30 June 2008

A Troubling Sexual Assault Case

The defendant in a case decided by the Colorado Supreme Court on Monday was tried on three different occassions for the rape of three different women. The first two trials resulted in acquittals. The alleged victim in the third case consistently testified after her first communication with the police that her sexual encounter with the defendant was consentual, and claimed that she lied on the first occassion because she feared that she would be prosecuted for prostitution.

Evidence from all three cases was introduced in the third case with evidence from the two prior cases presented before any evidence regarding the case before the jury was offered. The jury concluded that he had been tried in the two prior cases, but the jury was not told that he had been acquitted in the two prior cases.

The defendant was also not permitted to reveal to the jury in the third case that a witness in the third case (a victim in one of the cases that produced an acquittal) was facing misdemeanor charges at the time she testified which prior conduct of prosecutors might cause he to think would be dismissed if she testified as prosecutors wished.

The Colorado Supreme Court reversed the conviction for which the defendant faced sixteen years or more in prison, and ordered a new trial, because the jury was not informed of the prior acquittals despite being aware of the prior trials, and the Colorado Supreme Court also noted that the jury should have been permitted to learn of the misdemeanor pending against the key witness.

Two possibilities in these series of cases are both disturbing.

One is that the defendant was in fact guilty of being a serial rapist. In this case, the prosecution botched the first two cases and is well on its way to botching the third, which was arguably weaker than the first two. The additional evidence the Colorado Supreme Court has held must be admitted will ether leave the prosecution with a considerably weaker version of the same case, or will cause the prosecution to refrain from offering prior act evidence which appears to have been important in the porsecution's ability to secure a conviction in the third case by proof beyond a reasonable doubt. Thus, a serial rapist who has somehow managed to intimate at least some of the witnesses against him, may go free.

Another possibility is that the defendant has been wrongfully prosecuted three times in a row for rapes he didn't commit, or at least, that he has been prosecuted three times for rapes in which there were serious questions about the Defendant's guilt. Moreover, Colorado, like most states, provides no compensation for representation by a private attorney, lost earnings, or harm to one's reputation, when one is charged with a crime and then acquitted. Three prosecutions for serious felonies in the course of a decade, even if they result in acquittals, are enough to financially ruin and destroy the reputation of even a fairly prosperous individual with an otherwise good reputation. The facts in the current case recited by the Court of Appeals, the multiple run ins with the law of some of the witnesses, and the testimony recited by the Colorado Supreme Court suggest that it is possible that the defendant was a repeat prostitution customer, rather than a serial rapist.

Only the defendant and the three alleged victims know what really happened. But it isn't obvious a case brought against the wishes of and contrary to the testimony of the alleged victim, in a case where consent rather the fact that the two had sex is at issue, based largely on the strength of two prior prosecutions in separate incidents that resulted in acquittals, is the best way to use scarce prosecutorial resources, regardless of the truth.

Interpreter Use in U.S. District Courts

In 2005, according to the Florida Bar Journal (July/August 2008 at page 22) citing the Adminstrative Office of the U.S. Courts, Annual Report of the Director, there were a total of 227,361 "events" at which interpreters were required in the U.S. District Courts. The number of events by language was as follows:

Spanish 214,355 (94%)
Mandarin 1,792
Arabic 1,250
Vietnamese 863
Korean 796
Cantonese 745
Russian 610
French 417
Foochow 409

Mandarin, Cantonese and Foochow are all languages spoken primarily in China or by persons of Chinese descent.

Total number of languages interpreted 111.

In 2000, the total number of events in all languages was 190,127 and the number of those that involved Spanish language interpretation was 179,271.

Hardwired for SOV

English uses a subject-verb-object word order. For example, "the man hit the ball." Other languages, such as Turkish, use a subject-object-verb word order. For example, "The man, the ball, hit" to express the same idea. New research suggests that we may be hardwired for a subject-object-verb word order, and use alternate word orders found in some world languages only as a result of nuture that overcomes this natural tendency.

Researchers asking subjects to express ideas non-verbally, and situations where sign language evolves among deaf people without involvement for the local linguistic culture, have both shown a preference for SOV, rather than SVO word orders. The studies were small, but were notable for the near uniform extent to which people from different cultures where the spoken language uses an SVO word order revert to an SOV word order in non-verbal expression.

Linguists in the tradition of Noam Chomsky (better known for his political views which are anti-authoritarian, distrust the mass media, and reject many political assumptions shared by more moderate members of the political left and right) have argued that grammar is a largely hardwired part of our brains (a "universal grammar"), in which the grammatical features that differ from one language to another are mostly in the nature of multiple choice switches triggered one way or another early in the language acquisition process. The most recent research argues that some of those "switches," (called "parameters") like the one controlling word order, have default settings that apply if cultural influences do not intervene.

Critics of this approach argue that proponents of universal grammars have failed to be sufficiently diligent in rooting out counter-examples from less well known languages, and suggest that the brain function rules involved in language acquisition are more rudimentary than the "universal grammer" with parameters, or successor approaches would suggest.

After Heller, What Now?

As expected, in an opinion from Justice Scalia, the U.S. Supreme Court held in the D.C. v. Heller case that the 2nd Amendment to the United States Constitution protects an individual right to own a gun for the purpose of self-defense.

The Court was modest in its holding, however, by making clear a number of limitations present in the ruling.

Does The Second Amendment Apply To The States?

Most critically, the majority opinion noted that under current U.S. Supreme Court precedent in post-14th Amendment cases, that the Court has held that the Second Amendment is not one of those parts of the Bill of Rights which is "incorporated" in the 14th Amendment. Thus, until the U.S. Supreme Court decides to overrule this line of case (and the majority opinion implied that the time to do so could be ripe), the Second Amendment may not invalidate any state or local law.

Mr. Heller was able to resort to the Second Amendment in this case solely because the District of Columbia, which enacted the law, is part of the federal government, and hence, it is subject directly to the provisions of the Second Amendment. The NRA, and presumably other parties, are now bringing test cases in places including Chicago and San Francisco to see if the U.S. Supreme Court will reverse itself on the issue of incorporation, but that is a case for another day.

The relevant language in the opinion says (slip op. at 48, footnote 23):

With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.

The notion that overruling prior precedent to permit incorporation of the Second Amendment might be ripe is also suggested when the Court states (slip pp. at 53-54):

Other provisions of the Bill of Rights have similarly remained unilluminated for lengthy periods.This Court first held a law to violate the First Amendment’s guarantee of freedom of speech in 1931, almost 150 years after the Amendment was ratified, see Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931), and it was not until after World War II that we held a law invalid under the Establishment Clause, see Illinois ex rel. McCollum v. Board of Ed. of School Dist. No. 71, ChampaignCty., 333 U. S. 203 (1948).

Also importantly, the Court notes: “It was plainly the understanding in the post-Civil War Congress that the Second Amendment protected an individual right to use arms for self-defense.” (Slip Op. at 44).

The Court's suggestion is that the meaning of the Second Amendment is an evolving area of law and that the prior non-incorporation holdings may have outlived their due date.

But footnote 23 probably prevents any federal court from holding that the Second Amendment is incorporated as to do so would violate binding U.S. Supreme Court precedents, although a federal court could suggest an alternate ruling if this precedent were overruled. Until then, Heller, and the Second Amendment, apply only to the law in the District of Columbia, federal territories and possessions, and Congressionally enacted federal laws.

Only one member of the Heller majority would have to defect to prevent the Second Amendment from being incorporated.

Related, but of unclear implication, is the Court's observation that the Second Amendment has not come up very often because legislators have rarely passed laws abridging the right (slip pp. at 53-54):

It should be unsurprising that such a significant matter has been for so long judicially unresolved. For most of our history, the Bill of Rights was not thought applicable to the States, and the Federal Government did not significantly regulate the possession of firearms by law-abiding citizens.

The existence of many versions of the right to bear arms in many state constitutions, perhaps even all of them, and the vast differences in circumstances in matters relevant to gun possession between say, Wyoming or Alaska on one hand, and Rhode Island or Hawaii, on the other, argues for not incorporating the Second Amendment. It also virtually eliminates most future litigation of local gun laws in the U.S. Supreme Court. Likewise, the fact that few jurisdictions do regulate guns as tightly as the District of Columbia did in Heller is notable.

While not all justices in the majority in Heller may be convinced that state constitutions, state legislatures and state courts may be trusted to limit gun control by state and local governments, such an idea might appeal to Justice Kennedy, and might also flow naturally into the observation that other rights which Justice Scalia treasures, such as the right to a trial by jury in civil cases or a unanimous jury in criminal cases, are not protected at the state level. Cases where rights have not been held to be incorporated generally argue that a civilized society can be maintained without them. The examples of Japan and the United Kingdom, to take just two examples, establish that it is possible to have a civilized democratic society without a right to bear arms with federal constitutional force.

States rights has long been a rallying cry of conservatives. But in this situation, that commitment to federalism may undermine the cause of a potent and widely effective Second Amendment.

Reasonable Regulation

While Heller did not enact a precise scrutiny level for analyzing the extent of the Second Amendment's individual right, the holding, the logic of the ruling, and the majority dicta in the opinion suggest that considerable regulation of an individual's Second Amendment rights is permitted. Some regulations which are reasonable are set forth in the opinion (slip op. at 54-55). They include bans on felons owning guns, on the rights of the mentally ill to own guns, and bans on the sort of highly dangerous weapons found only in military use (apparently including anything as military specific and unusually dangerous as an automatic rifle).

