil jury trials involve fraud, about 1.21% involve leases, about 0.06% involve mortgages, and about 2.04% involve other kinds of contract cases.

About 2.4% of jury trials are in real estate cases, three-quarters of which are suits to determine the fair market value of property seized by eminent domain by a government agency (about half of the rest concern disputes over who owns real estate). About 0.38% were incapable of being classified.

If Colorado is typical of the national pattern (I suspect it isn't that far from the national average) this means that 83% of jury trials are criminal (we know this), 13% of jury trials are in tort cases (about 260), and 4% of jury trials are in other kinds of civil cases (about 83 per year).

So, how often do different kinds of cases go to juries:

* Civil Tort in General Jurisdiction Court 423 per 10,000 cases (based on 6,142 such cases per year and 78% of 334 civil jury trials).
* Felony 150 per 10,000 cases
* Misdemeanor 80 per 10,000 cases
* Traffic 20 per 10,000 cases
* Non-Tort Civil Cases in General Jurisdiction Court 17 per 10,000 cases (excluding domestic, juvenile, mental health and probate cases).
* Civil Cases in Limited Jurisdiction Court 1 per 10,000 cases

The jury trial rate in felony cases also is likely quite different between more serious cases (where the jury trial rate is likely to be higher) and less serious ones (where the jury trial rate is likely to be lower).


The jury system works pretty well in criminal cases (and quasi-criminal parental rights termination cases), where it provides a check against prosecutorial excess, and in personal injury cases, where it provides a workable way to determine issues such as a fair value for the pain and suffering experienced in an accident. Both typically involve isolated incidents where there the events are physical, rather than happening primarily on paper. Physical injury torts also rarely involve counterclaims against the plaintiff, making them relatively straightforward. And, physical injury torts very frequently involve disputed issues of fact regarding both liability and damages which can only be resolved by a jury, so deferring all decisions in these cases until a trial in those cases makes a great deal of sense.

The role of a jury in eminent domain cases, where it insulates individuals from government power in making a determination about the intangible issue of fair market value, is also a narrow, but useful situation in which to have a jury trial. Here, the jury trial is always a trial on damages only.

But, there is a heavy price to be paid for the right to a jury trial in other kinds of cases. They are very rare, and they make it impossible, for example, to resolve a single key factual issue that could resolve a case, like whether or not a contract was formed, prior to trial on every issue in the case that will be the final and only say in the action, even though if there is a trial it will be before a judge, rather than a jury. In contrast, something more like the civil law system, where cases are resolved in a series of hearings before a judge in a less formal setting on a small number of issues at a time, could resolve cases with reference to the facts, considerably more efficiently by the same decision maker you would have at trial.

The procedural complexity and administrative issues involved in a jury trial right in limited jurisdiction civil cases is even greater, as 99.99% of them don't end up going to jury trials, and the amount in controversy is generally small in comparison to the governmental and party costs of conducting them (including hidden costs like the need to have court rooms with jury boxes even in courts reserved for civil matters that almost never use them).

There is neither a federal, nor in Colorado, at least, a state constitutional right to a jury trial in civil cases. Indeed, there isn't even a statutory right in the state of Colorado to a trial by jury in a civil case. Jury trials in civil cases exist by virtue of court rules only, and could be abolished in whole or in part by the Colorado Supreme Court at any time. In practice, under this rule, Colorado follows the elaborate 7th Amendment jurisprudence developed in the federal courts, involving long since abolished distinctions between claims that are tried in courts sitting in equity and courts sitting in law in the late 18th century.

We should seriously consider replacing the existing jury trial right with one that allowed a civil jury trial only in general jurisdiction court cases alleging physical injury to a person (or death) or defamation (due to the difficulty of calculating damages), and in cases where the suit is brought by the government against an individual in a uniquely governmental capacity (e.g. eminent domain, termination of parental rights, or quasi-criminal civil cases such as traffic and ordinance violations). If there was a strong political impulse in support of it, fraud cases might be added to the realm of jury trials, on the theory that juries are good judges of witness credibility. These cases would be tried in a manner similar to under our existing rules.

But, we should abolish the jury trial right in civil cases brought in limited jurisdiction courts, and in all other cases in general jurisdiction courts, and then should radically overhaul the rules of civil procedure in such cases in a manner that reflects the fact that the judge will be the ultimate trier of all issues of fact and law in the case.

The vast majority of cases where the jury trial right is important would be preserved, but the bright line rule would greatly simplify the legal doctrine that goes into a determination of that right, and the procedural benefits in the vast majority of civil cases (mostly commercial cases) which have no realistic change of doing to a jury trial could be significant.

For example, rather than having discovery (which accounts for up to 90% of the cost of litigation) before trial, the parties could have a preliminary hearing, similar to that found in a criminal case, and the judge could make findings of fact based on that hearing, and then, discovery could be allowed only on the issues where the judge finds that further evidence would be necessary or helpful or might reveal facts not available to the parties based on arguments made by the parties at the preliminary hearing.

