Wrongful Conviction Remedies

Once again, the "shit happens" defense strikes, and an individual whom it appears very likely was harmed by malicious actions of someone involved in law enforcement that resulted in a conviction of first degree murder, is left with no remedy because the exact details of how this was accomplished is difficult to prove. The 8th Circuit Court of Appeals opinion describes in detail the outs by which the various parties involved escape liability.

Civil rights law needs fundamental revision along the line of the tort laws that apply in the private sector. Most importantly, governments need to be held vicariously liable for violations of civil rights committed by individuals acting as their agents or employees. This would create an strong incentive for governments to meaningfully self-police rogue individuals in their employ, and would provide individuals with a remedy when it is clear that someone violated their civil rights, even when proving exactly who did it is impossible.

In this case, someone fed a jailhouse snitch information from a police report which was used to produce a false confession. Someone offered to bribe a fellow inmate to testify claiming that a confession that wasn't made was in fact made by the defendant. Someone suppressed exculpatory evidence, including secret tape recordings that revealed that the defendant knew nothing about the crime they allegedly committed. Someone tainted witnesses before they gave evidence to the court and didn't fully disclose the extent of that taint.

The victim of these acts spent sixteen years in prison as a result. But, a combination of immunity doctrines and a lack of vicarious liability has held no one accountable. If no one is held responsible when gross misconduct wrongfully imprisons someone, than this kind of conduct will continue to occur.

Hat Tip to How Appealing.

Useless School Ranking Lists

Newsweek has a list of what it calls the 100 best high schools in America. But, my Denver readers will have to commute about 12 hours each way, every day to attend the closest one (a charter school in Tucson), and that won't leave a lot of time to actually attend classes. The reality is that K-12 education, for all but a very thin sliver of society that goes to boarding schools like Exeter (in addition to college prepartory programs, a few cater to children with special needs or disciplinary issues), is a local market.

The ranking is based on the percentage of students who take Advanced Placement and/or International Baccalaureate tests. George Washington High School in Denver, which has an IB program, might qualify as the very top (at #124 it is the second highest ranked school in the Rocky Mountain West after Lakewood High School in Lakewood, Colorado at #119), but for the fact that it has non-IB program students in the same building. Basically, it notes schools that not only have honors programs, but are honors programs, or draw from very affluent communities.

The State of Colorado, by the way, does not agree with Newsweek in its praise for George Washington High School. It calls student achievement there "average" and declining.

The truth is, that both are correct. The average student at GW is not stellar academically, but it does have an IB honors program of students who are performing very well academically. In this case (and it is not the only one in the Denver schools), the relevant microenvironment is not even a single school, it is a program within that school. Also, of course, neither Newsweek nor Colorado are measuring what really matters, which is value added. The entering class at Harvard would perform well academically even if all of the professors went on strike and the students had to teach their own classes for four years. And, even the MIT mathematics faculty would probably not bring the bulk of Manual High School's entering class up to grade level in math, although they would probably make more progress towards that goal.

Christians Against Contraception

The New York Times Magazine, today, reviews at length the Christian anti-contraception movement.

Names that crop up as involved or heading towards becoming members of the movements include the, United States Conference of Catholic Bishops, the lay Catholic American Life League, the Christian Medical and Dental Associations (led by people such as Dr. Gene Rudd), the public-interest law firm Americans United for Life (of whom Edward R. Martin Jr. is one attorney), F.D.A. Reproductive Health Drugs Advisory Committee members Dr. Joseph B. Standford and Dr. W. David Hager, Ron Stephens who is a pharmacist and a Republican state legislator in Illinois. Focus on the Family, the Christian Coalition, R. Albert Mohler Jr. who is president of the Southern Baptist Theological Seminary, and Republican members of Congress such as: Representative Roscoe Bartlett of Maryland, Representative Chris Smith of New Jersey, Representative Joe Pitts, Representative Melissa Hart of Pennsylvania and Senator Tom Coburn of Oklahoma.

George W. Bush has still left unanswered the question "do you support the right to use contraception?"

Abortion is a controversial issue. Contraception is not, outside a fringe of conservative Christian activists. It is, in short, a classic wedge issue, one that divides those active in the Republican party, and does not bother even anti-abortion Democrats. It is, therefore, an issue that Democrats should not shy away from pushing politically.

Colorado Court of Appeals Judges Appointed.

"The governor has appointed Steven Bernard, Jerry Jones and Diana Terry to the Colorado Court of Appeals, to fill the new judgeships created during this legislative session." From here (May 3, 2006). Notably, neither of the two sitting judges in the ranks of the nine finalists for the positions were selected.

The nominees were listed here and the creation of the posts was previously mentioned here.

The Federal and Colorado Death Penalties

The vast majority of death penalty cases take place in the state court system. The federal civilan death penalty was held unconstitutional in 1972 along with the death penalty in every state (the last pre-1972 federal civilian execution was in 1963 for kidnapping) and reinstated in 1988 with the federal drug king-pin statute. The federal death penalty was greatly expanded in 1994.

Disposition of Federal Capital Cases

According to the New York Times:

In the 136 capital cases the federal government has brought in the last two decades, 122 convictions have been obtained, according to the Federal Death Penalty Resource Counsel Project, a group that assists lawyers defending federal capital cases. But the juries in those cases imposed death sentences only 49 times.

As of March 28, 2006, 43 prisoners are on federal death row, including 4 whose convictions or sentences have been cast in doubt by court action but not finally vacated. Twenty-one of those prisoners were sentenced in 2001 or later (i.e. during the George W. Bush administration).

There have been 3 federal executions under civilian authority in the period from 1977 to November of 2004 (two in 2001, the first in the federal system in 38 years, and one in 2003).

Three other people were removed from federal death row in that time period. Two of them had their death sentences reduced to life in prison on appeal. One of them had his sentence commuted to life in prison by President Clinton in a case where many government witnesses had recanted their testimony and the conservative 11th Circuit Court of Appeals first set aside, and then on en banc review, reinstated the death sentence in a 6-5 decision, and there was further review pending.

Federal Death Penalty Crimes

Six of those convicted, including three co-defendants in a single case in 1993, were sentenced to death based on the 1988 federal drug king-pin statute murder in the course of a drug-king pin conspiracy. One was executed in 2001, the three convicted as co-defendants await executions currently scheduled for next week, one had his sentence reduced to life in prison on appeal in 2000, and one has his sentence commuted in 2001.

The remainder of those on death row were sentenced under an expansion of the federal death penalty to include 60 different additional crimes in 1994. All but four of the federal death penalty crimes involve a homicide with some special factor aggravating the case.

There are four offenses not necessarily resulting in death to which the federal death penalty applies. They are:

Espionage (18 U.S.C. 794)

Treason. (18 U.S.C. 2381)

Trafficking in large quantities of drugs (18 U.S.C. 3591(b))

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. (18 U.S.C. 3591(b)(2))

Everyone current on federal death row or executed since 1988 was convicted of murdering someone, or of directing a murder that was actually carried out. All but five of those on death row right now were convicted of offenses that took place in states with a death penalty.

Since 1927, all civilian federal executions have been for murder except for two federal executions for espionage (the Rosenbergs) in 1953, two federal executions for rape in 1957 (the Krulls), and four for kidnappings not resulting in death (in 1936, 1938, 1956 and 1963).

More information on the federal death penalty can be found here.

The Military Death Penalty.

In addition to those facing executions in the civilian system, there are nine people on the U.S. military's death row who got there via courts-martial, three of whom have convictions or sentences that are in doubt because of decisions made in the appellate process, but who have not finally had death sentences set aside. The last U.S. military execution took place in 1961 and was of an individual convicted of rape and attempted murder. Notably, this means that not a single military justice execution took place in the entire course of the Vietnam War. The military death penalty was held unconstitutional (for procedural flaws) in 1983 and reinstated in 1984. All of the men on military death row were convicted of an aggravated murder.

Six German soldiers were executed for sabotage not resulting in murder in the U.S. in 1942 after trial before a military commission.

Colorado and the Death Penalty

No crime committed in Colorado since it was admitted as a state has ever resulted in a federal execution. No one has been sentenced to death for a federal crime committed in Colorado since, at least, the time when the federal death penalty was reinstated. But, Timothy McVeigh, the Oklahoma City bomber and one of only three persons executed for federal crimes since 1963, was tried and convicted after a 28 day trial in Denver in 1997, a venue chosen to avoid the prejudice that might have arisen had he been tried in Oklahoma. The was no serious suggestion after his conviction that he was not guilty of the murder, although there was lingering doubt about whether there were other co-conspirators.

Colorado has had one execution since the death penalty was reinstated after 1972, which took place in 1997 when Gary Davis was executed. He confessed to the rape and murder for which he was convicted in open court during his 1987 trial (obviously, against the advice of his attorneys), and claimed to have committed 14 other rapes after he was convicted of murder.

There are currently two people on death row in Colorado (previous discussion on this blog is found here).

Nathan Dunlap was convicted in 1996 for the murder of four employees at an Aurora Chuck E Cheese’s restaurant. Dunlap's appeals have focused on his inability to fully present mitigating evidence at his sentencing hearing, his current mental health and the validity of prior convictions used as aggravating sentences justifying a death penalty sentence in his case. His final state appeal is pending in the Colorado Supreme Court (all of his appeals thusfar have ultimately failed, the status of the case in 2001 was summed up by the Colorado Supreme Court in its opinion), which he will probably then appeal to the United States Supreme Court. He will then seek habeas corpus review, first in the United States District Court for the District of Colorado, then in the 10th Circuit Court of Appeals, and finally in the United States Supreme Court.

Edward Montour Jr. was convicted in 2003 for the murder of a prison guard, on the basis of his own guilty plea while insisting upon representing himself.

He continued to represent himself in the penalty phase, presented no mitigation, and was sentenced to death by Judge King of the Douglas County District Court.