[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. . . .

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those ‘in common use at the time.’ 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons. . . .

It may be objected that if weapons that are most useful in military service - M-16 rifles and the like - may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty.

The dangerous weapon requirement exception to the Second Amendment prohibits more than just automatic weapons. "We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.” Slip Op. at 53.

The mere existence of a licensing requirement was not overruled in Heller, but in that particular case, the requirement wasn't challenged. But, presumably, if felons and the mentally ill may be prohibited from owning weapons, and if regulations of commercial sales of firearms are permitted, then some sort of licensing or application process to enforce this limitations is likewise permissible.

What Does The Right Protect?

On the other hand, the right to possess a functional handgun in the home, for the proposes of self-defense, even if the alternative of a long gun was available, was held to be protected by the Second Amendment.

The Court observes “that the American people have considered the handgun to be the quintessential self-defense weapon.” Slip Op at 57. “Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.” Slip Op. at 57-58.

To my knowledge, no U.S. state has a statewide ban on the possession and use for self-defense of handguns in one's own home by mentally sound adults with no criminal justice involvement, although some municipalities do have such bans.

It also seems likely that, at least some class of people, in some places, have an individual right to carry arms, including handguns, when out and about, as well as a right to keep them in their homes, as the quotes below (slip op. 10-11, 19, 22), suggest, albeit with some limitations:

At the time of the founding, as now, to ‘bear’ meant to ‘carry.’. . . When used with ‘arms,’ however, the term has a meaning that refers to carrying for a particular purpose - confrontation. . . . Although the phrase implies that the carrying of the weapon is for the purpose of ‘offensive or defensive action,’ it in no way connotes participation in a structured military organization. . . . Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation.

The confrontation most prominently protected appears to be one in which the use of deadly force for self-defense is required. It isn't clear if this right is more narrow than the right in the home, however, where various constitutional considerations involved in a right to security in one's home converge.

Open Questions Regarding The Scope Of The Second Amendment

Most states allow some citizens to obtain concealed weapons permits, but some jurisdictions are very parsimonious in granting them, while others allow them for almost any citizen not disqualified for an express reason from doing so. Certainly, it would seem that it would be improper under the Second Amendment to deny a concealed weapons permit to someone like Mr. Heller, a police officer, who carries such weapons when he is on the job. If the Second Amendment right is strong in one's home than in public, this distinction may survive constitutional challenge, if it is not, "must issue" concealed weapons permits may be constitutionally required.

Given the Court's holding, in addition to incorporation, other open issues seem to include (1) whether open carrying of firearms in non-sensitive public places must be permitted; (2) whether possession of firearms in places of business by proprietors of the business is entitled to the same protections as possession of firearms in the home; (3) whether a ban on semi-automatic assault weapons or Saturday night specials, large caliber but otherwise unexceptional ammunition, body armor, gas masks or similar prohibitions on non-automatic firearms and self-defense equipment is within the dangerous weapon exception to the 14th Amendment, (4) what classes of people other than felons and the mentally ill may be prohibited from possessing weapons, (5) what recording keeping regarding gun ownership and transfers may be maintained in connection with commercial sales of firearms, and (6) what regulations may be imposed upon non-commercial firearm transfers.

The examples provided in the Heller opinion suggest that reasonable regulations of the Second Amendment right may be upheld without excessive scrutiny, certainly not the kind of piercing review that rights subject to strict scrutiny have been afforded, although something more than a highly deferential rational basis review of gun regulations may be required. Like the Court's regulation of discrimination on the basis of gender under the equal protection clause and related civil rights laws, the scrutiny afforded gun laws is likely to be intermediate in intensity and responsive to the realities of the situation. Individual prohibitions may produce splits of authority until they are resolved by the U.S. Supreme Court, the number of cases in the gray area may turn out to be quite small after a rather small number adjudications of the right. If the right is not incorporated, the number of adjudications is likely to be quite small.

Another important class of gun regulations not really addressed is whether the Second Amendment applies when the government acts in its capacity as a landlord or welfare program operator, as opposed to acting in a regulatory setting. Can public housing tenants or adults in a university dormitory, for example, be required to relinquish their Second Amendment right to have handguns in their home as a condition of their tenancy? Likewise, are private limitations enforceable via the eviction process imposed by private landlords and/or employers enforceable?

Given the Court's prior rulings upholding waivers of 4th Amendment protections from search and seizure by public housing tenants, and prior rulings holding that enforcement of private rights through litigation does not constitute state action, I think that it is likely that both of these classes of gun regulation may be upheld against Second Amendment challenges.

One of the most direct insights we are provided regarding the class of persons who may lawfully be prevented from bearing arms is not terribly helpful, because it would be unconstitutional under current equal protection standards (Slip Op. 42):

Blacks were routinely disarmed by Southern States after the Civil War. Those who opposed these injustices frequently stated that they infringed blacks’ constitutional right to keep and bear arms. Needless to say, the claim was not that blacks were being prohibited from carrying arms in an organized state militia.

Both the prohibition of gun ownership by felons, and by public housing residents, have strong subtexts of racial disparity in impact. But it isn't clear if an echo of the expressly racially based prohibitions found in the post-Civil War South would cause the Court to reach out and strike down these prohibitions. I suspect that it will not do so.

Indeed, a fair reading of Heller could suggest another class of people that would cause racial disparity in application that could be excluded from the right to bear arms. The Court states that the right of the "People" in the Second Amendment is a right that extends only to "all members of the political community," (slip op. at 6), the body out of whom the militia was drawn at common law. While, the Court is exceedingly unlikely to hold that this exclude able bodied adult women, who have never been subject to a military draft or considered part of the militia at common law or under state constitutions, this description of the "People" might be used to hold that non-citizens who reside in the United States do not have a Second Amendment right to bear arms, on the theory that bearing arms, like voting, is to some extent a political right.

Finally, the extent to which the Second Amendment can be applied to interpret other laws in an effort to apply them in a constitutional manner is an open question. Could, for instance, the Second Amendment be used to interpret a concealed carry permit issuance law that on its face gives local law enforcement absolute discretion to deny issuance of a permit to do so only given some solid probable cause to believe that the permit would be abused? Or, could the Second Amendment be used to allow even felons to bear arms in exigent circumstances without criminal penalties?

Did The Heller Court Create A Right To Self-Defense?

Sometimes recognizing one right implies the existence of another. For example, while the entitlement of state governments to sovereign immunity is nowhere expressed in the text of the U.S. Constitution, it has been held to be implied by the 11th Amendment which prevents states from being sued in federal court by private individuals.

As the Court notes “The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting.” Slip Op. at 26.

A strong thread of Second Amendment theory is that it protects a natural right to self-defense. If the Second Amendment establishes the constitutional right of an individual to bear arms for the purpose of self-defense, then it follows that armed self-defense must be lawful, at least in some circumstances.

The U.S. Supreme Court has thus far more or less entirely left to the states the issue of when the use of deadly force is permitted in self-defense or in the defense of others. All states (and even the District of Columbia) permit this in some situations as a defense to the crimes of assault and murder. But there is ongoing legislative ferment over when this right exists, and state law is not uniform. At the center of this debate are "make my day" laws that permit the use of deadly force to stop a crime, even when alternatives like retreat or the use of non-deadly force may be sufficient. Some states don't have these laws at all. Colorado allows the use of deadly force in home invasion situations, even when the option of retreat is available. Some jurisdictions expand "make my day" laws to businesses. Florida imposes no geographical boundaries on its "make my day" law, never imposing a duty to retreat before using deadly force.

It wouldn't be a great stretch to rule, given the Court's ruling in Heller that the right to use deadly force for self-defense is an unenumerated right protected by the constitution which is coincident to the Second Amendment. Indeed, even if the right to bear arms isn't incorporated, it isn't inconceivable that minimum standards for permitting the use of deadly force in self-defense might be.

More Symbol Than Substance

The bottom line is that, outside the District of Columbia, Heller is more of a symbolic victory for gun rights, than one of substance. The rights Heller protects, most states, including Colorado, already to provide to their citizens, and it isn't clear that this ruling invalidates any law enacted by Congress and currently in force.

Indeed, by establishing that even a very conservative U.S. Supreme Court is willing to enshrine only a circumscribed and narrow right to bear arms, and by expressly enunciating the limitations on the right to bear arms at the same time that the right is announced, the U.S. Supreme Court may have stolen the N.R.A.'s thunder on the issue of judicial appointments and Second Amendment rights.

While Heller has acknowledged that there is an individual right to bear arms, something that even Democratic Presidential candidate Barack Obama with political roots in anti-gun Chicago was willing to do, the Court in this case has also shut down, perhaps in perpetuity, more a more absolutist scope for the right.

By rooting the Second Amendment more in common practice and self-defense, than the political goal of popular violent revolution, the Court has removed any constitutional objection to keeping hand grenades, military explosives, sawed off shotguns, metal detector evading firearms, automatic weapons, missiles, armor piercing bullets, tanks, chemical weapons, biological weapons and nuclear weapons out of private hands.