If, for example, a judge in a breach of contract case, found at a preliminary hearing that the existence and terms of the contract were clear, despite a non-frivilous argument of one of the parties that the contract was not valid, and also finds that it was clear that the contract was breached, discovery after the hearing and prior to a final hearing in the case might be limited to damages issues. And, the issues decided at the preliminary hearing would not have to be retried again at a final hearing in the absence of newly discovered evidence on a particular point. The active case management urged by a plethora of judicial rule reformers over the years, which has never caught on due to the constraints imposed by a jury trial oriented set of procedural rules, might finally become an organic part of the process (in much the same way that almost every divorce has both a temporary orders and a permanent orders hearing).

Likewise, evidence rules could be relaxed in this class of cases, and a judge could simply tell the parties if he does or does not find hearsay sufficiently reliable for him to make a decision upon in a particular instance, or if he finds a matter to be relevant. Encouraging more questions and answers between judges and parties in these kinds of cases would make processing them much more efficient, because the parties wouldn't feel compelled to offer excessive evidence on an issue the judge has already mentally determined that the evidence already offered resolves.

Prosecutorial Case Loads

I came across some statistics on the case loads of prosecutors in Cumberland County, Maine today. The numbers are, in my experience, pretty typical of the national pattern and a higher than most people realize. I'll share them here:

Misdemeanor Division handles all civil infractions and misdemeanor crimes except domestic violence and juvenile cases. Each ADA is assigned to one or more police departments. The five prosecutors, along with six legal interns (third year law students) and support personnel handle about 20,000 cases per year.

Felony Division attorneys handle all felony cases. Cases are assigned to a specific attorney when we first get involved in the investigation, irrespective of police department. Each attorney handles about 200 cases per year

Domestic Violence Unit handles misdemeanor and felony domestic violence cases. Domestic violence has been called “public enemy number one.” These cases are very sensitive because the perpetrators are often the spouse, former spouse, or significant other of the victim. We established a Domestic Violence Unit in order to give these cases more attention by attorneys and victim assistants who are specially trained and dedicated to handle these cases. The Unit handles 1200 cases per year.

The Juvenile Justice Division handles all cases involving offenders who are younger than 18 years old. Here the focus is on rehabilitating the offender so all cases are given extensive attention. Each prosecutor works with the defense attorney, the probation department and other agencies involved with the juvenile. We attempt to come up with the best possible plan for the juvenile while considering the victim’s concerns and public safety. Unlike court proceedings involving adults, proceedings involving juveniles are closed to the public except in felony cases or if the juvenile has a certain history. Each ADA handles 250-300 cases each year.

Assuming that combined salary and staff expenses of a District Attorneys office are about $100,000 per year per attorney, a fair guess, the average attorneys fee expense for a felony prosecution is about $500, and the average attorneys fee expense of a misdemeanor prosecution is about $25. This is incredibly cheap. Finding a private criminal defense attorney that will represent you in a misdemeanor DUI case for less than $5,000 is very rare. A typical felony defense from a private criminal defense attorney costs several tens of thousands of dollars.

Of course, unlike a private criminal defense attorney or a lawyer in a civil case, the District Attorney's office has all of the law enforcement officers in their district working to gather evidence for their cases (in a manner not unlike the solicitor-barrister system in England, where the law enforcement officers are both solicitors preparing cases and out enforcing the law), and they settle a great many cases more leniently than they would have to, in order to clear their case loads.

23 February 2006

Body Part Thieves

The television here at Avianos this morning is noting the recent arrests of a group of people who were stealing body parts from funeral homes and selling them to tissue banks. Without a doubt this is illegal, non-consentual, and a source of great emotional harm to the families of the persons whose body parts are stolen if the theft is discovered.

But, as crimes go, I'd argue that the harm to society is far more modest than most kinds of theft. To the extent that the families of the persons whose body parts were stolen didn't discover the thefts (and in the ordinary course there would be no way for them to discover this absent an extremely unusual exhumation), they would suffer no economic or emotional harm.

Furthermore, unlike the purchaser in a drug deal, the person who ends up receiving those tissues is undoubtably much improved. Indeed, those tisues could actually save someone's life. Even an ordinary thief, like the ones who twice stole my car stereo this summer, almost always do more harm to the victim than they gain. The radio thefts from me this summer netted the thieves about $40 total, according to my insurance expert's recounting of law enforcement testimony. But, the harm to me was about $1,200, plus about eight hours of lost work all told dealing with insurance companies, body shops and rental car companies. In contrast, tissue thieves generally enhance the value to society of what they steal.

So, here's hoping that while these thieves are punished, because they have committed a crime, that the punishment will be more lenient than another crime of comprable economic value.

Avianos Coffee

This morning I’m blogging from Aviano’s coffee here on Lincoln Avenue in the Beauvillion. The accommodations are swank and presentation is impressive. The Wi-Fi connection has me connected to you.