Continuing pro se, Mr. Montour then waived any post-conviction challenges and now seeks to waive any appeal other than the mandatory review by the Colorado Supreme Court. The Supreme Court has remanded the case to the District Court for determination of Mr. Montour's competency to waive his appeal, and counsel has now been appointed over Mr. Montour's objection to litigate the issue of competency.

When he plea was taken he said: "I am antisocial, homicidal and without remorse and will remain a potential threat. The state can kill me, I don't care."

Prior to 1972 there were 101 executions in Colorado (including 11 prior to Colorado being admitted as a state, and hence under federal territorial authority of some type), the last of which took place in 1967. From 1859 (when Colorado was a territory) to 1933, executions were conducted by hanging, from 1934-1967 a gas chamber was used. In 1997, the execution was carried out by lethal injection. All executions for Colorado crimes have been for murder, sometimes in connection with another serious felony such as robbery or rape.

As of March 2006, there were 676 people serving prison sentences for 1st degree murder in Colorado, all of whom would have been eligible for the death penalty based on the crime for which they were convicted (although this would not necessarily have been sought by prosecutors in every case). Some of those individuals were sentenced to death but had a sentence converted to a life sentence for reasons such as having the sentence imposed by a judge rather than a jury.

Missile Defense and Blimp Funding Shifted And Cut

The House of Representatives, in an early stage of the budget process, has cut funding for missile defense and shifted funding that remains to sea based systems and point defense systems for conventional threats that have done better in early testing (emphasis added):

The Missile Defense Agency's budget request was shrunk by $183.5 million.

The Ground-based Midcourse Defense (GMD) program, whose interceptors are currently being fielded in Alaska and California, has $200 million fenced until the Department of Defense (DOD) certifies that the program has successfully hit a target on two separate occasions. Such tests are planned in 2006.

The Committee also cut all funding - $55.8 million - for a third interceptor site in Europe.

The Multiple Kill Vehicle (MKV) program was cut by $65 million. The Kinetic Energy Interceptor (KEI) program was cut by $100 million. Both programs have long-lead technologies that at best will not be ready for fielding for over a decade.

The High Altitude Airship (HAA) program was reduced by $40.7 million.

Some missile defense programs received increased funding: the GMD program received an extra $20 million for testing and operation resources; the Aegis Ballistic Missile Defense system received an extra $40 million ($20 million of which is for new interceptors); the Army received an additional $140 million for transitioning its Patriot Advanced Capabilities (PAC)-2 systems to the PAC-3 configuration.

The committee directed that technologies for the Advanced Optics and Laser Technologies project development cannot be used for the development of laser space technologies that could be used to target satellites.

Money cannot be used for a space-based missile defense interceptor until a report detailing the purposes of such a program, its estimated costs, potential vulnerabilities, and international consequences has been submitted.

The decision could be overturned at many future points in the process.

TSA Blacklists Anti-Terrorism Officials

The Transportation Security Administration's airline screening system "tends to mistake government employees and U.S. servicemen for foreign terrorists," he writes in today's Wired News. "Newly released government documents show that even having a high-level security clearance won't keep you off the Transportation Security Administration's Kafkaesque terrorist watch list, where you'll suffer missed flights and bureaucratic nightmares."

For example, the watch list stopped an Army officer in the business of stopping terrorists from getting weapons of mass destruction, who was currently on active duty, with a ticket paid for by the Army, from flying.

I feel safer already.

Yesterday's Colorado Court of Appeals Action

The Colorado Court of Appeals made a decisions with a few interesting nuances yesterday.

Governmental Immunity Not Expanded To Independent Contractors For Government.

One was a suit against the Lottery Commission and Texaco (a lottery ticket seller) alleging that selling scratch games when the prizes had already been awarded gave rise to legal liability (many such suits have been filed nationwide).

The Court of Appeals affirmed that the lottery commission was free from liability, noting that the action was a "tort action" rather than a contract action, because the representations concerning the odds of winning which were the basis of the suit were made before the scratch games were purchased, and because the lottery commission as a governmental entity, was protected from tort suits by governmental immunity. This was a relatively straight forward application of existing law.

More notable was that the Court of Appeals rejected the argument that Texaco could benefit from governmental immunity, even though it was a licensed seller of a government authorized product. The Court of Appeals ruled that governmental immunity depends upon the possibility that taxpayers will end up paying for any ultimate judgment, and that independent contractors for the government aren't in that position. Thus, Texaco will have to find a different argument if it wants to avoid liability for selling worthless scratch games, even though those scratch games were specifically authorized by a governmental agency (I would suggest that they strongly consider a lack of duty argument along those lines).

This follows a similar case in Colorado in the area of private prisons, in which the Courts have held that private prison operators are also not entitled to the governmental immunity that applies to governments and government employees in public prisons.

Apparent Authority And The Statute Of Frauds.

In another case, the Court of Appeals upheld the firing of a medical employee who was an employee at will at a hospital. It held that only firings that are for adherence to ethical standards which can result in legally enforceable discipline, rather than mere private professionalism standard come into a public policy exception for wrongful termination of employment has some relevance. It also noted, with somewhat tortured logic, that the state's quality management statute protects only those who insist on keeping confidential records confidential; it does not protect the whistle blowers who actually provide the confidential information to a quality management committee when the employer knows that a report to the committee was made, but doesn't know precisely the content of that confidential report. (The case probably would have been a loser anyway, as one of the grounds for discharge was the presumably good cause of a serious delay in giving patient medication.)

The more interesting part of this case was some very clever language in an employee policy manual which the employee sought without success to enforce as a contract. The language was contained in a disclaim at the front of the policy book that notes that everyone is an employee at will. This statement alone is pedestrian. Every employee policy handbook says that. More interesting was an additional part of the disclaimer, whose importance I will explain before I quote it.

Colorado law strongly disfavors written contract provisions that state that the contract can only be modified in writing. In fact, provisions that say so are void as a matter of law in Colorado, even though they are routinely found in contract boilerplate. Companies want those provisions very badly, however, and routinely put them in despite the fact that the law clearly holds that they are invalid.

Why do companies want these terms so badly? Part of it is an issue of proof. A contract case with only written documents and testimony about the alleged breach of contract itself are very inexpensive to bring a lawsuit over. The contract terms are established conclusively and quickly. A case with extensive oral testimony is very expensive to bring or defend. Every conservation during the history of the relationship is potentially relevant as a source of oral contractual terms.

Also, big organizations don't want low level sales people and managers making decisions on the boilerplate terms of its agreements with customers or other people with whom it routinely enters into contracts. It wants those decisions made at the top, by the legal department and senior managment. But, normally, those efforts are to no avail. The "apparent authority" doctrine of agency law hold that a business is responsible for the acts and statments of anyone who appears to have authority to act as an agent of the business. Most managers, even at the lowest level, seem to have broad responsibility in personnel matters, including the power to hire and fire. So, generally, the statements of even the lowliest manager about an employee's employment relationship with the business are normally binding on the business as an oral contract with an agent of the business who has apparent authority to enter into that kind of contract. This is so even if they would never presume subjectively that they could write up a written emplyment agreement with that same employee without approval from management. What matters is the power the manager appears to have, not the power the manager subjectively believes that he or she has inside.

How does Centura deal with this problem in its employee policy manual? After stating that everyone is an employee at will, it states:

Only the CEO, Executive Vice President and Senior Vice Presidents and Site Administrators have the authority to enter into an "Employment Agreement." Such an agreement is valid only if reduced to writing and signed by one of the above officers and the employee. No other representative has the authority to make representations, promises or agreements regarding term or conditions of employment.

Now, if in fact the Executive Vice President has spoken to the employee in question and made an oral promise concerning that employees employment, I very much doubt that the Colorado courts would uphold the writing requirement of that paragraph. But, that isn't the genius of the provision. The genius of its is attacking the problem by narrowing the scope of people who have apparent authority, rather than relying prinicipally on a writing requirement.

The reality is that low level employees in big businesses almost never have any conversations with senior management, and that senior employees are also far less likely to say something stupid about an employee's employment relationship than junior managers.

Unlike ordinary third party bystanders, it is quite hard for an employee who have been given a written employee policy handbook (who indeed, often has little choice but to try and rely upon it in bringing a wrongful termination suit) and who has signed a statement saying that they have read it which is in their personnel file, to claim that a low level manager has the authority within the business to make binding statements about employment relationships, when the employee has been told otherwise in a writing that they have agreed in writing to having read.

To really make the policy work, you would want to have every single hiring and every single firing signed off on as a formality on every single employee by the Site Administrator (otherwise one could argue that Employment Agreements of some type are routinely entered into and ended by lower level managers), but this is no big deal in practice. If the Site Administrator, in practice, follows lower management recommendations 99.9% of the time, and the business has even 3,000 employees at the Site and 20% turnover per year, the burden for the Site Administrator only a moment, a few times a day, to sign off which provides real protection in any future employement lawsuit, which is a major concern of most organizations with thousands of employees. If it becomes to much of a burden, the list of people with the authority to handle the chore can be slightly expanded to include the deputy site administrator, or the head of the HR Department at the site.

Thus, by limiting who can make a decision, rather than primarily relying on the formal manner in which a decision can be made, the big business gets the benefit of keeping out almost all oral evidence about employment terms, without going astray of Colorado law. This works less well when one deals with the outside world, but for employees it could be very effective at shutting down the whole class of implied employment agreement lawsuits.

Bad Law On Governmental Immunity For Automobile Accidents

The Colorado Court of Appeals has held, interpreting an inartfully drafted part of the Colorado Governmental Immunity Act, that if a governmental employee in the course of his governmental duties, while driving his own vehicle (for which the government is reimbursing him on a mileage basis) negligently injures you in an automobile accident, that the injured party has no right to sue either the government or the negligent employee who caused the accident.