Democratic politicians can now point to Heller and say that they agree with the conservative U.S. Supreme Court that there is an individual right to bear arms which is subject to substantial, reasonable regulation. Moreover, if later cases do not apply the Second Amendment to the states, the ability of states to tailor their gun control laws to local desires, free of significant federal court or Congressional influence, Heller may actually bring increased harmony to this area of law, which is a political perennial.

26 June 2008


An opinion in the Second Amendment case Heller v. D.C. is expected from the U.S. Supreme Court shortly, probably written by Scalia and probably greatly expanding the scope of the individual right to bear arms for self-defense free of unreasonable federal regulation. I previously discussed at this blog the most attractive theory to back such a right in February. SCOTUS Blog and How Appealing will probably have the scoop most quickly.

25 June 2008

Tooting My Own Horn

James Joinder has given me greatly appreciated praise at the Outside the Beltway blog, reacting to a post of Ezra Klein at the American Prospect's blog which in turn cited a blog post of mine called Against Homeownership (emphasis added):

Ezra Klein jumps on a growing meme the home ownership isn’t all it’s cracked up to be and that the government should stop subsidizing it. He points to Paul Krugman, who argues in today’s NYT that it’s time to rethink our decades-long bipartisan consensus that home ownership should be encouraged. . . .

Anyway, I see from Ezra’s “link blog” that James Surowiecki wrote almost exactly the same article for the New Yorker back in March. Better yet, Andrew Oh-Willeke wrote all of this in a May 2006 blog post, before the subprime lending crisis hit, putting him way ahead of the curve.

Klein, Surowiecki, and Oh-Willeke all note that easy lending exacerbated these issues, since so many people are now mortgaged up to their eyeballs, buying ever-bigger homes, and now feeling the crunch as the economy has slowed down. Back in the days when one had to put 20 percent or more down to buy a home, people were much more insulated from these effects.

Both the American Prospect's blog and Outside the Beltway have orders of magnitude more traffic than my own little piece of the blogosphere.

Getting ahead of the curve on public policy issues is what this blog is all about.

The Broader Impact of The Kennedy Case

Today's U.S. Supreme Court decision may invalidate part of Colorado's death penalty. Justice Kennedy's decision in the U.S. Supreme Court case of Kennedy v. Louisiana went further than simply abolishing the death penalty for child rape in Louisiana.

The opinion was written broadly enough to invalidate the death penalty for child rape in five other states and Montana, even though most of those statutes, unlike the statute in Louisiana, apply only to more aggravated cases. Democrat Joe Rice introduced legislation last year to impose a death penalty for child rape in Colorado, but it quickly failed in committee.

Child rape isn't the only non-homicide crime for which the death penalty is possible, and the opinion went beyond the case of child rape to provides that “[a]s it related to crimes against individuals, the death penalty should not be expanded to instances where the victim’s life was not taken.”

As I noted previously:

The other non-murder crimes on the books are as follows:

Three address cases where death is likely but hard to prove:

* Treason (Arkansas, Calif., Colorado, Georgia, Illinois, Louisiana, Mississippi, Missouri, Washington, Federal)
* Espionage (New Mexico, Federal)
* Aggravated kidnapping (Co., Idaho, Il., Missouri, Mont.)

Three more amount to particularly aggravated cases of what amount to attempted murder:

* Aircraft hijacking (Ga., Mo.)
* Placing a bomb near a bus terminal (Mo.)
* Aggravated assault by incarcerated, persistent felons, or murderers (Mont.)
* Attempting, authorizing or advising the killing of any officer, juror, or witness in cases involving a Continuing Criminal Enterprise, regardless of whether such killing actually occurs. (Federal)

One is a product of war on drugs hysteria:

* Drug trafficking (Fl., Missouri, Federal)

The only Colorado crime on this list, First Degree Kidnapping, Section 18-3-301, Colorado Revised Statute provides that: "no person convicted of first degree kidnapping shall suffer the death penalty if the person kidnapped was liberated alive prior to the conviction of the kidnapper." Likewise, life in prison without parole is not a sentencing option for the offense "if, prior to his conviction, the person kidnapped was liberated unharmed."

The Kennedy opinion preserves the death penalty's constitutionality for treason, espionage and the federal drug kingpin statute, for now, at least:

Our concern here is limited to crimes against individual persons. We do not address, for example, crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State.

But Kennedy may invalidate statutes like Colorado's death penalty for kidnapping (also found in Idaho, Illinois, Missouri and Montana), although it would be possible to view the Colorado statute as something in the nature of a rebuttable presumption of homicide in connection with kidnapping, rather than an actual non-homicide death penalty, or to view the fact that a kidnapping may be ongoing as an aggravating factor that mandates a different analysis. To my knowledge, there is no one convicted of non-homicide kidnapping on death row anywhere in the United States today, so the issue is not ripe for adjudication at this time. Everyone on death row in Colorado was convicted of murder.

The ruling also almost certainly invalidated the Montana death penalty for aggravated assault statute. It may also invalidate the Missouri death penalty for placing a bomb near a bus station and aircraft hijacking, and the Georgia aircraft hijacking death penalty statute. It isn't clear if the death penalty for attempted murder to obstruct justice by an organized crime figure survives this decision either -- there is an argument that the emphasis on the judicial process makes it a crime against the state similar to treason.

The opinion also restates when the death penalty is available in felony-murder cases for someone who is not the actually killer:

[I]n Enmund v. Florida, 458 U. S. 782 (1982), the Court overturned the capital sentence of a defendant who aided and abetted a robbery during which a murder was committed but did not himself kill, attempt to kill, or intend that a killing would take place. On the other hand, in Tison v. Arizona, 481 U. S. 137 (1987), the Court allowed the defendants’ death sentences to stand where they did not themselves kill the victims but their involvement in the events leading up to the murders was active, recklessly indifferent, and substantial.

Also, while this decision does not invalidate the federal drug kingpin statute, the Court's emphasis on the importance of which death penalties are carried out is notable. While rare, there have been a steady trickle of executions for espionage and treason over the nation's history. But the federal drug kingpin statute has no such heritage, and hence, may be on feeble ground. Also, the fact that only two states have the death penalty for drug kingpins, even though there is a federal statute to that effect, and that none of the other non-homicide/non-treason death penalties have been carried out or even enacted in more than five states, suggests that they are on questionable ground constitutionally. More background can be found here.

24 June 2008

More To Pot Than THC

THC is the best known active ingredient in marijuana. But it turns out there another active ingredient is also present in marijuana which also has medical benefits.

Jürg Gertsch [is] a biologist at the Institute of Pharmaceutical Sciences in Zürich, Switzerland, and lead researcher on the study, published June 23 in Proceedings of the National Academy of Sciences.

The team extracted the compound, called beta-caryophyllene, from oily resin in Cannabis sativa L. buds . . . beta-caryophyllene works by turning on CB2 cannabinoid receptors, molecules that THC acts on and that are also known to reduce swelling, pain and inflammation.

THC works its anti-inflammatory magic by activating both CB2 and CB1 receptor molecules; CB1 receptors are concentrated in the brain and lead to the psychological effects of marijuana. Beta-caryophyllene, however, has little or no effect on CB1 and, therefore, might be used to ease inflammation without the psychological side effects . . . beta-caryophyllene has previously been isolated from a number of plants and spices including black pepper, oregano and cinnamon. . . . But the amount of pepper one would have to ingest to get the desired benefit might also lead to a nasty stomach ache, Gertsch says.

Fresh beta-caryophyllene works best. A THC extract is approved for medicinal purposes in Canada to treat M.S., but in the U.S. marijuana is treated under the federal controlled substances act as it there are no medicinal benefits to marijuana for political reasons contrary to the scientific evidence.

Closing Time

After a spat of closing time shootings, Mayor Hickenlooper is taking a look at options for tougher gun laws and adjusted nightclub operating hours.

Gun control is a ball of wax that I'll leave for another day.

Nighclub operating hour adjustments are something that has been tried, that worked, when similar problems (absent the guns) arose in London. There, closing hours are staged. Most bars close at one hour, a few close an hour or two later, and some close after that, with the plan being to funnel hard core light night partiers to bars the close the latest, until a mere trickle of then docile drunks are left at the couple of bars that close the latest.

About one year ago, Hickenlooper said, the city brought bar owners together to discuss changing the 2 a.m. bar closing time, but no changes were made. He hopes to bring the owners together once more to talk about changing closing hour.

Whitman said there has been discussion of staggering closing times. But if bars are left open longer, even if no alcohol is served for the last hour or more, it will require more police to patrol them, he added.

Bars throughout the city contribute to the rowdiness that accompanies closing time when they fail to cut off those who have had too much to drink, he said.

Hickenlooper is uniquely qualified to know what would work in this arena as a long time LoDo bar owner himself. I don't know what level of government sets the 2 a.m. closing time, or whether home rule provides an room for meddling with limits set by state law on the issue.

What Statutes Get The Most SCOTUS Attention?