When I stopped by yesterday afternoon, a group of young foreign visitors to our fair cit were eagerly discussing the Olympics as they watched it on a flat screen TV in the shop. Today, one table was full of state legislative players discussing strategy on a pending bill.

Their grand opening is tomorrow. See the Mile High Buzz website in the sidebar for more details.

22 February 2006

The Blackberry Patent Case

I am not a patent lawyer. I know how long a patent lasts and some other details typical of many non-patent lawyers and lay inventors, but I'm not expert. But, I still say that when the law permits an injunction to issue based upon patents that are very likely invalid (in one case, finally so found by the PTO and in four other cases, preliminarily so found), as is the case in the Blackberry case, that something is deeply wrong with the law.

I also think that the maker of Blackberry should be able to seek restitution of amounts it has paid, if any, to the firm that won patent claims against it, when those patents are invalidated.

Finality can go too far. It is unconscionable to have laws that keep the innocent in prison, and it is unconscionable to allow the results of a civil action that found a violation of a patent to stand, if that patent is indeed, found to be invalid.

Illegal Immigrants Still Pay Taxes

Americans believe that undocumented immigrants are exploiting the United States' economy. The widespread belief is that “illegal aliens” cost more in government services than they contribute to the economy. This belief is undeniably false. “[E]very empirical study of illegals’ economic impact demonstrates the opposite . . . undocumenteds actually contribute more to public coffers in taxes than they cost in social services.” . . . each year undocumented immigrants add billions of dollars in sales, excise, property, income and payroll taxes, including Social Security, Medicare and unemployment taxes, to federal, state and local coffers. Hundreds of thousands of undocumented immigrants go out of their way to file annual federal and state income tax returns.

Yet undocumented immigrants are barred from almost all government benefits, including food stamps, Temporary Assistance for Needy Families, Medicaid, federal housing programs, Supplemental Security Income, Unemployment Insurance, Social Security, Medicare, and the earned income tax credit (EITC). Generally, the only benefits federally required for undocumented immigrants are emergency medical care, subject to financial and category eligibility, and elementary and secondary public education.

From the Tax Profs Blog

Mandatory Credit Counseling is Pointless

The bankruptcy law that effect on October 17, 2005 requires credit counseling for everyone who files for bankruptcy. But,

[A] study, which surveyed six major credit counseling firms dealing with 61,335 bankruptcy filers since Oct. 17, showed that only 3.3% of people in the study were eligible for a debt management plan and could avoid filing bankruptcy.

About 79% of the filers in the study:

were seeking bankruptcy due to circumstances beyond their control, defined as emergency medical expenses, loss of employment, higher minimum payments on credit cards, change in marital status or other unexpected events.

Rather than requiring credit counseling for everyone, the law should require, after filing, but prior to discharge, credit counseling for people whose need to file bankruptcy arose from poor budgeting and personal financial management, with debtors allowed to offer alternative approved reasons (such as emergency health expenses, casualty or theft losses, loss of employment, change in marital status, liability for an accident, professional liability, or lack of business success), if they qualify and wish to skip credit counseling.

Hat Tip to Daily Kos diarist MonteLukast.

Federal Sentencing Guidelines On Violent Crime

The U.S. Sentencing Guidelines (which are now advisory only after the Booker case) are incredibly harsh, for example, compared to the states, when it comes to drug cases, as is the federal criminal justice system generally. But, the guidelines, and the federal criminal justice system generally, are considerably softer than state law when it comes to dangerous violent felons.

Case in point: The Bad Marriage case (first court decision here).

Mr. Bad Marriage (he is a Native American and this is his real name), while on release from jail on a misdemeanor matter to attend an AA meeting, brutally beat his ex-girlfriend to a pulp. He was also accused initially of anal rape, but those charges were withdrawn when the girlfriend refused to cooperate and he pleaded guilty instead to assault causing serious bodily injury.

He had 95 prior convictions (35 in state court and 60 in tribal court), mostly for misdemeanors for which he served little or no jail time, steadily from the time he turned nineteen to the time he was convicted of his current crime, a 14 year period. At least one of the prior convictions was for felony burglary (in 1989), four were for simple assaults, a couple dozen were for minor dollar value shoplifting and trespassing incidents. Several dozen convictions were for disorderly conduct and public drunkenness.

In Colorado, this would be a second degree assault, a class four felony, for which the normal presumptive sentencing range is two to six years in prison and three years of parole. But, this crime would be classified as a crime of violence, bringing the range from five to sixteen years in prison, and forbidding the imposition of a mere fine, as a result of three different sentence enhancement provisions. Colorado law would not change this range at all based on his prior criminal history.

The average sentence for this crime in Colorado is 6.2 years, but it is likely that Mr. Bad Marriage would have received a significantly higher sentence within the five to sixteen year range, given the outrage of the trial judge at the brutality of the event (including a likely belief that this may really have been a rape, despite the fact that the charge was withdrawn), his long criminal history (even though it is not a formal aggravating factor in determining the sentencing range), his habit of preying on the defenseless, his lack of remorse, and what the judge thought was a likelihood that he would reoffend with another violent crime.