There is an exception for governmental immunity for car accidents, but it applies only if the vehicle is owned or leased by the government. If the vehicle belongs to the employee, both the government and the driver are immune from liability.

The notion that a governmental employee is liable for negligent driving if he injures you while driving a government vehicle on governmental business, and while driving a private vehicle while on private business, but not while driving a private vehicle on governmental business, is absurd as well as harsh. But, if you want to base your law on the exact language of the statute drafted, considerations like this case, that rushed lawmakers never get around to resolving as they word their statute, fall through the tracks and seriously injured people get screwed. Unfortunately, the Court of Appeals, while knowning that this was the wrong outcome, and very likely was not what the legislature intended, was not clever enough to find a way out of the ill worded law. Perhaps this case will be appealed to a more clever Colorado Supreme Court, or perhaps the legislative body in question will recognize their moral obligation to compensate this individual and pass a special bill to compensate him even without legal liablity.

This is particularly a concern because the arrangement involved in not uncommon, and we really don't want anyone other than emergency vehicle operators with their signals on to know with confidence that even if they screw up that they can't be sued. If this case isn't overturned on certiorari, the General Assembly really should take up a bill amendment the Governmental Immunity Act to address this flaw and to instead allow suits in any case where a vehicle is operated in the course of governmental business, in the interest of public safety and fairness.

Annoying Error Message Pop Ups

If you own a Windows based computer, you have seen them. Somehow, some way, the computer decides that something has gone wrong and up pops an error message, demanding your attention.

Some of these error messages are actually helpful. If you have a word processing program running when you shut down, for example, the error message asks you if you really want to shut down even though you will lose your data. These error messages give you a choice. Stop what you set out to do, or go forward. I like these pop ups.

But, I despise the error messages that give you no choice. The come onto your screen and won't permit you to do anything else until you hit OK. The error messages themselves are generally too cryptic for a lay person to understand. The OK button does not actually cause you to participate meaningfully in directing the computer, when you hit OK, you are simply ratifying the fact that the computer won't let you do anything else until you click on it.

This serves no humanly clear purpose except to aggravate you, yet they are everywhere in Windows based systems. Anyone who can explain this for me is welcome to do so in the comments.

Wash Park Prophet Arabic Edition

I think it is unthinkably cool that people are reading my ruminations on automobile accident tort law in Arabic. An excerpt appears below:

21 نيسان / ابريل 2006
عدم ابقاء المراقبه المناسبه ضد يحدث برعشيت

حوادث السيارات تحدث عاده نتيجه نيليجانس.

احد الاشياء والاشكال القانونيه وعمله المهني مثل الذين اصيبوا او عاءلات الاشخاص الذين قتلوا في حوادث السيارات. نظريه الدعوي مثل هذا يكاد يكون داءما "الاهمال" ومن انواع شاءعه من الاهمال نسبت الي المخطء الساءق في قضيه مثل هذه القضيه "عدم ابقاء المراقبه المناسبه. "

وهذا مناسب في معرض التندر. احد اهم العوامل في غير حاله الوفاه حادث السياره وهو معالج رنين الهاتف الخليوي في فوتويل. وفي حادث اخر في خطا الساءق اعترف بانه عندما يحول فجاه توقفت حركه المرور في خروج السلع. هناك فقط حاله واحده حادث السياره استطيع ابدا ان نذكر المناوله وقاتله ، دون ادعاء فيها حيال كل ساءق المخطء فعلا. فهي معقده مركبه ، متعدده مسلسل حادث سياره عندما تنامي الي السيطره علي الطرق تسبب مركبات اخري للرد علي هذا الحدث.

الان دراسه جديده من تحطم وقرب تحطم اجرته الوكاله الوطنيه للطرق السريعه الحركه اداره السلامه وفيرجينيا تك النقل المعهد باستخدام شريط فيديو دراسه الساءق التصرف يدل علي ان عدم العيش السليم المراقبه اكثر خطوره مشكله من يعتقد من قبل ، لانه يصعب اثباته.


تصرف الساءقين شاركوا في حوالي ثمانيه من اصل 10 اصطدام او تحطم القريب. . . . بيانات تقارير الشرطه قدرت ان الساءق كان الاهمال عاملا في حوالي 25 ٪ من حوادث الاصطدام.


ووجدت الدراسه ايضا ان :


نعسان يقود الساءق زياده خطر حدوث حادث او القريب العاجل اربع مرات او ست مرات ، قالت الدراسه. لكن مءلفي الدراسه نعسان : كثيرا ما يتم القياده في تحقيقات الشرطه.


حوادث المرور 43،200 شخصا قتل في الولايات المتحده عام 2005 ، والسبب مءات الالاف من اصابات خطيره.

ما هو الرد المناسب القانوني؟

الماده الدراسه ايضا ابلاغ هذا الرد :


"احث المشرعين لا تفسر هذه النتاءج علي الحاجه الي مبادرات تشريعيه جديده. وليست السياسه العامه الجيده اصدار قوانين تتناول كل انواع السلوك ، وساءق "وقال اللفتنانت كولونيل جيم الشمبانيا رءيس مجلس اداره جمعيه سلامه الطرق.


في المستوي الاول ، واعتقد ان هذا هو الحق. ومن المحتمل الا تكون الطوافه قوانين جديده تحرم كل انواع معينه من السلوك ساءق يمكن تخيله. جزء من المشكله هو انه من الصعب تحديد الفواءد الاجتماعيه من انواع السلوك ، مما يجعل من الصعب تقدير تكاليف هذه التصرفات ضدهم لتقرير ما اذا كان ينبغي منعها ، حتي ولو كنا نعرف تلك التكاليف. وفي نفس السياق ، يمكننا القضاء علي الحوادث المروريه كليه القياده القضاء ، وان كان لها تكاليف اجتماعيه كبيره منها.

ولا يعني ذلك ان السلوك المعنيه مثل الاكل والشرب ، والاستماع الي الموسيقي ، او يتحدث الي شخص علي الخليوي سيءه. والمشكله هي ان هذه الخلافات هي سبب المشكله عندما تصل الي المستوي الذي يسبب الحوادث. لكن هذا لا يعني ان زياده عقوبه المخالفات القاءمه ، مثل عدم ابقاء المراقبه الصحيحه ليس مناسبا ، ونحن نعرف ان هناك مشكله اكثر خطوره مما كان يعتقد من قبل. واعتقد ايضا ان هذه الدراسه تقدم ادله قويه علي ان بعض التفاصيل عن خطا مسءوليه حادث السياره الي تغيير النظام.

من اهم الامور ان هذه الدراسه الجديده تظهر ان اهمال ساءق يشكل عنصرا هاما في معظم الحوادث. هذه الدراسه تبين ساءق الاهمال علي اكثر من مشكله من التي تم وضعها من قبل اقل التفتيش طرق البحث التجريبي ، مثل استعراض تقارير الشرطه بالمقارنه مع اشرطه الفيديو الحوادث وقرب الحوادث المستخدمه في احدث دراسه. وهذا امر مهم لانه كما اشرت سابقا في بلوغ هذا واحد من اهم دفاعات الاهمال في العمل "برعشيت يحدث" الدفاع. "برعشيت يحدث" الدفاع يتضمن الحالات عندما وقع الحادث ، ولكن الطرف المتضرر غالبا بسبب عدم توافر الادله ، ولا يمكن تحديد معين اهمال من جانب المخطء ساءق التي ادت الي الحادث.

اما السهو نتيجه نعسان الساءق او بعض ديستاكتيون مثل الخليوي او الاستيلاء قهوه هو نوع من الاهمال الذي لا سيما من الصعب اثبات ما لم يكن المخطء يعترف الساءق. عاجل نعسان كل الهزات واستيقظ الساءق ويمكن ان يسبب صدمه من الصعب التمييز الخمول. بدون اشرطه الفيديو ، ومن الصعب تحديد من الادله الماديه التي الساءق العمل في الدقيقه لحظه وقوع الحادث ، وان تاثير اضطراب ما في السياره وغالبا المزيج هو المخطء الساءق في الذاكره. والواقع ان الخلافات غالبا ما يكاد الوعي بانشطه الساءق ليس بنشاط التفكير عند حدوثها ، وقد لا يذكر صراحه الا بعد فوات الاوان.

لكن التغيرات التي طرات علي قانون الاضرار المدنيه القواعد التي تحكم دعوي تعويضات حادث السياره في الحالات قد يكون من المناسب ردا علي هذا الدليل التجريبي.

معالجه مشكله التعويضات تعديل النظام.

ان مثل هذه الدراسات الاخيره احده صحيحه والعداله سيكون افضل خدمه الافتراض بان اي حادث بسبب اهماله شخص ما لم يثبت خلاف ذلك. عموما الافتراضات القانونيه التي تطبق في حال عدم وجود ادله علي انتاج ادق القرارات اذا كانت مباراه تجريبيه والارجح الوضع. ولن يكون مجرد نظام المسءوليه الصارمه. اصابه الساءقين وكثيرا ما ينتهي الامر الي وقوع حوادث بسبب اهمالها الذي ينظمه المذاهب مثل التقصير والاهمال مساهم. وبعض الناس الذين ليسوا اطرافا في الدعوي الخطا. لكن من النادر ان يحدث حادث.

ونظرا لان فعلا خطا الحره الحوادث نادره ، الحاله الراهنه للقانون الذي يفترض ان لا تقع في الخطا حتي الاطراف المتضرره يثبت خلاف ذلك كثره الادله التي تجعل من "برعشيت يحدث" حاله التخلف القاعده ليس افضل من توزيع المسءوليه في حوادث السيارات. عتبه عندما تبين ان الحادث وقع قد استوفيت واحتمال انه ليس ثمه خطا ضءيله جدا.