The statutes that have been the most frequent subject of U.S. Supreme Court Review are as follows with the number of reviews in the subject time period (possibly from this source):

* Internal Revenue Code 199
* National Labor Relations Act 123
* Federal Rules of Civil Procedure 87
* Civil Rights Act of 1964 76
* Bankruptcy Code 71
* Sherman Act 69
* Habeas Corpus 68
* Immigration and Nationality Act 62
* Section 1983 (Civil Rights) 59

The Pantograph Revisited

In the future, cars and buses will be powered like laptop computers. Sometimes, they will run on batteries that will supply electric power to run the vehicle for short periods of time disconnected from the power grid. Sometimes, they will operate connected to the power grid and get their power from there.

Existing batteries are capable of powering electric cars which are identical in all respects but one, range, to existing internal combustion vehicles. But while a typical car or truck has a range of about 300 miles on a single refueling, a comparable electric vehicle can only go 40 to 100 miles on a single night's charge. Many people have assumed, as a result, that this will limit personal vehicles to intracity traffic unless a better battery is invented. But this doesn't have to be the case.

Electric vehicles are fine for light intracity travel. My average daily driving is about 16 miles a day, and my home garage already has plugs connected to the power grid that I could use to use to recharge it in the evenings. My bookkeeper drives more than I do, an average of 70 miles a day, but could also probably manage typical daily intracity driving completely on battery power.

But suppose I want to commute from Colorado Springs to Denver, or travel to Vail for the weekend? How do I plug in then?

The technology necessary to do this is more than a century old and is used today in street cars and in the Northeast Corridor's Amtrak service. The vehicle is connected to an Overhead Catenary, which is a system of overhead wires used to supply electricity to a vehicle equipped with a pantograph.

Historically, we have only equipped locomotives and street cars with pantographs, but this wouldn't have to stay that way. A car or bus can be equipped with a simple guidance system, that is a part of the pantograph-caternary system that keeps the vehicle traveling in line with the overhead wires on a road without tracks.

The place it makes the most sense to do this is on interstate highways. Many passenger rail plans already call for using the same basic routes as interstate highways. The vast majority of the people in the United States live within 30 miles of an interstate highway. A large share of intercity traffic takes place on interstate highways, but interstate highways make up only a small share of all roads in linear miles. The limited access nature of these highways makes them attractive places to use guidance systems that keep vehicles in line with the overhead wires powering them. Constant maneuvering from lane to lane isn't necessary on most long haul trips (hence, we have cruise control as a common feature in cars for highway driving). Many interstates either have or have planned high occupancy vehicle lanes which already favor buses and would be perfect places to add an overhead catenary. Many interstate highways are also already paralleled by high voltage power lines. Because the only upgrades necessary to the highways would be a set of overhead wires, and vehicles are designed with the height limitations of interstate highways in mind, adding an overhead caternary system would not prevent conventional internal combustion vehicles from sharing the road with electrically powered vehicles with pantographs during the transition period.

Interstate highways generally operate at or near the speed of existing passenger rail in the United States. They already connect most major cities, have systems in place to maintain them, and are already built, so no major new right of ways would have to be acquired.

Adding overhead catenary wires to existing interstate highways would be much less expensive than building new passenger rail tracks. I've heard estimates of $1 million a mile to put in streetcar lines on existing streets (far less than most kinds of rail and essentially what Denver has downtown). But it would be cheaper per mile to add overhead catenary wires without embedding rails flush with the street, and it would also probably be easier and cheaper to do the bulk of the work on lonely rural interstates, rather than in dense urban centers, where battery powered vehicles (some with pantographs and some without) could ply existing city streets. I suspect that a demonstration project adapting the FREX bus that goes from Colorado Springs to Downtown Denver, and electrifying the part of its route that goes on interstate highways, could probably be put in place for $25 million ($5 million for the buses, $20 million for the overhead catenary and fleet charging infrastructure), which is a small fraction of the cost of any type of electrically powered passenger rail system.

This kind of system would also be more robust than a traditional rail system. For example, if an accident or debris or a sinkhole or construction obstructed the area under the overhead catenary at some point, pantograph powered vehicles could simply detach for a few miles to detour around the problem area, while running on battery power, and then reattach to the wires down the road. This flexibility would also make the system a less attractive target to terrorists, because simply disrupting the wires at a single point could not bring the system to a halt the way destruction of train rails could.

The system could start with pantograph equipped buses, and could latter be expanded to include other pantograph equipped vehicles. The pantographs used to power vehicles on highways could also be used to recharge the vehicle in their home garages -- keeping high voltage connections above the level where people would be prone to accidentally making contact with them.

Why bother doing this at all? The main reason is the rising price of oil. Oil prices are expected to increase far more than electricity prices in the next many decades. We also have more mature technologies make the electrical power grid greener, by replacing high pollution coal powered plants with less polluting power plants that use renewable or nuclear sources, than we do technologies that allow internal combustion driven vehicles to be less polluting.

This low tech solution is also a much more plausible candidate for countries like China and India that are likely to see a huge rise in the number of vehicles operating on their roads, that aren't ready to pay the big bucks that an affluent country like Japan or France can afford to spend on expensive new high speed rail systems.

23 June 2008

3101 Posts

The crystal ball is smuggy. Maybe I should invest in some screen wipes.

8% Godless

About 8% of people surveyed don't believe in God according to a Pew Survey of 36,000 people in 2007. Those numbers aren't huge, but are far more than the 1-2% answering that way in many other surveys.

While 92 percent of Americans believe in the existence of God or a universal spirit, only about 70 percent say they are "absolutely certain."

Almost two-thirds of the faithful take the view that their religion's sacred texts are the word of God. That group is almost evenly divided between those who think the text should be interpreted literally and those who don't. . . .

"[I]n the United States today is that people who regularly attend worship services and hold traditional religious views are much more likely to hold conservative political views," . . . For example, about 73 percent of Evangelical Christians who attend church at least once a week say abortion should be illegal, compared with 45 percent of Evangelicals who attend less often.

This implies, of course, that a third of the faithful don't believe that their religion's sacred texts are the word of God, and that Evangelicals who attend church infrequently are comparably liberal to mainline Christians who attend church frequently.

Arapahoe County Juries Racially Biased But Harmless?

The Colorado Supreme Court held today in a pair of cases out of Arapahoe County, Colorado, that the jury selection system in that county had a statistically significant racial bias that must be eliminated immediately, although it also held that these biases were not a basis for overturning convictions arising from that jury pool.

As previously noted in this blog, Aurora, Colorado, much of which is in Arapahoe County, is one of the most racially diverse cites in the state, while the rest of Arapahoe County has a smaller non-Hispanic white population on a percentage basis.

Given these demographics, any process with disproportionately removes Aurora residents from the jury pool leads to statistically significant reductions in minority populations in Arapahoe County jury pools.

Arapahoe County had such a practice. Someone in Aurora who is called for jury duty in municipal court is removed from the county and district court jury pools. But people in unincorporated Arapahoe County can't be called to appear for jury duty in municipal court, and so they are less likely to be disqualified from county and district court jury pools.

Because this systematic practice resulted in a statistically significant underrepresentation of African-American and Hispanics on jury panels in Arapahoe County, we disapprove of it and direct that it be stopped immediately. As the evidence presented by the expert showed, the likelihood that the underrepresentation of African-Americans on jury panels in Arapahoe County occurred by chance was 0.008%, or eight out of every 100,000 times, and that the likelihood that the underrepresentation of Hispanics on jury panels in Arapahoe County occurred by chance was 0.120%, or 120 out of every 100,000 times.

However, upon review of the other statistical evidence presented by Washington, we conclude that the underrepresentation of African-Americans and Hispanics as measured by statistical significance was minimal. As measured by absolute impact, the practice of giving double credit to prospective jurors for service in Aurora municipal court resulted in a decrease of less than one African-American and one Hispanic in every three 90- to 100-person jury panels in Arapahoe County. As measured by absolute disparity and comparative disparity, the underrepresentation of African-Americans and Hispanics here was slight when compared with other cases in which the underrepresentation violated a defendant’s constitutional right to a jury selected from a fair cross-section of the community.

Therefore, although we disapprove of the practice of giving double credit to prospective jurors for service in Aurora municipal court, our review of all the statistical evidence presented by Washington leads us to conclude that the underrepresentation of African-Americans and Hispanics on jury panels in Arapahoe County at the time of the defendants’ trials was not unfair or unreasonable, and thus did not violate the Sixth Amendment’s fair cross-section guarantee. We therefore affirm the judgments of the court of appeals.

Washington and Sayles also argue that the evidence of statistical significance in this case is sufficient to establish a violation of their statutory rights under the Colorado Uniform Jury Selection and Service Act, §§ 13-71-101 to -145, C.R.S. (2007). However, because neither Washington nor Sayles raised this argument at trial, on appeal to the court of appeals, or in their petitions for certiorari review, we reject their statutory claims as untimely.

Notably, Sir Mario Owens was recently sentenced to death by an all white Arapahoe County jury. While the Colorado Supreme Court decision in this case may deny him state court review of this issue, the fact that the Colorado Supreme Court ruled that there was a statistically significant disparity at the time his jury was selected, provides a possible issue in federal court review of his case.

Colorado Public Defender Rules Unconstitutional?

Colorado Public Defender Rules May Be Unconstitutional

In a not terribly surprising decision, the U.S. Supreme Court ruled that the right to counsel attaches when you are incarcerated and arraigned before a magistrate, even if the prosecutor's office has not yet become involved in the case because the proceedings were begun by a police officers authorized to do so in local practice. Rothgery v. Gillespie County, Texas.