The sentencing guidelines recommendation for this crime was 27 to 33 months in prison. The judge made an upward departure based upon his lengthy rap sheet, despite the fact that the misdemeanors didn't normally count for much under the guidelines, to 41 months, which the 9th Circuit disapproved of, and he was sent to be resentenced. Booker intervened making the sentencing guidelines advisory, and on remand he received a 48 month sentence which was affirmed on appeal, noting aggravating factors other than his criminal history. A dissenting opinion in the final appeal argues that too much liberty was taken with the previous appellate decision using the excuse of Booker, but that is beyond the scope of this post.

Drug Cases Compared

The point that is more important, than the ups and downs of Bad Marriage's appellate experience, is that the minimum sentence for selling even $700 marijuana involving just two $350 sales, while having a gun on your person, in the federal system is 55 years.

Or, consider this case:

The crime for which he was convicted was conspiracy to distribute 50 grams or more of crack, 500 grams of more of cocaine, and some marijuana, within 1000 feet of two playgrounds. He was also observed possessing, but not brandishing or firing a handgun, in and around Waterloo, Iowa. The judge believed that he lied on the stand to the jury, but didn't specify when.

The sentence was life in prison.

Or this case:

[F]or possession of less than 2 ounces of marijuana. . . . The defendant cooperated with police and the undisputed facts were that the pot was intended to ease the suffering of a friend who had M.S., a degenerative nerve disease . . . And, what were the aggravating prior convictions that justified such an incredible sentence in this case: involuntary manslaughter, which arose out of a drunk driving car accident in 1990 (which was classified as a "crime of violence"), and selling one-quarter ounce of marijuana for fifty dollars in 1998 (which was classified as "drug trafficing").

The sentence was eight years in prison.

Or this case:

Powell was, in the words of a prosecutor, a "worker bee" for his boss, a crack dealer named Leon Henry. Both were arrested as a result of their dealings with the confidential informant and both were convicted of dealing in 50 or more grams of crack cocaine. . . . [he had] two prior crack cocaine possession convictions ,

His prior crimes took place seven months apart, more than twelve years prior to the most recent conviction. The sentence for this a 32-year-old with an IQ of 72 was life without possiblity of parole, a sentence reserved in Colorado for particularly egregious murders, and for kidnappers who harm their victims.

Or this case:

[F]or possession with intent to distribute fifty grams or more of cocaine base . . .

He had 251 grams of crack on his person (about a cup). A judge, not a jury, enhanced his sentence finding, on thin heresay evidence, that he had cocaine in an uncharged incident in Utah and that he had a gun with him at that time, and that there was more cocaine sold than in the case proved to the jury. The sentence was life in prison.

Even the outrageously harsh courts of places like Bali, Indonesia aren't as harsh. An Australian there was sentenced to fifteen years in prison for possession of ten pounds of marijuana.

In the Colorado courts, the average sentence for a Class 2 felony drug offense (the highest possible grade) is 12.3 years, for a Class 3 felony drug offense it is 7 years, for a class 4 felony it is 3.6 years, for a Class 5 felony drug offense it is 2.2 years, and for a Class 6 felony drug offense it is 1.4 years.

Damage Control and Skating For Attorneys

Losing in the U.S. Supreme Court is never fun. But, in this case, it will no doubt be followed closely by an expensive malpractice settlement. SCOTUS Blog summarizes the case this way:

[T]he Court -- again unanimous -- ruled that the limit of workplace bias law to firms with 15 or more employees does not limit federal court jurisdiction, but only sets a limit on who may qualify for relief. That ruling came in Arbaugh v. Y&H Corp. (04-944). The decision cleared up a prolonged conflict among lower courts, over their power to decide cases when a threshold issue is whether the employer is even covered by federal law. The issue has arisen under a variety of laws -- Title VII, Americans with Disabilities Act, Age Discrimination in Employment Act, Family and Medical Leave Act, and ERISA, laws that also involve definitional terms.

The ruling revived a $40,000 verdict that a waitress at a New Orleans eatery, the Moonlight Cafe, had won under Title VII. The Court said that the employer, Y&H Corp., had failed to raise the number-of-workers limit until after the verdict was in, so could not assert it, since the number was not a jurisdictional factor.

In other words, the defendant's law firm lost a $40,000 case in federal court (plus substantial attorneys' fees and costs since this is under Title VII which are probably even more than the verdict itself, especially now that the case has gone all the way to the U.S. Supreme Court), because they failed to make an argument that they had fewer than fifteen employees until after the jury rendered its verdict. This issue would have been a slam dunk win that could have been made by a motion for summary judgment the day that their answer was filed in the case, so this pretty clearly qualifies as malpractice.

At least, unlike the attorney disqualification case that I discussed yesterday, these attorneys were not stupid to litigate the issue as a form of damage control, as their argument won in both the trial court and on appeal in the 5th Circuit, and the U.S. Supreme Court could easily have declined to take this case.