افضل حكم : (1) يفترض ان الشخص المخطء في كل حادث ، (2) تتخذ حتي تسلم الموقف بين الطرف المتضرر والمتهم يفترض ان جميع الساءقين في حوادث مماثله في الخطا حتي يثبت العكس ، اي خطا في النظام المقارنه يعني ان المدعي عليه ان يدفع نصف الخساءر التي منيت بها الطرف المتضرر ، (3) تحتفظ كولورادو القانون الحالي عبءا علي المتهم ان يحدد اي طرف اخر يمكن من المخطء اذا كان المتهم يعتقد ان كانت لا والمسءوليه علي الطرف المصاب ينضم كل ذلك اعتبرت طرفا في الدعوي ، و (4) القاء عبء الاثبات علي المتهم لبيان لا احد علي الاطلاق في الخطا ، ايجابا الدفاع اذا كانت هذه هي نظريه المتهم في القضيه.

هذا النهج يجعل القضاء التام كولورادو القاعده تمنع اي مسءوليه اذا كان الطرف المصاب اكثر من 50 ٪ في الخطا مرغوب فيه ، وان كان اكثر تساهلا القاعده ، فيما عدا المسءوليه ، مثلا ، للاحزاب اقل من 5 ٪ في الخطا اذا كانت جميع الاطراف الاخري مجتمعه تشكل في مجموعها اكثر من 50 ٪ في الخطا ، وعدم الرهان علي قضايا قليله لا تكاد تذكر الناس المخطء في الحادث قد يكون مناسبا. انهاء 50 ٪ + اهمال اشتراكات النقابه الدعاوي التي تجعل المعني ، حتي في ظل القانون الحالي كولورادو الضرر. وخلافا لمعظم الدول التي تعقد كل قليلا حتي المخطء مسءوله عن كل الاضرار الناتجه عن الحادث اذا كان المدعي من الاحيان ، كولورادو لا مجتمعين ومنفردين مسءوليه مرتكبي في حوادث السيارات. وهكذا اذا المتهمين كل 30 ٪ المخطء ، بل هو مءمن ، والاخر غير مءمن ، والمعسر ، المءمن الساءق ليس مسءولا عن دفع التعويضات المستحقه علي الساءق غير مءمن. فلماذا امر الي شخص 45 ٪ في خطا ادي الي حادث خطير ، اذا كان 55 ٪ ريسبونسيبليتي عاتق الشخص او مجموعه من الاشخاص بجروح وطرف ثالث ساءق؟

وهذا من شانه ان يءدي الي مزيد من النتاءج العادله في شاءعه نسبيا حاله سوموني لاصابه في حادث سياره ، الا ان الشخص لا يستطيع ان يثبت محدد تقوم به الساءق الاخر ان سبب الحادث غالبا لان المصدر الوحيد الاخر هو دليل الساءق الخاص بشهاده بخصوص السهو في لحظه الحادث. بدلا من ذلك ، اذا كان الشخص المتضرر ان يثبت انه كانت دون خطا والاخر ساءق يفترض ان يكون علي خطا ، ما لم يثبت ريسبونسيبليتي من طرف ثالث ، او الوقاءع التي تدل علي ان هذا هو الواقع "برعشيت يحدث" حاله مثل عدم انتظام في ظرف كولورادو الصخره من اسفل الجبل المتداول علي الطريق الذي دعا الجميع الي الاستجابه الطارءه والمفاجءه. واذا كان لا يجوز للطرف المتضرر ، كما المدعي ان يثبت ان الاخر هو المخطء ، ينجوريد من الحوادث يدفع بالمثل جميع المتورطين في الحادث ، لان الوقت ليس بغريب المتعدده الاطراف سواء في الخطا الحوادث التي تءدي الي شبه قضاءيه تضمن تناسب اصابات خطيره طرف من اطراف الحادث حتي الرءساء الاضرار الاضرار التي تتطلب مشاركه.

النتيجه النهاءيه لهذه القاعده الجديده يرجح عقد اكبر نصيب ساءق غافل المسءولين عن الاهمال ، رغم ان هذا النوع من الخطا يصعب اثباته.

الاضرار المصلحين مخطءون.

اصلاح الاضرار في الحركه التي تحرك الهدف هو الحد من الاضرار وتحديد المسءوليه عن الاضرار المصابين الناجحين في الدعاوي. وتموله مءسسات مثل الاعمال الكبيره التي غالبا ما ترفع عن الاضرار التي تسببها للغير ، وشركات التامين الذي يدفع ثمن هذه الاخطاء مباشره ، ودفاع من محامين لتمثيلهم. كثيرا ما نتحدث عن مجموع التعويضات التي يحكم بها والمستوطنات تدفع وتنفق الاموال المقاضاه الادعاءات بانها "ضريبه الضرر" ، ووصف جهودها محدوده المسءوليه اقتصادي فعال تخفيض الضراءب.

Steele School Sciencepalooza

As regular readers of this blog know, the Denver Public Schools are facing some very serious issues: Truancy, a high drop out rate, dismal academic performance on standardized tests, and budget pressures caused in part by having too much real estate and too few children. So, why do I send my children to this school system?

The answer is that, like every big city, the key to understanding Denver is its microenvironments. My children attend Steele Elementary School and they probably will until the 5th grade. This little piece of the Denver Public Schools, and it is certainly not alone in this distinction, is a good place for my children to grow up. Being "free" (sort of) and within walking distance doesn't hurt either.

A case in point is Steele's science program (Robert Steele himself, by the way, after whom the school was named, was a notable judge in Colorado's earlier years and part of a family of notable early Colorado personalities). It was on display last night at the school's "Sciencepalooza" event for parents and their children.

Center stage, in the auditorium, were all of the science fair projects the children in the school had done. Even kids too young to do them for themselves did class projects. Ever aware of their urban environment and interested in doing research of value to their parents, my daughter's classroom actually did some science research which I can actually use. They studied which brand of toothpaste is most effective at removing coffee stains. Interestingly enough, they learned that the expensive whitening toothpaste doesn't actually produce the desired results. Instead, the empirical evidence indicated that cheaper regular AIM or regular Crest Toothpaste is best for removing coffee stains on your teeth. (If I were inspired I'd figure out how to get the blogger interface to disclose that AIM and Crest are registered trademarks with the proper circle R notation, but I'm not.)

This was surrounded by a variety of programs on arthropods, reptiles, physics and astronomy, in some semblance of order. Creditably this was done in a format that both kids and parents could learn from. I'd certainly never petted a giant cockroach before in my life, hadn't known as much about the proper means of relocating a black widow, and was unaware that scorpians were arachnids. I was more familiar with reptiles but learned how to distinguish diurnal from nocturnal snakes. Physics was more familiar, but it is still fun to see that optical illusions work even when you know why they are deceiving you. And, whose childlike curiousity isn't awakened by being learning where precisely in the sky the center of our own Milky Way galaxy is located in the school's own planetarium.

Obviously, this was a special event. Professional outside scientists don't drop in for every class. But, Steele has a lot of special events. As I write this, my children are in Spanish Club, learning a skill vital for life in Colorado. My daughter enjoys art and poetry, and has had special opportunities to develop those interests. Other children spend much of the year getting ready for the school's contribution to the district's annual Shakespeare festival. One teacher has made an extra effort to develop a program to address "girl politics", the cruel but subtle backbiting and gossip that was a problem in her class. My children's classes have taken field trips to the opera, the art museum, the puppet theater, and the stock show. The orchestra has come to school.

The social side of the school is healthy as well. Parents float in and out of classrooms, helping out. There is far more hugging than fighting going on. Children greet each other with smiles. A buddy reading program has turned older students at the school into friend and mentors for the younger kids, instead of bullies. A fifth grader and one of my children (I have a first grader and a pre-schooler) were on a first name basis yesterday evening. Every here and there you see a kid wearing a costume for no particular reason, not surprising in and of itself, but I haven't once seen one of those children being teased. It is simply a fashion statement.

This doesn't mean that the basics are ignored. Lists of words to work on for the weekly spelling test come home to our house every week and over the course of the year there have been a great many of them. Math journals wizz by, page by page, as students advance at their own pace, for the most part. My children spend an important part of every day studying the basics.

The great diversity of the school, compared to your typical suburban school, is more apparent on nights like Sciencepalooza, when you see the parents, than it is when only the students are around. Some parents (in addition to occassional grandparents) are starting to sport considerable tufts of gray hair. My six year old has peers who have parents in their 50s. Others appear to be in their young twenties. Some parents are still working on learning to speak English. Others are senior professionals as well as Colorado natives. Some parents are affluent, many are not. But, the school does not have the pervasive poverty the dominates life at so many schools in Denver. Ethnically, it isn't monolithic, and my wife and I are certainly not the only parents who are a mixed race couple in the school. For some reason, Steele happens to have one of the largest percentage of Asian students in the district.

School grounds aren't everything, but an ongoing program, the "Greening of Steele" to improve the landscaping of the school (this summer's projects include major overhauls of the playgrounds), along with some recent major rennovations of the building's electrical system and windows, have definitely contributed to an optimistic feeling about the school's prospects.

Is life at Steele bliss? No, it isn't. The fund raising schemes are incessant, even though they are a necessary evil to keep the school healthy. There are a number of children at Steele who have "special needs" and troubles, and the school doesn't always do a perfect job of dealing with their needs. It isn't some utopian environment of "gifted kids", which is what many parents want, those who seek to choice into Bromwell, the district's glamorous symbol of success in Cherry Creek North, prominent among them. The principal is green, and definitely hasn't mastered the skill of dealing with parents (in a school where parents are quite actively involved), the community (I ended up crosswise with her over how poll workers were treated during an election held in the school cafeteria), or the budget process of the district (some last minute surprises this year were something of a fiasco). But, a school is not just its principal, especially where 80% of the teachers in the building have tenure.

Of course, ultimately, the proof is in the pudding. The best way to know the quality of your children's school for them is to see how they are managing. My children are happy, learning about hard truths like divorce from their peers without having their own innocence irrevocably shattered, mastering the basics, exploring their interests, and fitting in socially far better than my wife or I ever did as children. Other schools may be better for other kids, but we are happy, for now, with our neighborhood school, Steele Elementary, in the Denver Public School District.