The only surprising part of the decision is that the District Court and 5th Circuit Court of Appeals had ruled to the contrary (apparently the 5th Circuit had ruled the wrong way in a previous case).

According to the majority in Rothgery, Colorado is one of seven U.S. states that do not "take the first step toward appointing counsel 'before, at, or just after initial appearance.'" It went on to state with regard to these states (citations omitted):

[E]ven in the remaining 7 States (Alabama, Colorado, Kansas, Oklahoma, South Carolina, Texas, and Virginia) the practice is not free of ambiguity.

One brief cited by the majority suggested "that the practice in Alabama, Kansas, South Carolina, and Virginia might actually be consistent with the majority approach." Thus, Colorado and Oklahoma practice, in addition to the Texas practice at issue in the case, might have to be reformed as a result of this decision.

I don't practice criminal law in Colorado on a regular basis and thus, I am not familiar with this detail of Colorado practice. I invite comment from those better informed than I about the impact of the Rothgery decision in Colorado.

Juries For Juveniles In Kansas

Another interesting ruling came out of the Kansas Supreme Court Friday, which held, in the case of In re L.M., that juveniles were entitled to jury trials in juvenile court deliquency proceedings because the juvenile justice system was no longer sufficiently different from the adult process (as a result of tough on crime reforms) to justify denying juveniles a right to a trial by jury.

To my knowledge, Kansas is now the only state in the United States where juveniles have a right to a jury trial in juvenile court. The ruling, arising under the Kansas Constitution, and hence, not reviewable by the U.S. Supreme Court or subject to amendment by the Kansas legislature without a constitutional amendment, was not retroactive in effect.

The decision would provide cover to other state supreme courts similarly disillusioned with the state of juvenile justice, and will almost certainly spawn copy cat litigation in other states, particularly if the right to a jury trial proves unproblematic.

I recall reading the U.S. Supreme Court decision that eliminated the right to a jury trial in juvenile court delinquency cases in law school and found it unpersausive. The Kansas Court summarized that U.S. Supreme Court decision at the outset of its analysis:

[I]n McKeiver v. Pennsylvania, 403 U.S. 528, 29 L. Ed. 2d 647, 91 S. Ct. 1976 (1971), . . . a plurality of the Court held that juveniles are not entitled to a jury trial under the Sixth and Fourteenth Amendments to the Constitution.

In McKeiver, the United States Supreme Court addressed the constitutionality of the Pennsylvania and North Carolina juvenile justice systems, neither of which afforded juveniles the right to a jury trial. Although the resulting plurality opinion held that juveniles are not entitled to a jury trial under the federal constitution, the justices could not agree on the reasoning to support that holding. Four of the justices supported their decision with the following 13 policy considerations and assumptions or speculations about the impact of jury trials on juvenile proceedings:

(1) The Court had previously refrained from flatly holding that all constitutional rights assured to adults accused of crimes were imposed on state juvenile proceedings;

(2) Imposing jury trials might remake juvenile proceedings into fully adversarial proceedings, thereby putting an end to the intimate, informal proceedings envisioned by the creators of the juvenile justice system;

(3) A governmental task force that had studied the juvenile justice system did not make any recommendation regarding jury trials as a means of improving the deficiencies and disappointments in the juvenile system;

(4) As noted in dictum in Duncan v. Louisiana, 391 U.S. 145, 149 n.14, 20 L. Ed. 2d 491, 88 S. Ct. 1444 (1968), a jury trial is not a necessary part of every fair and equitable criminal process;

(5) The imposition of a jury trial would not strengthen the factfinding process and would eliminate the juvenile system's ability to function in a unique way, placing the juvenile "squarely in the routine of the criminal process;"

(6) The Court was reluctant to preclude the States from experimenting with different ways of handling juvenile problems;

(7) The Court refrained from concluding that the abuses in the system were of constitutional dimension;

(8) Nothing prevented the juvenile court judge from using an advisory jury;

(9) Twenty-eight States and the District of Columbia denied juveniles the right to a jury trial, while 10 States provided a jury trial under certain circumstances;

(10) A great majority of States had previously concluded that In re Gault, 387 U.S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428 (1967), and Duncan did not require jury trials for juveniles;

(11) The Uniform Juvenile Court Act stopped short of proposing a jury trial;

(12) Injecting a jury trial into juvenile proceedings would bring "the traditional delay, the formality, and the clamor of the adversary system and, possibly, the public trial"; and

(13) The possibility of prejudgment by a judge who has had prior access to the juvenile, the juvenile's record, and the juvenile's social file would ignore every aspect of fairness, concern, sympathy, and paternal attention contemplated by the juvenile system. McKeiver, 403 U.S. at 545-50.

Two concurring justices relied on other reasoning. Justice Harlan concurred with the result because he did not believe that the Sixth Amendment or the right to due process required the states to provide criminal jury trials for anyone. McKeiver, 403 U.S. at 557 (Harlan, J., concurring). Justice Brennan also concurred with the result but relied on the concept of fundamental fairness. According to Justice Brennan, the State did not have to provide jury trials for juveniles as long as some other aspect of the process adequately protected the juvenile's Sixth Amendment interests by preventing governmental oppression. Justice Brennan concluded that the Pennsylvania system was adequate because it allowed public trials, thereby "exposing improper judicial behavior to public view, and obtaining, if necessary, executive redress through the medium of public indignation." 403 U.S. at 555 (Brennan, J., concurring). Under this rubric, Justice Brennan concluded that the North Carolina system was not constitutionally sound because it did not allow public trials. 403 U.S. at 556-57 (Brennan, J., concurring).

Justices Douglas, Black, and Marshall dissented, stating that "neither the Fourteenth Amendment nor the Bill of Rights is for adults alone." McKeiver, 403 U.S. at 559 (quoting In re Gault, 387 U.S. at 13). Noting that the "Sixth Amendment . . . speaks of denial of rights to 'any person,' not denial of rights to 'any adult person,'" the dissenting justices discerned no difference between allowing juveniles the right to a jury trial and the previously granted rights to notice, counsel, protection against self-incrimination, confrontation, and conviction under the beyond a reasonable doubt standard. 403 U.S. at 560-61 (Douglas, J., dissenting). The dissenting justices looked behind the facade of the delinquency charge to the underlying criminal statute and concluded that juveniles who are prosecuted for a criminal act involving a potential loss of liberty are entitled to the same protections as adults accused of a crime. 403 U.S. at 560-61.

When Wrong Is Right

The Colorado Supreme Court and U.S. Supreme Court, in unrelated decisions, held today that sometimes a clearly incorrect legal ruling must be upheld when no timely objection is made to it.

In the Colorado case, Kancillia v. Pearson, a debtor was entitled to exempt disability payments from creditors claims in an amount greater than the amount authorized by statute, because a timely objection to the claim of exemption was not made by the creditor. The Colorado case was unanimous.

In the U.S. Supreme Court case, Greenlaw v. United States, a 15 year sentence was upheld, despite the fact that the defendant was convicted of a crime with a 25 year minimum sentence, because federal prosecutors didn't appeal that sentence, even though they had objected at trial to it. The U.S. Supreme Court ruling was a 6-3 decision not made on the usual partisan lines.

The idea that a clearly legally incorrect decision can be legally binding and unreviewable is sometimes hard for non-lawyers to understand, even though these situations come up fairly often, although usually less blatantly.

Judges and lawyers often make mistakes, and if there weren't limits upon reopening those mistakes, the judiciary's authority would be undermined by the uncertainty involved in judicial rulings.

19 June 2008

Dismal DPS

Another day, another report on the dismal academic achievement of Denver Public Schools students.

Denver high school freshmen took standardized final exams in a variety of subject this year, based upon state curriculum requirements. It appears that most students took one of two English classes and one of five math classes. There were also standardized final exams in science and geography. Across the board, the results were awful. The percentage failing the final exam (and the number of students taking each test) appear below (following in brackets by the percentage getting Ds or Fs):


Introduction To Literature and Composition (3615) 34% [54%]
American Literature (3338) 41% [66%]


Algebra II (1656) 67% [81%]
Geometry (2722) 47% [71%]
Algebra I (2730) 68% [85%]
Interactive Math Program 2 (229) 52% [67%]
Interactive Math Program 1 (469) 58% [75%]

Science and Social Studies

Biology (2722) 56% [78%]
Earth Science (2933) 69% [87%]
Geography (2842) 31% [71%]

The plurality grade in every English, math and science subject was F. In geography, the plurality grade was a D.

Kids were flunking their final exams, which unlike CSAPs they have an incentive to perform upon because they count towards the final grade in the class, at high rates at every level, despite the fact that, for example, high school freshmen in Algebra II should presumably be better at math than high school freshmen in Algebra I. Yet, more than two-thirds of DPS freshmen in each class flunked their final exam.

While it is possible that the exams are simply ill crafted, and they are certainly not perfect, the results largely coroborate the CSAP and ACT results from the district.

The numbers suggest some combination of two factors. One, students are being placed in classes that are grossly beyond their abilities, and hence are set up to fail. The other, is that students simply do not care across the board, even if they are able to perform.

A properly placed student who makes even a modicum of good faith effort ought to be able to score at least a C or D on a final exam.