The plaintiff's side of this case is also interesting. It is a wonderful illustration of something that I call "skating". I strongly suspect that at some point in the case prior to the jury's verdict, someone in the plaintiff's law firm looked at Title VII, bonked their hand on their head, and said "Oh shit! They don't have fifteen employees. We're toast!" As advocates, they had no obligation to mention this to anyone, however, and clearly, they did their job of pretending that the issue didn't exist until the defendant's lawyers finally woke up and had their own "Oh shit!" moment a few days too late. Skating, which means being in a position where someone else can harm your case but has failed to do so, and hoping that everything will work out anyway, is more common that one might expect in legal practice, and attorney-client confidentiality rules are largely designed to prevent lawyers from screwing these opportunities up for their clients.

One final thought. Suppose that you are an attorney now, after the Arbaugh case has been decided and find yourself in the same predicament. Had the defense attorneys in Arbaugh not brought their motion, their fatal error likely would never have been discovered by the client and they would have avoided malpractice liability. And, no reasonable attorney after Arbaugh would bring their motion, even if they discovered their mistake. Is the attorney allowed to skate vis-a-vis his client? This is the subject of Ethics Opinion 113, a non-binding analysis of the issue promulgated by the Colorado Bar Association on November 19, 2005.

The ethics opinion says that "a lawyer has an ethical duty to make prompt and specific disclosure to a client of the lawyer's error if the error is material, meaning that it will likely result in prejudice to a client's right or claim." There is not an exception for cases where the error can't be corrected.

According to the ethics opinion, the lawyer should tell the client to consult independent counsel regarding the error, should put it in writing (which starts a clearly documented statute of limitations on a malpractice claim running), and should notify a malpractice carrier, but doesn't have to tell the client that the client has a malpractice claim against him or admit legal liability (which may hinge on issues such as whether the underlying case was more likely than not to prevail on the merits). Also, while it is unethical not to disclose the error (and hence could be a ground for suspension of a licenses or worse), failure to disclose an error is not necessarily an independent basis for a malpractice claim.

So, a lawyer who has made a mistake can skate after making an error. Indeed, the opinion notes that after a disclosure, "The result may be a surprisingly appreciative and understanding client.", and that a lawyer is entitled to try to get the statute of limitations of a malpractice action running, in the hope that the client will blow that deadline, but the lawyer may skate only after having disclosed the error.

Kudos To 60 Minutes.

As noted by a Daily Kos diarist the CBS program "60 Minutes" deserves considerable credit for being willing, in a story about global warming, to report the scientific facts and the opinions of those most knowledgable about the phenomena, rather than feeling compelled to offer the opinions of crackpots whose opinions on the matter are grossly outside the scientific mainstream to provide "balance".

Sometimes there are legitimate differences of opinion on issues. Often, especially in science, there aren't. When there are legitimate differences of an opinion, it is not "fair" to present a crackpot view simply to get another side of the story. Even when their are legitimate differences of opinion, the press should always report, at least, three perspectives. The respective opinions of the people who disagree, and the facts that are known, which can often cast light on whose opinion is more sensible.

21 February 2006

Mystery Case

Is it ever in the best interest of the client to appeal to the state supreme court for the right to continue to be served by a law firm (in this case the firm of Olsen and Traeger, LLP, in which Kent Olsen and Douglas Traeger are the name partners) which has so pissed off the trial judge by their conduct that the trial judge ordered them disqualified from participating in the case, even if the trial judge was wrong?

Likewise, is it ever in the best interest of a law firm to appeal a disqualification, so that, even if you prevail, everyone with internet access and everyone who reads the Colorado Lawyer will know within the month that you so pissed off a trial judge that your were disqualified from the case? In particular, does it make sense to do this when the remedy you get when you win is that the very same pissed off trial judge gets the privilege of making more findings of fact about why your firm is so truly evil that it must be banned from the case on remand?

Wouldn't it have been smarter for the firm and the client to go their separate ways, for the firm to pay the small $5,000 attorney fee award to the other party that resulted from their misconduct, and to keep the incident buried in an obscure trial court file that would be mere gossip to courthouse insiders and nothing more? Indeed, given that you were caught red handed and had to admit it, wouldn't it have been even better strategically, to have withdrawn from the case before the judge had an opportunity to declare your firm deplorable in a court order?

Why this case played out the way that it did is a mystery whose resolution likely has the name ego. If you ask me, this firm has made serious strategic mistakes in deciding to bring an appeal, as well as having made a serious tactical mistake that led to the appeal, even though it nominally won its case in the state supreme court on the issue it raised. Trial judges have vast discretion on a multitude of issues, and to prevail in appealing those issues, you must show not just that the judge would have been wiser to rule the other way, but that the decision was an abuse of discretion. This is a very difficult place to be putting your client.

Who Needs A College Education?

David Edmondson, 46, is a guy with a high school education who took a few corrospondence courses in theology, who joined Radio Shack twelve years ago. He's also the former CEO of Radio Shack (as of yesterday).