Afghan War Planes: Retro Is In

Apparently, the ancient B-52 bomber and Vietnam era A-10 close air support attack fighter are the most popular warplanes in Afghanistan (yes, we are still fighting a low level war against the Taliban there, and by some reports not doing a terrific job of it either). The aging British Harrier jump jet follows, with the F-18 (why exactly we are using carrier based aircraft in one of the world's most landlocked countries confuses me) and AH-64 Apache helicopters round out the active fleet.

Wired Denver Government

Personal digital assistants have had a major impact on Denver. While the development has gone largely unhailed, every parking enforcement officer and fire marshall has one. City employees aren't the only ones. They are also ubiquitous among FedEx and UPS delivery guys. It will be interesting to see where the trend spreads.

For example, orginally, cell phones were sold as high priced toys for your luxury car. But, these days, you are as likely to see them in the hands of city bus riders or construction workers, who need them as they often aren't close to a phone and hard to reach, as you are to seem them in the hands of a traditional desk bound professional or executive, who spends most of his or her day within arms reach of a land line.

Important Milestone In Coffee Blogging

You can now get your Mile High Buzz in Spanish, Portugese, French or Italian. Hmmm . . . . I wonder how you say expresso in Klingon?

UPDATE: I really can spell the word coffee, most days anyway.

Shout Out To DU Law Students!

The legislative session is coming to an end, and so is the semester at the University of Denver Law School. Scooter Joe's is flooded with hard suffering law school exam crammers this afternoon. Up and coming Democratic party operative, political aid and third year law student Andrew Luxen (who works for Anne McGihon with whom I practice law) is starting to get study lines under his eyes. I suspect DU law student and Speaker of the State House Andrew Romanoff is taking the semester off to focus on passing laws. But, I'm sure that he is suffering sympathy anxiety.

For those of you who don't know, final exams in law school are a big deal. The traditional format of the law school class is the attend ungraded lectures, where the professor asks you unannounced questions instead of the other way around, all semester, leaving you little sense of your progress in the class (or what the law in that area is about), followed by a single sitting essay exam for several hours which is graded anonymously and is your sole grade for the course. This tends to encourage early semester slacking and last minute, intense cramming, often aided by commercial outlines that tell you everything that you didn't learn from your professor during the semester. It probably isn't the most pedagogically sound way to teach the subject and can begin a lifetime a bad work habits, but somehow, participants survive and go on to do their best to solve their clients problems (if they can manage to pass the quite similar bar exam, a matter that former state house minority leader Joe Stengle reminds us can happen to the best of us if you don't devote enough time to cramming). I don't know how much law school has changed, but judging from the frantic examination of federal jurisdiction textbooks I see going on around me, I suspect it hasn't changed that much.

So, here's to you guys! Have fun. And, enjoy tequilla shots afterwards. It does wonders.

Rustic Shelter

The City of Denver rebuilds a log gazebo in Cheeseman Park, and the Denver Post goes ga ga. I actually had an occassion, two weekends ago to enjoy this newest Denver Park's structure, but it isn't all that.

Prisons As Psych Wards

Mentally ill people convicted of felonies are rarely released on parole, and frequently reoffend. What they don't get very often is the mental health treatment that they need:

The National Alliance on Mental Illness estimates there are 300,000 people suffering from mental illness in state and federal prisons, compared with 70,000 in state psychiatric facilities. "Our jails and prisons are our largest mental-health facilities now," says U.S. Sen. Mike DeWine, a Republican from Ohio who has co-authored bills to create federal programs to improve services for mentally ill inmates.

Time and time again, my mantra is that we have a responsibility to prevent predictable disasters. Mentally ill felons who don't receive mental health treatment are predictable disasters. But, keeping them in prison for disproportionately long sentences is not the humane, reasonable, or cost effective response.

Circular 230 and Prospects For Reform

The New York State Bar Association, a professional organization of which I was a member for many years (I am still admitted to practice in New York, but no longer keep up the association membership), has a detailed letter to the IRS explaining Circular 230 (the IRS answer to litigator's Rule 11 which bans frivilous arguments), a description of how tax opinion specialists have responded to recent changes in these standards, and suggestions for reform. The letter notes that currently overbroad regulations have created a deceptive boilerplate disclaimer culture among professionals who give tax advice. Its predicate explanation of what the circular means is one of the best freely available ones that I have seen.

Basically, the reform recommendations call for narrowing the scope of tax advice subject to special rules designed to stop shoddy opinions designed to protect tax shelter users from penalties since they can argue that they are acting in good faith, while slightly toughening the standards that apply to other kinds of tax advice.

Hat Tip to the Tax Profs Blog.

The British Are Healthier

According to the Journal of the American Medical Society (JAMA) via the Denver Post the British are healthier than the Americans:

Americans had higher rates of diabetes, heart disease, strokes, lung disease and cancer . . . .

The United States spends about $5,200 per person on health care while England spends about half that in adjusted dollars. . . .

The researchers crunched numbers to create a hypothetical statistical world in which the English had American lifestyle risk factors, including being as fat as Americans. In that model, Americans were still sicker.

Smoking rates are about the same on both sides of the pond. The English have a higher rate of heavy drinking.

Only non-Latino whites were included in the study to eliminate the influence of racial disparities. The researchers looked only at people ages 55 through 64, and the average age of the samples was the same.

Americans reported twice the rate of diabetes compared with the English, 12.5 percent versus 6 percent. For high blood pressure, it was 42 percent for Americans versus 34 percent for the English; cancer showed up in 9.5 percent of Americans compared with 5.5 percent of the English.

The upper crust in both countries was healthier than middle- class and low-income people in the same country. But richer Americans' health status resembled the health of the low-income English.

Study authors note that a comparison of the English population as a whole, and the American population as a whole would have been even more unfavorable to the Americans, as Hispanics and non-whites in the U.S. fare more poorly on most health indicators than whites in the United States.

The newspaper article also fails to note the obvious difference between the U.S. and British healthcare systems, which is that the American system covers only 6/7th of the population, while the British system is universal. England also, even under more conservative governments, has generally been more liberal in its policies than most of the U.S., which could mean that differences in health and safety legislation between the two countries could be a factor.

You Can Save A Stroke Victim

Pay attention. This post could save someone's life.

If someone is having a stroke, it is urgent to get medical help quickly. There is a three hour window of opportunity to treat it. You can save a life if you know three simple questions that can allow you to determine that there is a high likelihood that someone is having a stroke.

[A] bystander can recognize a stroke by asking three simple questions:

1. Ask the individual to SMILE.

2. Ask him or her to RAISE BOTH ARMS.

3. Ask the person to SPEAK A SIMPLE SENTENCE coherently. (For example: It is sunny out today.)

If he or she has trouble with any of these tasks, call 9-1-1 immediately and describe the symptoms to the dispatcher.

The basic behind each of these tests is that usually a stroke affects mental control different sides of the body unequally. A stroke victim would likely have only a half smile, be unable to raise one arm, or have slurred speech because only half of the mouth is responding.

Another diagnostic list, which emphasizes that strokes involve a sudden change follows:

Learn to recognize a stroke and act quickly:

Sudden numbness or weakness of the face, arm or leg, especially on one side of the body
Sudden confusion, trouble speaking or understanding
Sudden trouble seeing in one or both eyes
Sudden trouble walking, dizziness, loss of balance or coordination
Sudden, severe headache with no known cause
Call 9-1-1 immediately if you experience symptoms!
Time lost is brain lost!

Sometimes simple tests like the ones above will be wrong. But, a great many reasonable false alarms are worth it, if they save one life, or dramatically improve one person's quality of life.

Strokes are caused by blocked blood vessels in or enroute to the brain, and a combination of clot busting drugs and surgical procedures aimed at clearing the blockage can often get blood flowing again before the brain cells die. Once the brain cells are dead, the can't regenerate, so time is of the essence.

DD(X) Cut Short?

Via Defense Tech:

A House subcommittee has passed legislation to limit the DD(X) destroyer program "to just two ships," . . . . The plan to halt the DD(X) buy at two would leave the Navy with a pair of ships that would serve mainly as demonstration models for a new generation of guided missile cruisers that would be built using the same hull.

Plan A was to build 30 for $1 billion each. Now costs have ballooned to as much as $4 billion a piece.

Meanwhile, the strategic justification for a next generation destroyer has deteriorated. The main things that distinguishs the DD(X) from existing Arleigh Burke class destroyers (which the U.S. is still building, despite the fact that we have the largest conventional surface Navy in the world), are the DD(X)'s proposed small crew, the DD(X)'s low radar signature hull, and its advanced gun system, a high rate of fire 6" naval gun, which is supposed to have more long distance accuracy than existing naval guns of that size. Cost has destroyed the virtues of two of those benefits, and the number of surface combatants that the Navy can afford to operate independently so that they can benefit from stealth is limited.

Th advanced gun system in particular was sold as a way of providing over the horizon fire support for Marines in amphibious invasions lost when battleships were retired, since a 6" gun still isn't very useful for ship to ship combat. Cruise missiles, submarines and aircraft have long ago superceded any kind of naval gun, even the advanced gun system, in dealing with opposing warships. The edge that artillery and naval guns have an edge over more sophisticated weapons is that the rounds that they use are cheap, allowing them to be used indiscriminately whenever they are needed. But, this cost advantage withers when you need a $4 billion ship to launch the rounds, and the rounds themselves, as they focus has turned to greater accuracy and the expensive guidance systems that go with them, have grown more and more expensive, to the point where the $40,000ish cost is firmly in the middle between an ordinary naval gun or artillery round or dumb bomb (a couple of thousand dollars each) to a cruise missle (three quarteers of a million dollars each). The $2 billion or so of additional purchase cost associated with a DD(X) v. an existing model destroyer, would buy about 2,600 cruise missiles, a number that, when multipled by the original planned buy of 30 ships, probably rivals the total number of naval gun rounds fired in anger since World War II.