The percentage of students scoring an A or B on the final exam, which suggests that they actually "get it" is tragically small as well. The percentage varied from 3% to 12% of students taking each exam, depending upon the class.

The Denver Public Schools may be teaching 7,000+ freshmen, but fewer than 1,000 of them are getting much out of it.

18 June 2008

Somebody Needs More Firm Meetings

My law partner and I talk, a lot, about firm business and firm clients. We do so almost every day, and often on weekends. The law firm Zakhem Atherton, whose most prominent partner is Colorado Republican scion John Zakhem, who is about the same age as I am and has a similar practice in a small to medium sized law firm (and in person, mostly a nice guy), apparently doesn't.
The Colorado Supreme Court has launched an ethics investigation into a prominent tax attorney whose firm represents the Colorado Republican Party. The inquiry was initiated after the high court received a complaint filed by the Colorado Division of Real Estate against Rodney Atherton for his involvement in a controversial state conservation tax credit program. Erin Toll, an attorney director of the real estate division, said she and her staff felt compelled to file the complaint because, by law, attorneys are required to report potential ethical violations or face penalties themselves. Atherton, a partner in the law firm Zakhem Atherton, said in an e-mail to the Rocky Mountain News that Toll was misinformed "and in error with her unfortunate allegations." The court responded to Toll on June 13, saying it had assigned the investigation to attorney Nancy Cohen, and had given Atherton 20 days to respond. In her letter to the Supreme Court, Toll wrote, "The division is not directly investigating Mr. Atherton. However, during the Division's investigation of appraisers, who performed appraisals for state conservation easement tax credits, information about Mr. Atherton was learned that, if true, could mean Mr. Atherton violated several Rules of professional conduct raising a substantial question as to Mr. Atherton's honesty, trustworthiness and fitness as a lawyer." John Zakhem, Atherton's partner, declined to comment on the complaint, saying that he was unaware one had been filed. He also said that he was not aware that any investigation by the division of real estate involved work by Atherton after Atherton joined his firm.
I express no opinion on the merits of the ethics complaint lodged against Rodney Atherton. Conservation easement tax credit rules are arcane, and without knowing the details it is hard to know if this is a case of a legitimate disagreement or an actual ethical breach. Most legal ethics rules are geared towards litigation and negotation, not transactional practice, and federal ethical rules for tax practice (Circular 230) do not directly apply to Colorado tax practice. But I can state definitively that I would know if any lawyer in my firm was being investigated by the Colorado Supreme Court for an alleged ethical violation within minutes of the time that the lawyer in question learned of the charges.

Latrines Could Save Lives

Sometimes, low tech is best.

Did The Republicans Screw Up Nominations?

The official candidate list for partisan offices in Colorado approved by Republican Secretary of State Mike Coffman yesterday was full of surprises. Previously unannounced Republican candidates appeared in a large number of nominations. For example, every Democratic House District in Denver but House District 8 has a Republican candidate listed. Paul A. Linton, for example, filed a candidate affidavit to run as a Republican in House District 3 on June 12, 2008.

Most appear to have been appointed by vacancy committees convened after June 5, 2008 in races where no candidate was nominated by petition or the caucus process, although a few were appointed to replace candidates who were nominated in the caucus process and then dropped out.

The question now is whether those nominations were valid.

Getting on the Ballot in Colorado

There are normally two methods to get on the ballot as a major party candidate in Colorado is to appear on the August 12, 2008 primary ballot. See Colorado Revised Statutes Sections 1-4-502. Ordinarily, the is possible only (1) through the caucus process (from caucus to county assemblies to multi-district assemblies to the state assembly), or (2) by petition. See Colorado Revised Statutes Sections 1-4-601 to 1-4-605.

None of the Republican candidates in this last wave of candidacies appear to have gotten on the primary ballot by petition.

House district and state senate district assemblies, at which these nominations were allegedly made, must be made within fifteen days of the county assembly, and those nominations must in turn be filed with the Secretary of State within four days of the Assembly, according to state law. This deadline expired long before the May 31, 2008 Republican State Convention and Assembly.

In addition to the ordinary methods, another way to get on the ballot is to replace someone previously nominated through a vacancy committee. See Colorado Revised Statutes Section 1-4-1002.

Until "sixty-eight days before the primary election" a vacancy committee's power includes the power to fill a vacancy caused "by failure of the assembly to make designation of any candidate for nomination." Colorado Revised Statutes 1-4-1002(1). After that date, the statutes only allow vacancy committee to fill a vacancy is someone "previously designated" or "nominated" is no longer running. Colorado Revised Statutes Section 1-4-1002(2). Colorado's primary this year is August 12, 2008, so the deadline for a vacancy committee appointment where there was no candidate previously nominated was June 5, 2008.

The Facts

Coffman, supported by an opinion from Republican Attorney General John Suthers, extended the deadline to June 13, 2008, despite not having any statutory authority to do so and having clearly announced the June 5 deadline. Colorado does not give the Secretary of State authority to extend statutory filing deadlines to run for public office.

The deadline to file suit to contest a Colorado Secretary of State primary certification is five days from the time when it is made by the Colorado Secretary of State.

If a court finds that Coffman exceeded his authority by allowing candidates who failed to be appointed by vacancy committees by the statutory deadline to appear on a primary ballot, then a significant number of Republican candidates identified by Coffman yesterday will lose their races.

17 June 2008

Congratulations California Couples!

Get married. Then kiss that special someone. Or, if you're impatient, you can do that in reverse order.

Informal Understandings

Between a boyfriend and a girlfriend, written contract stating how many dates a week a couple will have, for how long, in what places is an aburd thing reserved for geeky millionaires with a weird sense of humor.

Yet, in truth, almost all social relationships are full of exquisitely detailed sets of expectations and obligations, similar to contracts, but far more flexible, detailed and somehow fundamentally different in character.

People who are dating do expect a certain frequency of interaction. They do have understandings about how outings will be paid for, indeed, there are specialized terms like "going dutch" to describe them that are as specific and arcane as the shipping terms in Article 2 of the Uniform Commecial Code. They have shared understandings about what should be worn on certain outings and whose duty it is to communicate those expectations. They shared understandings about how they are to address each other (sometimes context specific). They have shared understandings about when and how it is appropriate to touch each other. They have understandings about when to buy gifts, and what is appropriate in value and type.

Indeed, part of the point of the elaborate mess of informal understandings required to have a social relationship with someone is to screen people to see if they have enough in common with you to make it worthwhile to trust them. Countless men and women are dumped every day because they don't sufficiently fathom their partner's often unstated informal understandings and expectations.

The touchstones of informal understandings include a constant willingness to amend the understandings by mutual agreement in a way that will better fit changing circumstances, a commitment to reciprocity, and a willingness to excuse with adequate receiprocity -- breaches of understandings that are not the fault of the breaching party. Those involved may or may not communicate dissatisfactions with failures to live up to informal understandings; those who fail to live up to informal expectionations may apologize and acknowledge their breach or not as they wish. Either way, if anyone becomes sufficient dissatisfied with the relationship, they may terminate the relationship or otherwise fail to reciprocate.

One of the challenges of the law is to know when to give legal effect to informal understandings, and when to disregard them as less than the formal binding legal agreement. Written contracts usually signal a desire to opt out of the regime of informal understandings. Business dealings without written contracts, in contrast, require some legal principles to give them meaning, which could be a set of default rules (agreements not in writing are not enforceable), categories (everything is a gift or a transfer for consideration or an accidental transfer and has a legal consequence as a result), or a more piercing examination of the evidence regarding the intent of the parties.

The trouble with the latter evidence intense approach, is that few people are capable, most of the time, of fully articulating what is going on at the level of informal understandings with a level of detail and accuracy necessary to provided meaningful guidance to a third party, even though they understood the informal understandings at the time. In the same way, many people can recognize on face out of many similar ones, but few people can easily draw or even tell someone how to draw that face in a way that would distinguish it from the others for a third party.

No fault divorce is largely a product of a decision by repeat participants in the system that courts were incapable of fruitfully taking evidence that would do justice to the informal understandings present in the intense and expectation dense social relationship of marriage. Fault divorce has virtues in theory, but in practice, is too hard to adjudicate in a way that does justice to the parties.

No fault automobile insurance and worker's compensation insurance, while not drawing on the informal understandings that are at the heart of why marriages die, likewise represent instances when the legal system has decided that the amount of factual inquiry necessary to arrive at a correct answer under traditional liability rules is grossly excessive given the stakes involved in the typical case.

16 June 2008

New Inmate Headed For Colorado's Death Row

Sir Mario Owens has been sentenced to death by a Colorado jury.

He was convicted of first degree murder of Javad Marshall-Fields and the simultaneous murder of Marshall-Fields' fiancée, Vivian Wolfe. Marshall-Fields and Wolfe were shot to death in Aurora on June 20, 2005. Marshall-Fields had been scheduled to testify against Owens' best friend, Robert Keith Ray at trial for the murder of Gergory Vann on July 4, 2004. Marshall-Fields and Vann's brother Elvin Bell were shot and injured in the incident on July 4, 2004, where Vann had been trying to act as a peacemaker.