Yes, he got there, in part, by lying about his education. Yes, he has three DWI arrests (but beat convictions twice before). Yes, Radio Shack profits have plummetted under his brief tenure. But, hey, I say Mr. Edmondson still deserves kudos for his accomplishments. Not many people with this level of education end up being CEOs of large publicly held companies.

Yes, he was promoted to his level of incompetence, but presumably he must not have been horrible in his previous post if he was promoted to be CEO. He may have been an incompetent CEO with a drinking problem who lied about his resume, but there is no particularly good reason to think that he was otherwise dishonest in his business dealings. There are less honorable ways to have lived your life. And, I'll bet he isn't broke either.

SCOTUS Keeps Colorado Redistricting Case Alive

The U.S. Supreme Court has ruled that a case, Lance v. Dennis, challenging a Colorado Supreme Court finding invalidating a second attempt to redistrict the state's congressional boundaries, after they had already been drawn by a judge when there was a legislative deadlock, will continue to proceed.

This sends the case back to federal district court and could throw the 2006 Congressional election in Colorado into turmoil if the U.S. District Court for the District of Colorado ends up ruling differently than the Colorado Supreme Court in the case.

The federal trial court held that the case was barred by an obscure procedural rule known as the Rooker-Feldman doctrine which bans de facto appeals of state court decisions in federal trial courts. The U.S. Supreme Court disagreed and held, unanimously, that the trial court ruling on this issue was incorrect.

In particular, the high court found that the citizens who brought the federal court suit were not sufficiently tied to the parties to the other lawsuits over redistricting to be bound by the decisions in those cases under the Rooker-Feldman doctrine, which is a very narrow bar to federal lawsuits in a very particular kind of case where the same people who are the litigants in the state court are also the Plaintiffs in the federal lawsuit.

The U.S. Supreme Court decision doesn't cast much light on the Court's view of the merits of the dispute. The Court declined to grant certiorari in 2004 from the Colorado Supreme Court decision. But, that could have been because there were still other lawsuits in play. This case was an election case tried before a special three judge panel, from which there is an appeal of right, rather than a certiorari petition, so the U.S. Supreme Court had no choice to consider the case, regardless of how important or unimportant they believed it to be. And, because they dealt only with the procedural issue (which has broad application to federal practice beyond this case), it is impossible to know how an appeal on the merits would come out.

Only Justice Stevens dissented. His opinion argued that while the majority opinion ruled correctly on the procedural issue that it decided, that this was harmless error, because another procedural doctrine, issue preclusion, provided a sufficient justification for reaching the same result. The other eight justices preferred to let the case takes its course without addressing any other issues in the case at this time.

Who Will Graduate From College?

Who will graduate from college?

According to a study discussed by Unbossed, socioeconomic status (including ethnicity) and high school curriculum are the best predictors of success. A rigorous academic course load including multiple AP classes and at least pre-Algebra, and an absence of remedial classes in high school is key. The other key point is to go to college immediately after high school and to maintain a full course load while there, without withdrawing from courses.

Unbossed also notes that the key factor in success in high school is one's reading and math abilities going into high school. You can't avoid remedial math and reading classes in high school, if you don't make it to high school level in these key areas by the time you complete the eighth grade.

20 February 2006

Polstate.com Colorado RIP?

Before I started this blog, I offered Colorado political news at Polstate.com, which I left last July, after I decided that I didn't need to blog at a place for free where a guest blogger called me a terorrist or terorrist sympathizer or some such.

Well, I took a look back at the site. My Republican counterpart at the site, blogicus maximus, last posted on November 1, 2006 (election day), i.e. three and a half months ago, and is apparently focusing his efforts on his Mile High Delphi site instead, where he has posted six times on Colorado politics since then. The only other exclusively Colorado post since was the text of Bill Owens' State of the State address, posted by the site administrator (there was one post on the NFL games leading up to the Superbowl and one on the multistate Republican river pact).

The archive function is also broken there, so posts prior to October 26, 2005 in the Colorado category can't be pulled up separately. Fourteen states have no one covering them for the site. Only fourteen people have posted so far this year, and most of those posts come from just two people (although this may also be a software glitch, as the posts come from many states). Technorati states that there are 99 sites with links to the site, but this is largely the residue of past glories, I supsect.

It isn't easy to bring people on board when your first post of the year from the site administrator starts off with this:

For a start I have neglected this site to the extent that I sometimes wince to come here. There has been much chance for update but people need to be pushed and people need to see there’s traffic and feedback. 2005 was a low year in the existence of the site for all of those.

I spent more than a year filling the site with a steady stream of posts, and my predecessor, Luis, of Colorado Luis, put in a long and steady stream of posts there before me, so it is sad to see it decline so, but I'm not interested in looking back. When you make your blog a partnership, you have to have good partners.