Similarly, the immense cost overruns per ship on the DD(X) have also considerably dimmed the gleam of cost savings associated with its projected relatively small crew, despite the fact that these will be the largest surface combatants in the U.S. fleet. Reducing crew only matters if the reduced operating costs aren't outweighed by increased purchase costs, or if the ship is sunk by opposing forces and fewer people die. But, unlike the Littoral Combat Ship, the DD(X) is not built on the assumption that a certain percentage will probably be lost as an expendable cost in any major combat operation.

The relatively small radar signature of the DD(X) (the first of which will be the USS Zumwalt), of course, would still be useful. But, only when the DD(X) acts independently from conventional ships. The vast majority of U.S. destroyers and cruisers are used almost exclusively in an escort role, guarding U.S. aircraft carriers or amphibious assault ships (basically mini-aircraft carriers). In that role, stealth is considerably less useful. You can't surprise someone when you have a 98,000 ton aircraft carrier, a massive logistics ship, and half a dozen conventional destroyers, cruisers and/or frigates floating around, even if your particular ship is hard to spot.

Given the analysis above, I sincerely hope that Congress will have the guts to kill the DD(X) (either now, or after the elections with some new faces on board). Moving onto the CG(X) which has a very different and potentially more useful mission that would justify a high cost (it is the only part of the missile defense program with any real record of success in the early testing phase), makes a great deal of sense.

Flood Planning In Denver and New Orleans

Talk of rebuilding New Orleans over at the Unbossed blog has brought my thoughts back home to Denver.

Good urban planning uses strategic placement of green space and building design to limit flood related harm. Denver does both. Indeed, flood risk considerations, which were a great problem in Denver until the 1960s, have guided Denver's urban landscape to an extent that few people realize until they really sit down and consider the issue.

While Denver is relatively disaster free, as major cities go, flood is higher on the risk of likelihood than risks like hurricanes, earthquakes, avalanche, and widespread fire. Tornados and blizzards are probably the only more likely natural disaster to strike the city. Tornados typically have relatively isolated effects. Blizzards in Denver are generally short lived spring phenomena that can simply be waited out. But, floods, when they do happen, often produce widespread devistation. New Orleans was harmed far more by the flooding it suffered than by the hurricane winds themselves.

The areas most at risk of flooding in Denver have been purchased by the city (or in some cases retained by private interests) as green space. The first 15-20 vertical feet of flood plain around Cherry Creek is a bike path that can be periodically flooded. Downtown Denver is buffered from flooding by Commons Park and Confluence Park, and much of the Platte River Valley has also been reserved for bike paths. The Gulch that runs through West Denver is green space. Alamo Placita Park's formal gardens are also a drainage basin to divert Cherry Creek flood waters from the surrounding neighborhood, as is the Denver Country Club. Hungarian Freedom Park buffers much of the S. Speer neighborhood from flooding, while Sunken Gardens Park buffers West High School and the Baker neighborhood behind it from Cherry Creek. A sculpture garden buffers the Denver Performing Arts Center.

Many multi-family and commercial buildings in the Cherry Creek and Platte River basins in Denver are built with ground floor and basement level parking areas, while offices and residences are overwhelmingly on higher floors, a design the minimizes damage in the event of a flood and literally lifts the buildings out of the zone where expensive flood insurance is required. For example, the Parkway office/apartment/condo complex from 11th to 13th on Speer, the Anthem building at Broadway and Speer, and the medical offices to the South of Swedish Hospital near the Platte, are all built on concrete stilts with ground level parking. The REI headquarters had below ground level space, but it is also used for parking. The main structure in the Platte River Valley proper, Elitch Gardens, is not residential and could sustain a flood with only modest damage. Some of the planning is more subtle. Most of the area where Cherry Creek crosses Glendale is buffered with green space. Tamarac Square (about a mile or two East of I-25 on Hampden) is buffered from Cherry Creek by a big parking lot (and the neighboring medical offices limit their basement to parking), which, while not ideal, beats building occupied residences on the first floor right next to the Creek.

This isn't to say the Denver is flood proof. If the first lines of protection in the form of the Chatfield and Cherry Creek reservoirs fail, there will be damage. Most notably, Denver Health, the county's public hospital and a key facility in the event of a major disaster in Denver, has its emergency room doors well within the Cherry Creek flood plain and only limited protection from flooding, in the form of the drainage created by the Speer tunnel under Broadway and Sunken Gardens park. Should the dam on the Cherry Creek Reservoir crack, you can expect to see the Colorado National Guard franticly trying to sandbag along 8th Avenue and Speer to protect the facility. With some advanced planning, the City could build an attractive levy around the location and perhaps even establishing a backup ER entrance on high ground, when there isn't a disaster in progress, to address this risk. While we can afford to have a few houses and businesses flooded and out of commission for months in the unlikely event of a major Cherry Creek flood, a major hospital disabled by such a flood would be a tragedy, so planning for such an unlikely event makes sense.

Another quite vulnerable location is the 9 News building along Speer. TV channels 2 near the Tech Center, 4 on Lincoln Avenue near downtown, 7 near the flood plain but with a 1970s anti-protest design that limits the ground floor to a lobby, and Univision in Capital Hill have largely flood proof headquarters, while the Fox building at 6th and Lincoln and Speer, and public television building in the Golden Triangle are in between. The Cherry Creek mall is also right at the water's edge. Some of the new development in the Golden Triangle neighborhood, like the major new mixed use complex at about 8th and Bannock, also look vulnerable.

In New Orleans, where the majority of the city is in a flood plain, if the first line of defense in the form of the levies fails, rebuilding should take place with a similar attitude. You can build in a flood plain or below sea level area if you are sensible about it. But, a flood plain is a very bad place for ranch style houses, garden level apartments, or any first floor residential or commercial use. New Orleans needs to usher in a new architectural style sensitive to its precarious position in the 21st century, with hat tips to tradition in places like roof lines (perhaps modified to add exit hatches from attics), rather than trying to cling to more pure versions of distinctive French Quarter designs with street level shops and apartments that pose a far higher risk in lower lying areas. Stilts and ground level parking need to be "in" for a very long time in most of New Orleans.

New Orleans also needs to dedictate its most polluted and low lying areas to some form of open space or low human traffic use. It is OK to put a park or ball field or golf course or polo club in a place that has a substantial risk of flooding every thirty years. It isn't wise to put a permanent building that the owner can't tolerate losing there. It is OK to put a scrap yard, or an impound lot on top of an area staturated in toxic chemicals. It isn't OK to put a new elementary school or apartment complex there.

Ironically, golf courses and nature preserves are also actually quite a good brownfields uses (i.e. redevelopment of formerly toxic locations that have been cleaned up to standard of less than perfection). While they get human traffic, the people who use it range over the entire area, limiting exposure to any hot spots that may remain undetected after a clean up, and the people who use it are adults who are unlikely to get their hands and mouths full of potentially toxic dirt, and who are also less vulnerable to pollutants because they not longer in a rapid growth phase. Also, since nature perserves and golf courses are rarely used for hunting, the fauna there are unlikely to end up in the human food chain. Examples of this kind of planning in Colorado are found in the golf courses at Overland Park in metropolitan Denver (once a nationally significant toxic waste site until a EPA brokered plan was reached), the Rocky Mountain Arsenal now becoming a nature preserve, Rocky Flats which is slated to become a nature preserve, and some of the former nuclear waste sites around Nucla, Colorado which are being converted into a golf course (a situation I was involved in tangential litigation over). Similar uses make sense for locations that have been made toxic by spills from the Katrina disaster in New Orleans as well.

While not strictly an issue of city planning, there was also a profound problem with flood insurance underwriting in New Orleans. New Orleans areas protected by Corps of Engineers levies were inappropriately rated as outside the 500 year flood plain where no flood insurance is required. But, levies or not, there is probably no place in all of NOLA that should be free of the requirement of flood insurance in connection with any new mortgage, and flood insurance should be very strongly encouraged among those who don't have it. Indeed, New Orleans would be an appropriate place for the entire community as a whole to purchase flood insurance for the entire city and pay for it through property taxes, freeing the city of the problems of disaster relief funding and of individual property owners who imprudently failed to insure themselves imposing a burden on the process of rebuilding if disaster strikes. This would also allow the City to reduce flood insurance rates with collective solutions to the risk that no one individual would have the power to implement.

I fully confess to not addressing the dicey issues of race and poverty that must be addressed as part of the process of rebuilding New Orleans in the post above. The suggestions I've drawn from the examples above inherently leave less land area for residential use, since essentially I am saying that there are low lying or toxicly polluted areas of New Orleans which should not be rebuilt at all in any residential or commercial way. The building suggestions I've proposed for more salvageable areas likewise would drive up the cost of rebuilding the city thereby reducing its stock of the most affordable housing. Universal flood insurance requirements also drive up the cost of living in the city, making affordable living more difficult.

New Orleans clearly needs to provide a map of a rebuilding plan which produces substantial quantities of housing for people with modest incomes and with the recognition that like any other major city, it needs to be able to sustain some people who are living in poverty. I believe that this can be done, although, of course, New Orleans will never be the same. But, that will have to be the subject of another post.

1400 Posts

Today is the ten month anniversary of this blog as well.

I've abandoned consideration of splitting this blog into multiple parts, and instead will do more index posts (and put them in the sidebar) when I get around to it. But, balancing content among the various subject I cover is always a struggle. If your looking for something particular, consider using the search this blog function in the header.

Greetings to the international readers who make up about 10% of the visitors to this site. Come visit Denver!

Comments are always welcome.