Sir Mario Owens has already received life in prison without parole in the shooting death of Gregory Vann at Lowry Park in Aurora, where he was convicted of being the trigger man. Owens was also convicted at that time of two counts of attempted second-degree murder for shooting Javad Marshall-Fields and Elvin Bell when they tried to stop him from fleeing the scene of the July 4, 2004, violence.

Owens was also convicted on five other counts in connection with the 2005 killing. According to the Rocky Mountain News: "Owens has an extensive criminal history that includes felony manufacturing and possession of drugs. He was carrying a handgun when police arrested him in November 2005 in Shreveport, La."

A New York Yankees cap found near the scene of the crime was linked to Owens with DNA evidence. There were no witnesses to the crime. Testimony from alleged co-conspirators was important to the vedict in the lengthy trial as well.

Unlike many people convicted of murder and sentenced to death, Sir Mario Owens didn't have any obvious history of mental retardation, mental illness or childhood abuse. He was a high school dropout and bad student, but was involved in sports, grew up in a two parent household, and has a mother with a college degree and a managerial job. His dad who was part of his family his whole life and is still married to his mom is a high school graduate. No close family members have criminal records. His older brother Sir Derrius Owen "is a Federal Express employee in Shreveport and a new father who put his wife through nursing school." One of his cousins is a cop. Another of his cousins is an Air Force officer.

In short, absent uncertainty in the accuracy of the verdict, Sir Mario Owens is the kind of murderer whom the death penalty is designed to punish. He appears, at first glance, more sane than either the one man Colorado has executed in the last four decades, or the two men who have been on Colorado's death row in the last couple of years.

Other Persons Involved In The Crimes

Robert Keith Ray was sentenced to 108 years in prison for attempted first degree murder and being an accessory to murder in connection with the July 4, 2004 incident. Ray will be 73 years old when his first parole hearing arrives.

Ray's sister-in-law (Divinia Ilene Ray), wife (LaToya Sailor-Ray) and brother took the stand for the prosecution in the October 2006 trial. Divinia Ilene Ray and LaToya Sailor-Ray were both facing accessory to murder charges for destroying and/or hiding evidence, and in LaToya Sailor-Ray's case also for drug and weapons charges, but are now in a witness protection program. Robert Keith Ray faces a trial in August 2005 in connection with the 2005 killings.

Parish Ramone Carter, who is currently about 26 years old, faces a trial in connection with an alleged threat made in connection with the 2005 killings in February 2009, but prosecutors are not seeking the death penalty in that case. Parish Carter apparently has a third grade education and is believed to be mentally retarded. But was found fit to stand trial.

Percy Alvin Carter age 45 who is Parish Ramone Carter's father and Robert Keith Ray's stepfather was sentenced to 30 years in prison in November 2006 for drug charges and four years in prison for his role in covering up the July 4, 2004 incident.

Vann was 20 years old when he died. Wolfe and Marshall-Fields were each 22 years old and were CSU graduates. Owens is currently 23 years old. Ray is currently either 22 or 23. Elvin Bell was 30 at the time of the shooting.

Jail guard Nicole Sue Beal, 24, who is white, is accused of having an inappropriate relationship with Ray and introducing a knife to a maximum security part of the jail in March of 2007.

Marshall-Fields is survived by his younger sister Maisha Pollard.

Political Context

Sir Mario Owens, Robert Keith Ray, LaToya Sailor-Ray, Javad Marshall-Fields, Vivian Wolfe, and Gregory Vann are all African-Americans (Wolfe was also part-Asian American). It is safe to infer that both Parish and Percy Carter, Divinia Ilene Ray, and Elvin Bell are also African-American. This is notable because nationwide, statistical evidence has shown the death penalty to be most common in cases with black defendants and white victims.

Arapahoe County is a predominantly white suburb of Denver, Colorado, but Aurora in Araphahoe County, where the events unfolded is one of the most ethnically diverse cities in Colorado. While Arapahoe County is solidly Republican and conservative, it has no history of de jure racism, isn't known for anti-black stereotypes, and although all of Colorado was a stronghold of the KKK in the 1920s. The jury in Owens' trial was all white.

Carol Chambers is the District Attorney responsible for Arapahoe County. She has brought a record number of death penalty cases and also attracted controversy for a variety of reasons. This has secured her a Republican primary challenger in this August's primary election in Colorado. This death penalty conviction may impact the outcome of that election.

Colorado's Death Row

The Rocky Mountain News states that:

There is only one person on Colorado's death row now, Nathan Dunlap, convicted of killing four at an Aurora Chuck E. Cheese's restaurant in 1993.

Dunlap in now age 34, at the time he was 20 or 21. He is black and killed four white victims in suburban Denver (Arapahoe County, in fact). Some sources state that the killing was in 1994 rather than 1993. He had prior violent felony convictions with kidnapping in connection with a robbery at a Burger King.

Dunlap's appeals have nearly run their course. He has a federal habeas corpus petition pending in federal district court. If his appeals are denied there, the 10th Circuit Court of Appeals and the U.S. Supreme Court which has already denied his prior appeals, are his only remaining chances at escaping the death penalty short of a pardon. Bill Ritter, the current Governor with the power to pardon him, has shown no sign in his current tenure that he would do so.

Dunlap's appeals have focused on Dunlap's mental health and the failure of his counsel to present his tragic life story to the sentencing jury. Given the 2007 decision of the Colorado Supreme Court in the case of the only other man in Colorado facing the death penalty, Dunlap is likely to be the first person executed in Colorado since 1997 when death penalty volunteer Gary Lee Davis was executed. Realistically, Dunlap's execution, if it takes place, is likely to be in 2010. The last man executed before Davis was sent to the gas chamber in 1967.

The other case that bears mentions in the discussion of Colorado's death penalty is that of Edward Montour Jr. who was sentenced to death in Colorado in 2003 for his confessed October 2002 killing of a prison guard while he was serving a life in prison without parole murder sentence for kiling his infant daughter. He is a classic "death penalty volunteer" who confessed and refused legal representation. When he pleaded guilty he said:

I am antisocial, homicidal and without remorse and will remain a potential threat. The state can kill me, I don't care.

But the Colorado Supreme Court decision in April 2007 reversed the death sentence and remanded the case back to "the trial court for a jury determination of whether to impose the sentence of life imprisonment or death." This hearing has apparently yet not taken place.

Is It Worth It?

The death penalty is very much the exception in Colorado. As of 2006, there were 677 first degree murderers serving life sentence in Colorado.

Given the fact that Sir Mario Owens was already serving a sentence of life in prison without parole (and already faced a minimum sentence of another two such life in prison without parole sentences), his death sentence in this case has done very little to make the public safer. As a multiple murderer, he would surely have been placed in Colorado's highest security prison in any case.

The death penalty Sir Mario Owens faces will almost certainly secure him more effective representation in further appeals than he would have faced had he received a mere life in prison without parole sentence.

An execution for Sir Mario Owens is likely sometime between the year 2018 and the year 2024, if it takes place at all. Sooner within that time frame is more likely than later, because his appeal will be directly to the Colorado Supreme Court, and because three decades after the death penalty has been restored in the United States, many legal uncertainties have been resolved.

Coffee Shop Economics

At a typical coffee shop, a customer, in exchange for purchasing at least one item on the menu, typically for $3 or more, gets:

1. High priced, quality, expresso based coffee drinks and/or expensive snacks and specialty drinks, and
2. A comfortable private place to hang out for rather longer than it takes to drink a coffee, and
3. Free Wi-Fi.

A large part of what customers pay for when they go to a coffee shop is a free Wi-Fi equipped living room to hang out in for a while. A large share of customers have a coffee, sit down, open their computers, and do their work or studying or simply catch up on their personal agendas in a comfortable spot at a convenient location away from the clutter of home or the office.

The market has decided that Wi-Fi is like bathrooms and overhead lighting which are part of overhead, and rather than constituting another product to be hawked for a price.

If you have your own living room with free Wi-Fi already, making comparable coffee drinks with the very same ingredients and a decent expresso machine costs about $1 per 12 oz glass, plus a bit of labor whose cost per glass depends upon what you pay your baristas and how much volume you handle.

This model applies unless, of course, that coffee shop is Starbucks. Starbucks, unlike almost every other coffee shop made in its image on the planet, does not offer free Wi-Fi. Some idiot in corporate struck an exclusive detail for paid Wi-Fi with T-Mobile through January 4, 2009, subject to some limited transition promotions. The result is that Starbucks has seen its stock price drop 50% in 15 months.

Naturally, Starbucks is trying to get out of this suicidal contract that emperils a large share of its business. But, these efforts have drawn, naturally enough, a lawsuit for breach of contract from T-Mobile.

I don't know how much money T-Mobile makes from its deal with Starbucks. I can't imagine that it is much. I rarely see Starbucks customers using T-Mobile service for coffee shop LAN service. They either have Wi-Fi via a Blackberry type connection in their computer that runs over the cell phone network, or they go elsewhere, if they want to connect to the internet.

On the other hand, Starbucks has 15,000+ locations in 44 countries, not all of which have the same density of free Wi-Fi coffee shops found in Denver.

The solution, it seems to me, is for Starbucks to buy out the T-Mobile deal for the value of the profits that they will lose over the next seven months. I can hardly doubt that they have tried and been rebuffed, which is why they are in court right now.

We Have Met The Enemy And He Is Us.