The Lefty Blog filtered RSS feed model has been far more successful of doing what Polstate.com set out to do, largely because it has recognized that people need to "own" their own blog, and to have an agenda, to make blogging worthwhile. In contrast, Polstate's group oriented, minimally partisan and impersonal "news outlet" approach, leaves little to motivate someone to want to devote their energies for free to it. Partisanship doesn't have to be hateful, but it does express strong opinions, and someone who does analysis without forming strong opinions isn't doing good analysis. Blogs are fundamentally op-ed pages, not pure news outlets (except for a few, like How Appealing, which are basicly filtered wire feeds). If you fail to understand that, your blog will flounder.

The Ad We Need

My DD makes a persausive argument for making the following script the center of the 2006 mid-year election campaign:

Do you disapprove of the way the congress is doing its job?

Republicans control congress.

In Washington, DC, Republicans have a majority in both the House of Representatives and the Senate.

Tom DeLay was the Republican majority leader in the House of Representatives for three years. Last year, he was forced to resign because he is under indictment for money laundering charges.

Do you disapprove of the way congress is doing its job?

Republicans control congress.

Paid for by the Democratic National Committee.

Voters consistently vote against the party that they believe controls the House of Representatives, even when they're wrong. And, evey word in the advertisement is 100% true and logical. The supporting facts (emphasis added):

In 1972, 64% of the electorate believed that Democrats controlled the House of Representatives. That year, Democrats lost 13 seats in the House of Representatives.

In 1980, 71% of the electorate believed that Democrats controlled the House of Representatives. That year, Democrats lost 25 seats in the House of Representatives.

In 1982, 68% of the electorate believed that Republicans controlled the House of Representatives. That year, Republicans lost 27 seats in the House of Representatives.

In 1986, 67% of the electorate believed that Republicans controlled the House of Representatives. That year, Republicans lost 5 seats in the House of Representatives.

In 1994, 70% of the electorate believed that Democrats controlled the House of Representatives. That year, Democrats lost 54 seats in the House of Representatives.

In 1996, 73% of the electorate believed that Republicans controlled the House of Representatives. That year, Republicans lost 5 seats in the House of Representatives.

In 1998, 66% of the electorate believed that Republicans controlled the House of Representatives. That year, Republicans lost 4 seats in the House of Representatives.

In 2002, 72% of the electorate believed that Democrats controlled the House of Representatives. That year, Democrats lost 6 seats in the House of Representatives.

Democrats controlled the House from 1955-1995. Republicans have controlled the House since 1995.

You have to run to establish the pass. Basics matter.

Legal Yiddish

It's not new, but a 1993 exploration of the use of Yiddish in American legal writing is an amusing look at the American melting pot in action. Also amusingly, its epicenter appears to be Georgia.

Intelligent Design Out Of Religious Mainstream

"As a legal strategy intelligent design is dead. It will be very difficult for any school district in the future to successfully survive a legal challenge . . . That doesn't mean intelligent design is dead as a very popular social movement. This is an idea that has got legs."

But pastors are speaking out against it. Warren Eschbach, a retired Church of the Brethren pastor and professor at Lutheran Theological Seminary in Gettysburg, Pennsylvania helped sponsor a letter signed by more than 10,000 other clergy.

"We believe that the theory of evolution is a foundational scientific truth, one that has stood up to rigorous scrutiny and upon which much of human knowledge and achievement rests," they wrote.

Catholic experts have also joined the movement.

"The intelligent design movement belittles God. It makes God a designer, an engineer," said Vatican Observatory Director George Coyne, an astrophysicist who is also ordained. "The God of religious faith is a god of love. He did not design me."

From here.

Opposition to evolution is not a case of religion v. science. It is a case of religious extremists v. science.

Medicine In A Land Of Plenty.

In a land of plenty, medical science is used in odd ways:

A 62-year-old woman gave birth Friday . . . .

Janise Wulf gave birth to her 12th child. She is also a grandmother of 20 and a great-grandmother of three. . . .

Wulf and her third husband, Scott, 48, named the red-haired boy Adam Charles Wulf. He follows just 3 1/2 years behind his older brother, Ian.

"I hate to raise one alone, without a sibling," said Wulf, who was impregnated both times through in vitro fertilization.

Using in vitro fertilization to have a twelth child at age 62 is not unethical, although it is certainly odd and is fairly described as "unnatural". Certainly, no health care system designed to prioritize need would put the desires of a 62 year old mother of eleven, grandmother of 20 and great-grandmother of three, to have another child with a third spouse high on its list of necessities. But, it doesn't hurt me and I'm fine with it. I don't hear a lot of complaints from the religious right or the Catholic Church about people trying to have more children either (although some are made that multiple eggs may need to be fertilized for one to "take" in in vitro fertilization).

But, if we live in a land of plenty where medical resources are so abundant, shouldn't we be able to find some way to fund the medical needs of working class children who have already been born? Ironically, their medical fates are even more perilous than those of children who are actually in poverty, for whom Medicaid is available.