Defending The Guilty (And The Innocent)

Lenny Frieling's article "Why Do We Defend Guilty People?" in the The Docket, which is the Denver Bar Association newsletter, deserves a wider audience.

He begins with the premise that "Most of my clients are guilty. If they are not guilty of precisely what they are charged, they are guilty of something similar." He explains that this is not inconsistent with the misunderstood job of a criminal defense attorney, which he explains is not primarily to "get our clients off."

What criminal defense attorneys really do, he explains, "is to reach a fair result for my client," subject to the general premise of our system that the "defendant must be included in all significant case decisions." Largely, this involves finding a punishment appropriate to the particular facts and circumstances of the defendant's case, which often means something less than a maximum sentence, and controlling exaggerated charges arising out of less serious criminal conduct. Often this is possible. He notes: "Our system is generally pretty fair to the guilty defendant."

Frieling's brief comment on the less than ten percent of people charged with crimes who are not at least partially guilty is precious:

Save me from innocent clients. I've had more than my share of the years. They are terrifying. The range of acceptable results (fair results) for the truly innocent client is very narrow. The range of acceptable compromise is almost non-existent. These clients are certainly part of the group of clients whom we musts "get off." To make matters worse, the client/defendant believes that (1) they should not have been charged, (2) the system will protect them because they are in fact innocent, and (3) they should certainly not have to pay a defense attorney to defend them, because that is a privilege reserved for the guilty.

It doesn't help that even if you are found not guilty on all counts after a trial, that you are still out the often substantial funds you had to pay a criminal defense attorney to get you that far. You have no right to seek compensation from the government for what they put you through when you are acquitted, unless (1) they lacked probable cause to charge you in the first place (a low standard), (2) had some sort of malice instead, and (3) you can prove it.

The only way to get a truly fair result for an innocent client is to get the case dismissed shortly after the client is charged. This result depends upon the mercy of the prosecuting attorney. It is rarely possible.

Frieling doesn't say it outright. But, the clear implication, for he follows the extended quote on the innocent above with his statement about the system being pretty fair to the guilty, is that our system is not generally pretty fair to the innocent. This observation is a haunting one.

CSAP Gap Starts Early

Statewide and Denver CSAP results for third graders are in:

Eighty percent of the 33,998 white third-graders tested were reading at or above grade level. But among the 14,721 Latino third-graders tested in reading, just 51 percent were proficient or advanced readers, and among the 3,212 black students, just 54 percent were reading at grade level.

The overall rate was 70%. In Denver Public Schools, the rate is 51%.

It isn't any secret that there is an ethnicity linked gap in reading proficiency as measured by the CSAPs. While many people have doubts about the reliability of the CSAP, it is fair to say that there is a significant real gap in 3rd grade English reading proficiency as well.

These gaps don't disappear for older students. In fact, in reading tests, it gets somewhat worse for middle school children, and the gap is about the same for high school aged students as it is for middle school children. But, about 90% of the gap, measured in percentage points, is already there by 3rd grade.

The only reasonable assumption is that the vast majority of this gap predates involvement with the public school system all together. Even those who believe that the school system is permeated with unconscious institutionalized racism, almost never believe the teachers from kindergarten to 3rd grade are materially more culpable in this regard than teachers from the 4th grade through high school. But, if the CSAP data is even remotely accurate and institutionalized racism is the primary cause, this must be true in spades.

This doesn't imply that the majority of Denver public school system parents are bad parents. But, it does suggest that white students, who are far more likely to grow up speaking standard written English as their native language and live in middle class households enter the system with advantages that flow from their socio-economic status, absorbed by osmosis very early on.

Greenpeace Co-Founder Supports Nuclear Power

Mr. Moore, co-founder of Greenpeace, explains why he thinks that environmentalists should support nuclear power:

His argument has two basic prongs. First, the main alternative, coal is really a problem.

More than 600 coal-fired electric plants in the United States produce 36 percent of U.S. emissions — or nearly 10 percent of global emissions — of CO2, the primary greenhouse gas responsible for climate change. Nuclear energy is the only large-scale, cost-effective energy source that can reduce these emissions while continuing to satisfy a growing demand for power. And these days it can do so safely. . . . [M]ore than 5,000 coal-mining deaths that occur worldwide every year. . . .The 600-plus coal-fired plants emit nearly 2 billion tons of CO2 annually — the equivalent of the exhaust from about 300 million automobiles. In addition, the Clean Air Council reports that coal plants are responsible for 64 percent of sulfur dioxide emissions, 26 percent of nitrous oxides and 33 percent of mercury emissions. These pollutants are eroding the health of our environment, producing acid rain, smog, respiratory illness and mercury contamination.

Next, many of the concerns connected with nuclear power are exaggerated:

Three Mile Island was in fact a success story: The concrete containment structure did just what it was designed to do — prevent radiation from escaping into the environment. And although the reactor itself was crippled, there was no injury or death among nuclear workers or nearby residents. Three Mile Island was the only serious accident in the history of nuclear energy generation in the United States, but it was enough to scare us away from further developing the technology: There hasn’t been a nuclear plant ordered up since then.

Today, there are 103 nuclear reactors quietly delivering just 20 percent of America’s electricity. Eighty percent of the people living within 10 miles of these plants approve of them (that’s not including the nuclear workers). . . .

It is in fact one of the least expensive energy sources. In 2004, the average cost of producing nuclear energy in the United States was less than two cents per kilowatt-hour, comparable with coal and hydroelectric. . . .

Although Three Mile Island was a success story, the accident at Chernobyl, 20 years ago this month, was not. But Chernobyl was an accident waiting to happen. This early model of Soviet reactor had no containment vessel, was an inherently bad design, and its operators literally blew it up. The multi-agency U.N. Chernobyl Forum reported last year that 56 deaths could be directly attributed to the accident, most of those from radiation or burns suffered while fighting the fire. . . No one has died of a radiation-related accident in the history of the U.S. civilian nuclear reactor program. (And although hundreds of uranium mine workers did die from radiation exposure underground in the early years of that industry, that problem was long ago corrected.) . . . .

Within 40 years, used fuel has less than one-thousandth of the radioactivity it had when it was removed from the reactor. And it is incorrect to call it waste, because 95 percent of the potential energy is still contained in the used fuel after the first cycle. Now that the United States has removed the ban on recycling used fuel, it will be possible to use that energy and to greatly reduce the amount of waste that needs treatment and disposal.

The bottom line is that coal pollutes far more than nuclear power and is far more dangerous to those involved in its production. Yes, we need to have good places to dispose of high level nuclear waste, and we don't right now. But, from this perspective it seems that opposition to Yucca Mountain has more to do with NIMBY politics than good science. While, the safety and health problems associated with coal are immense, expensive to address, and impossible to completely solve.

Decriminalization Trend Continues In Mexico

Canada recently decriminalized possession of small amounts of marijuana. Now Mexico is going even further:

Mexico's president will approve a law that decriminalizes possession of small amounts of marijuana, cocaine and other drugs to concentrate on fighting violent narco gangs, the government said on Tuesday. . . . Under the law, police will not penalize people for possessing up to 5 grams of marijuana, 5 grams of opium, 25 milligrams of heroin. Nor does the law penalize possession of 500 milligrams of cocaine -- enough for a few lines.

The legal changes will also decriminalize the possession of limited quantities of LSD, hallucinogenic mushrooms, amphetamines, ecstasy and peyote -- a psychotropic cactus found in Mexico's northern deserts.

Meanwhile, the U.S. drug czar was in Colorado yesterday to urge us here not to follow in the footsteps of our Canadian and Mexican neighbors. Denver recently passed a law ending the criminal status of possession of small amounts of marijuana under city ordinances, and an issue to do the same for state criminal statutes may face voters in the fall. Yet, the Bush Administration thinks that the alleged marijuana epidemic is one of our nation's the most pressing concerns.

Colorado High More Than Altitude

Aspen and Crested Butte are among highest elevation population centers in the United States. They also have another distinction. Lots of employee marijuana use. "The area including Aspen and Crested Butte had the highest positive test rate [for marijuana use in the state], 3.92 percent."

F-35 Budget Spins Out Of Control

The F-35 aka the Joint Strike Fighter, is the planned next (and quite possibly the last) manned fighter jet in U.S. military service, and is scheduled to have its first full fledged flight tests in the fall of 2006. While the Air Force's F-22 which will complete production in 2008 at about 180 planes (the original plan had been to buy 750) was designed primarily to replace the F-15 air superiority fighter and the F-117 stealth fighter, and F-35 is designed to replace the Air Force's main stay F-16 fighter, the Marine's AV-8B Harrier jump jet, and the Navy's F-18 carrier based fighter. It was supposed to be a low cost fighter.

The original plan had the F-35 costing from the high $20 millions, to about $40 million, depending on the model (The basic F-35A replaced the F-16, the F-35B replaced the Harrier, and the F-35C replaced the F-18, with the B and C versions more expensive than the A). A few months ago, the most expensive model's projected cost had grown to $60 million a piece. Now, the projected average cost of an F-35 has reached $82 million, each. Considering that current plans call for buying about 2,400 F-35s (original plans had called for buying 3,000), this is not chump change. Using the $40 million figure as a baseline, this is a cost overrun of $101 billion. The project is also 93 months behind schedule.

The Navy's C version was already slated to be the last put into service, their current aircraft are relatively new, and they have never been terribly enthusiastic about the F-35C, so if the program were to be cut, this version would be one place to do so. The F-35C was already the most expensive of the variants, despite the fact that the F-35B is more technologically complex. The price hike makes further upgrades of the current F-18 design more attractive.

The B version is harder to cut, as our allies, who are sharing in the cost of developing the F-35, want this version for their aircraft carriers.

We may also see the Air Force cut the size of its projected purchase of the A version. Its original planned buy included enough planes to replace every F-16 in the active duty Air Force, the Air Force Reserves, and the Air National Guard. Faced with cost overruns, the Reserve and National Guard part of the aircraft buys may have to be abandoned.