We are the evil empire. The U.S. military, under color of law with orders flowing from an intentionally engaged President on down, detains people carelessly and with no due process and then senselessly abuses them. Congress, including Colorado Democrats like Ken Salazar and John Salazar have put their stamp of approval on these actions, enacting amnesty for the monsters who carried out this abuse in the Military Commissions Act. Our courts have checked the President a little, but not decisively.

Change cannot come soon enough.

15 June 2008

Father's Day 2008

I awoke (at my own pace with a purring cat beside me) this morning to a glorious brunch, buttermilk pancakes, bacon, berries with fresh whipped cream, honeydew melon, orange juice (not from concentrate) and a latte with fresh whipped cream. My children presented me with three cards each, in English, in Spanish (which my wife translated for me), and with bird houses that they presented to me (a delightful product of last night's baby sitting), as well as a fairy garden. The day's paper awaited me at my place and, for once, no one had thrown out one of the two comics sections by mistake.

A call to my brother revealed the details of his recent ascension to fatherhood. A call to my dad cleared up the details of our summer plans, doled out the latest updated on his active life (he's finally cleaning up the study which a childhood friend of mine described as looking like a newspaper stand exploded in it), caught me up on the affairs of my extended family, and provided details more a musical piece based upon the Sermon on the Mount which he commissioned in honor of my late mother.

I'm a lucky dad. My children are well behaved in public, not spoiled, healthy, bright and have not yet developed that serious attitude that apparently often appears in the teen and tween years. Their childhood has been extraordinarily stable. We have lived in the same place for all of their lives that they can remember and have gone to the same school, which is within walking distance of our home, for all of their elementary school years. I work at the edge of walking distance from my home (although I rarely walk), with other people from my neighborhood or close and many clients from my neighborhood as well. We live in many ways a small town life, not unlike the one I grew up in, despite living in a central city in a reasonably large metropolitan area.

It isn't always easy to keep up. They have many interests like quilting, knitting, woodwork, golf, tennis, skiing, gardening, Pokemon and football, that I am ill qualified to supervise or understand (and many of these interests are beyond my wife's experience as well).

I'm not totally clueless. I can put them through the paces of soccer, chess and camping well enough. They can related to Star Wars. The "generation gap" is small enough. We don't have the huge differences in musical tastes or values that prevailed when the term "generation gap" gained currency.

One thing I've pondered a bit recently is "heritage." Our family lives a life tremendously different from the life of my grandparents and that of my wife's grandparents.

My grandparents were rural farmers and lumberjacks who didn't go to college, in immigrant Swede-Finn and German communities respectively. We struggle to make a few potted plants thrive, have almost given up on planting flowers after years of failure, have seen two of the trees present when we moved in to our home die (not necessarily from poor care, but we haven't replaced them) and I am mowing the lawn myself this year for the first time in a decade. Their sense of what rural life involves comes more from Little House on the Prairie than the life their ancestors lived. Not much in our life is distinctively Scandinavian or German. I fully expect that my children will go to college. My wife, I, and each of my children's grandparents earned graduate degrees.

My wife's grandparents grew up in pre-Korean War Korea. A Korean word or phrase is spoken in our house now and then, and we rotate a few Korean dishes in without our otherwise 21st century American diet now and then. But honestly, there is more Spanish spoken in our home than Korean (I think my wife and the kids get a kick out sharing a secret language that I doesn't understand), and we probably eat more Mexican or Mexican derived food than we do Korean food (ironic because my wife's parents are no fans of Mexican food at all, despite living closer to the Mexican border than we do). Many children adopted from Korea by people with no links to Korea at all probably know more about Korean culture than my own children do. My sister in law, in heavily Asian-American Seattle, has kept up the ties and traditions far more than we have, although we have not entirely ignored them. Our children do have Korean names as well as American ones, for example.

Both my parents and my wife's have been reasonably devout Christians and my wife and I were both raised that way. Now, my wife and kids go to a Unitarian church a few times a year, at best. I'm dragged along every couple of years or so. And, what of the pre-Christian traditions on my wife's family, celebrated when one of her paternal grandparents died? What is my children's religious heritage?

Does your children's heritage include things that you haven't absorbed from your own parents? It isn't just my wife and I that are at fault. Both my generation and that of our parents have changed their lives dramatically from rhythms of life that were long standing in their ancestors. The cumulative effects of two generations of break neck cultural change have brought our children a world away from their roots. Culture isn't in your blood. So, why should the traditions of your distant ancestors be paret of your heritage if it hasn't been passed down from each generation to the next?

The work my father commissioned in honor of my late mother will be sung between the reading of the Gospel upon which it is based, and the Sermon at his Lutheran church. This is the way that Bach's Cantatas were sung in a 16th century Protestant liturgical innovation, an innovation that everyone had forgotten until my dad came across it in a college lecture on Bach. Is the reinstatement of that ancient tradition, long since abandoned, an innovation or part of his heritage? Does it matter?

Right now, for the children, these questions are beyond them. Their culture is what they live, period, without doubts and curiosity about what else it could have been. But will that change as they reach their teens and twenties? Will they go to high school or college and suddenly seek to reclaim a heritage that their parents and grandparents, taken together, failed to pass on? Or, will they follow two generations of family tradition and strike out in new directions of their own, something that they are already starting to do in their hobbies and interests? Will they look forward, back or both? Only time will tell.

13 June 2008

Social Promotion At DPS

DPS, unlike other metro districts, allows parents to decide whether their children are held back a grade until they reach high school. Few choose to hold them back.

Not until grade 9, the freshman year of high school, do students have to earn a certain number of class credits to be promoted. . . . About one in four DPS students . . . [fail] enough courses that they have to repeat ninth-grade classes as tenth-grade sophomores. . . 45 percent — later drop out of school altogether.

From here.

The story goes on to discuss Bruce Randolph School's decision to urge parents to opt out of social promotion and the school's use of summer school classes to get kids caught up.

12 June 2008

Guantanamo Bay Detainees Have Habeas Rights

The U.S. Supreme Court ruled 5-4 in the case Boumediene v. Bush today that detainees at Guantanamo Bay have a right to bring habeas corpus cases in federal court. The habeas corpus jurisdiction stripping provisions of laws enacted by Congress to deny them this right (the Detainee Treatment Act and the Military Commissions Act) were held unconstitutional.

In another detainee case, Munaf v. Geren, the U.S. Supreme Court held unanimously, that the federal courts have habeas corpus jurisdiction over U.S. citizens held in military custody by U.S. soldiers in a military chain of command, even if they are part of a larger military coalition.

But the U.S. Supreme Court also held that on the merits in that U.S. citizens who travel voluntarily to a foreign country and are held there by U.S. military authorities may be transferred to the custody of local courts to face criminal charges arising from conduct in that country. No exception to this ruling on the merits exists even if the local courts don't meet U.S. constitutional standards and local authorities are alleged by authorities other than the U.S. Executive Branch to be likely to engage in torture in the particular case before a U.S. Court.

The later opinion involved U.S. citizens who voluntarily traveled to Iraq and faced indictment by Iraqi courts for offenses committed in Iraq. Thus, this leaves open the more general question of the legality on the merits of extraordinary rendition of U.S. citizens to countries whom third parties claim engage in torture. The question of whether the U.S. military may transfer someone to foreign authorities whom it openly agrees are likely to torture the person transferred also remains unresolved.

These cases also leave open the jurisdiction of U.S. courts in habeas cases involving people who aren't U.S. citizens in places, unlike Guantanamo Bay, where the U.S. does not have de facto sovereign authority, although the Guantanamo Bay case made clear that the proper analysis hinges on the objective reality and practicalities involved, rather than legal formalities like sovereignty. The Guantanamo Bay case also suggested that a government intent to evade habeas corpus jurisdiction by its actions was a factor to be considered, and that an intent to evade habeas corpus jurisdiction hurts the government's case.

The scope of habeas review is unclear. But it appears that detainees will be allowed a full evidentiary hearing in a federal courts with the power to release them from custody on the questions of whether the detainee is indeed an enemy combatant, and on the question of whether the President had the legal authority to detain the detainee given the findings of fact made in the federal court. The Combat Status Review Tribunals currently in place to make enemy combatant determinations were found by the U.S. Supreme Court to be constitutionally inadequate.

The ruling leaves in tact provisions of the Military Commissions Act establishing an amnesty for U.S. government officials who committed war crimes during the Bush Administration from civil and criminal liability, and a prohibition on entertaining civil actions of detainees other than habeas corpus petitions in connection with their detentions.

While the rulings have no direct impact on the military commission trials of a couple dozen detainess for war crimes, legal commentators have suggested that the ruling may enlarge the scope of legal arguments that counsel for the detainees may make before those Commissions by clarifying that U.S. Constitutional protections apply to detainees at Guantanamo Bay. For example, detainees in custody prior to the enactment of the Military Commissions Act may be allowed to argue that under the Ex Post Facto clause, they may not be tried for crimes like conspiracy, which were not considered war crimes prior to the enactment of the Military Commissions Act. The admissibility of evidence based upon coerced testimony (i.e. torture) may also be in doubt. And, this ruling probably spares Omar Khadr from the possibility of the death penalty, because he was a juvenile at the time that the alleged war crimes were committed.