I also have trouble seeing why this procedure is any less ethical than human cloning for reproductive purposes, which so many politicians (including President Bush in the State of the Union address) condemn. Certainly, human cloning is odd and unnatural. Perhaps, given current technology, there may even be too many risks associated with it. I'm not an expert in that field. But, why it is inherently less ethical to engage in human cloning for reproduction, than it is to have your twelth child at age 62 by in vitro fertilization? If it was ethical for me to be born the first time, why is it less ethical for someone to be born a second time with the same genes? The reasons stated for urging a ban are questionable. One of Bush's scientific advisors who made a recommendation for a ban on human reproductive cloning gave this as their reasons:

The volatile issue has been debated again and again, and the president's own largely conservative Bioethics Council (of which I am a member) in 2002 made a big distinction between the two forms of cloning. We voted unanimously to ban reproductive cloning — the kind of cloning that seeks to replicate a human being. We cited many reasons, from biomedical risk to religious concerns to the flat-out weirdness of the idea.

If weirdness is a basis for bioetehics, then newborn Adam Charles Wulf is unethical to the max. But, I don't recall any of my philosophy major friends ever talking about the weirdness principal in their ethics classes.

The only time I can recall human cloning being mentioned in the Bible it was endorsed by the Big Guy himself in the Book of Genesis, shared by Christians and Jews:

2:18 And the LORD God said, It is not good that the man should be alone; I will make him an help meet for him.
2:19 And out of the ground the LORD God formed every beast of the field, and every fowl of the air; and brought them unto Adam to see what he would call them: and whatsoever Adam called every living creature, that was the name thereof.
2:20 And Adam gave names to all cattle, and to the fowl of the air, and to every beast of the field; but for Adam there was not found an help meet for him.
2:21 And the LORD God caused a deep sleep to fall upon Adam, and he slept: and he took one of his ribs, and closed up the flesh instead thereof;
2:22 And the rib, which the LORD God had taken from man, made he a woman, and brought her unto the man.
2:23 And Adam said, This is now bone of my bones, and flesh of my flesh: she shall be called Woman, because she was taken out of Man.

The Korean in Surah 4 (Women) in the first verse, concurs, although less graphically.

The Christian New Testament also represents a strong endorsement from the Big Guy of unconventional impregnation. See Matthew 1:16-25 and Luke 1:26-35, as well as Surah 14 (Mary) of the Koran. Incidentally, the Big Guy is also a great fan of elderly pregnancy. See, e.g., Genesis 18:11-14, Luke 1:5-24, 36, 40-41.

Then again, I'm not really sure that religious texts are a very good basis for making medical decisions, given their strong focus on remedies such as casting out demons and touching Saints or their stuff. See, e.g., Matthew 10:1, Luke 9:39, 11:14, 13:11-16, Acts 5:15-16, 10:38, 19:12.

I recognize the question of biomedical risk, but if anything, human reproductive cloning is inherently less problematic than theraputic cloning.

65 Coal Miners At Risk In Mexico

There are sixty-five coal miner in Mexico who are trapped after a mine accident and at grave risk of death.

Why should we care? Coal kills. It is a dangerous way to get energy. Most of the risk is in the air pollution it generates and in the contamination its use causes, but coal mining is also a deadly business that kills large numbers of people each year. Coal kills far more people per amount of energy generated, than any other fuel used to generate electricity. In particular, coal kills far, far more people than nuclear power ever has, on a regular basis.

Per unit of energy generated, for each life lost due to nuclear power, natural gas results in 2 lost lives, oil results in 32 lost lives and coal results in 37 lost lives.

Danger to human life is a reason to favor fuels like renewable energy, natural gas and nuclear power, over the dominant source of electrical generation right now, which is coal.

And Black Was Declared White.

One of the odd features of the American legal system is that it calls upon appellate judges to determine what trial judges were thinking (often without saying so aloud) in a case from a transcript, even though the judges are almost always available to say what they were really thinking. This is largely an artifact of the jury system, since, unlike judges, it generally isn't possible to track down jurors, because even if they could be found most jurors don't want to be tracked down after they have done their civic duty, and it might be unfair to rely on what they have to say in the rare instances when the can be found, to the prejudice of those who can't be found. But, since sentencing decisions are very rarely, if ever, made by juries (at least in the federal and Colorado systems), this rule doesn't always make a lot of sense in that context.

A particularly notable example of an appellate court getting what the trial judge was thinking wrong, and then ignoring evidence to the contrary, is found here.

Kansas Trying To Screw Up Again

Kansas legislators are trying to ditch its merit selection process for judges for inferior approaches involving either the federal model of gubinatorial nomination and state senate confirmation, or unilateral gubinatorial appointment. Why? Because the Kansas Supreme Court has applied the law and Kansas constitution (under which the Kansas death penalty statute is invalid and the state has a duty to fund the public schools adequately).

Opposition to the proposal is broadbased:

The Kansas Bar Association, the Kansas Association of Trial Lawyers and the Kansas Association of Defense Counsel oppose the change.

Given the fact that this is Kansas we are talking about here, however, the proposed constitutional amendments have a real chance of success.