Of course, Congress could simply fund the entire current plan and pay another $101 billion, but it is hard to see Congress swallowing that much of a cost overrun. Increased budget projections for the F-22 and DD(X) were followed by reductions in the number of units ordered, and it is likely that the F-35 buy will follow a similar pattern (one which has already resulted in the planned purchase of 600 fewer aircraft for this very program). At the new price, for the existing budget, Congress could afford to purchase about 1,170 F-35s, instead of the planned 2,400, and I suspect that the ultimate decision made will be along those lines. This would still be enough to replace all of the F-16s in the active duty Air Force, and make the full currently planned buy of F-35Bs for the Marines, while making the other cuts outlined above.

Rethinking Attack Helicopters

Because battlefield experience in Iraq has shown the AH-64 Apache is highly vulnerable to small-arms fire, it no longer will play a prominent role in the service’s deep-attack mission, said the Army’s head of doctrine.

Gen. William Wallace, who commanded ground forces in the U.S.-led invasion of Iraq in 2003 and now heads the Army’s Training and Doctrine Command, said he would shake up the way the Army conducts deep-attack operations.

“Less integration of Apache helicopters,” more Air Force ground-attack aircraft and “more use of Multiple Launch Rocket Systems, perhaps even with unitary rounds that are long-range precision,” Wallace told reporters at the Association of the United States Army’s winter symposium in Fort Lauderdale, Fla., in February. . . .

Army attack aviation was better suited to providing close-air support to friendly ground forces than in the deep-attack role.

The same report said the Army’s OH-58 Kiowas performed better than the Apaches in urban areas because their pilots were trained to fly close to the ground at high speed and use buildings and trees as cover.

From the April 17, Army Times via Murdoc Online.

The Kiowa comparison must hurt. The 1961 vintage Kiowa is one of the smallest and least well armed helicopters in the military which is not intended solely for transport roles (well, except for a handful of special operations helicopters). The 1986 vintage Apache in contrast, is the newest and most heavily armed helicopter in the military. The Kiowa had been scheduled to be replaced by the Comanche, a helicopter, a sort of Apache lite, before Rumsfield cancelled the project early in Bush's first term.

The Marines haven't been thrilled with the prospects of their attack helicopters either:

No U.S. Marine Corps attack helicopters was shot down during Operation Iraqi Freedom (OIF), but the fleet was so heavily damaged in combat that service officials are expressing doubt about two fundamental wartime roles for rotor-wing aircraft, a senior commander said July 29.

Echoing recent concerns by some U.S. Army officials, Maj. Gen. James F. Amos, commander of the 3rd Marine Aircraft Wing, said current tactics that allow attack helicopter crews to penetrate deep behind enemy lines on long-range strike missions and hover above cities to provide close air support are ill-advised.

Personally, I'm inclined to think that the best place for attack helicopters like the Apache is the one place that we don't have anything like it, the Navy. An attack helicopter like the Apache would be perfect for turning a small littoral combat ship or frigate into a high powered anti-piracy and anti-small craft platform, or as a way of defeating landing craft when defending against an amphibious invasion in a place like Taiwan.

The Army has already been training pilots and outfitting the helicopters for coastal missions, there isn't a lot of unexpected small arms fire on open water, and they provide the speed that is the achilles heel of every ship. Standard issue surface combatants in the U.S. Navy are hard pressed to top 40 mph, and while you could use a cruise missle, it doesn't make sense to spend hundreds of thousands of dollars on a missile to defeat at $30,000 speedboat, or a land based artillery position or tank directed at targets in coastal waters.

UPDATE: In their defense, Apache Helicopters have proven very well suited to escorting convoys in Iraq. Their altitude and speed allows them to see ambushes coming and they have the firepower to deal with them. Ground based patrols, in contrast, can confirm that areas along the convey route a secure much more slowly and are more subject to ambushes and IEDs themselves.

Gift and Estate Taxes In 2006

My main day job activity is estate planning. If you are not someone for whom the gift and estate tax is relevant, you don't have to read this post. But, as a public service, here are some basic headlines for 2006, for those who missed them at the beginning of the year from the usual tax information services, straight the IRS. Most interestingly, there is actually a tax form that the IRS now insists that we not file early. This hasn't been much of a problem with Form 1040, but gift tax return filers are ruthlessly efficient.

The annual exclusion for gifts is raised to $12,000 beginning in 2006

The applicable exclusion amount is increased to $2,000,000 for estates and remains at $1,000,000 for gifts . . . .

Page 4 of the instructions for Form 709 states (Under When to File) that "...you must file the 2003 Form 709 on or after January 1...). It may not be clear, but this means that returns should not be filed until January 1 through the due date of the year following the year in which the gift is made. In other words, any gifts made in 2004 will not be due (and cannot be processed) until after December 31, 2004. . . .

Form 709-A, United States Short Form Gift Tax Return, is now obsolete and should not be filed. All gift tax returns must now be filed using Form 709, United States Gift (and Generation-Skipping Transfer) Tax Return.

Feel free to send your tax free gift of $12,000 my way any time.

Christian Conservatives Are Evil.

There are times when I want to be ecumenical and look for some sliver of good and honor from the conservative Christianity in this country. Then, I remember that they want my daughter, and 5,000 other people a year, to die of cervical cancer.

Well, at any rate, they want the same thing. They want to block a 100% effective vaccine against the main cause of cervical cancer, HPV, because they think it will discourage their abstinence only campaign. HPV, which causes most cervical cancer, is one of the only sexually transmitted infectious agents not stopped by condoms. Thus, the HPV threat has been the rallying cry of abstinence only advocates for years. A vaccine eliminates that boogeyman. And, they think that having an argument to prevent girls from having sex is more important the stopping them from dying. If conservative Christians are right that there is a God, and that there is a Hell, they deserve to spend eternity in that Hell for the evil they do.

Capital Punishment Statistics

U.S. News and World Report, commenting on the declining trend in the number of death penalties carried out in the U.S. notes a few thinks worth pondering. First the big picture:

Ninety-four percent of the 2,148 executions carried out last year in 22 countries were staged in just four nations: China, Iran, Saudi Arabia, and the United States . . . the vast majority in China.

Next the national picture:

82 percent of executions in the past 25 years occurred in just 10 states--with Texas and Virginia accounting for half.

Concerns about racial bias in death penalty sentencing (I looked at the statistics from Georgia myself in college statistics, and it was clear that the race of the perpetrator and victim was a major factor in sentences, with blacks killing whites most likely to receive the death penalty), concerns about wrongful convictions and bad lawyering for death penalty defendants (highlighted by DNA evidence based exonerations and cases of gross defense attorney malpractice), and concerns about the cost of maintaining the legal apparatus of the death penalty, conspire to give much of the nation pause when considering whether to continue to use the death penalty.

I don't agree that the death penalty is absolutely morally wrong. It can be justified. But, it seems equally clear that the criminal justice systems that produce the vast majority of death penalty sentences are deeply flawed, and the reforms necessary to create a functional system in those places may not be worth the trouble.

Alito's First Opinion

Justice Alito hasn't been on the U.S. Supreme Court very long. His decision today in the case of Holmes v. South Carolina is his first decision, and he writes for a unanimous court.

In substance, the Supreme Court invalidates a South Carolina rule that prevented criminal defendants, in this case an individual sentenced to death for murder, from introducing evidence that someone else committed the crime and confessed to it, if the judge thinks that the prosecution has a solid case based on physical evidence. The defendant was arguing that this forensic evidence had been the subject of tampering. The flaw in this rule, the high court notes, is that the judge isn't meaningfully examining the defendant's argument that the prosecution physical evidence is flawed.

Perhaps the most notable element of the decision is that it is long on logic and thin on authority. It isn't hard to conclude that the ultimate decision is the correct one. Evidence that someone else committed the crime is almost always logically relevant, and thus constitutionally mandating its admission seems essential to a fair trial in a wide variety of criminal cases. Justice Alito himself seems a bit fuzzy on which particular part of the Constitution mandates that this evidence must be available to a criminal defendant, pointing to the 14th Amendment Due Process clause and two different parts of the 6th Amendment, although not the trial by jury right, which could also be a logical basis for the ruling.

Indeed, one gets the sense, in the recitation of facts, which described a palm print on the scene where the defendant had no reason to be, tiny fibers left at the scene, and confirming DNA evidence from both blood and semen, in addition to a witness who placed the Defendant at the scene, that one reason that the Supreme Court is so comfortable setting aside this death warrant in this case is that the Court is confident that on retrial, confronted with the defendant's full defense, that a jury is almost certain to come out the same way, or that in far less likely alternative, the prosecution really does have something to be afraid of, because it really did frame the defendant.

Marshall v. Marshall

May Day, today, is historically a celebration of the fertility of spring. Perhaps it is fitting then, that today, as predicted after oral arguments, the U.S. Supreme Court has given porn star and trophy widow Anna Nicole Smith a big sloppy kiss, restoring to her a shot at the $44 million judgment awarded to her by a bankruptcy court in connection with the death of her late (and much older) husband.

The Texas Probate Court had shut her out of any relief in connection with the death of her late husband, as his will was held valid and left her nothing (she did get some hefty gifts, prior to his death, but they were chicken feed compared to what she sought). Proceedings then shifted to the fedeal bankrupcy courts. The bankruptcy court had found that her stepson had improperly interferred with her late husband's efforts to make substantial gifts to her, but when the case reached the 9th Circuit Court of Appeal, her award was vacated on the ground that it concerned a probate matter, from which the federal courts have historically abstained. The U.S. Supreme Court, in overruling the 9th Circuit, held today that both the probate exception to federal court jurisdiction and the domestic relations exception, both of which were created by judicial decision, should be narrowly construed. (In line with another recent decision of the U.S. Supreme Court in a Colorado redistricting case, narrowly construing the judicially created Rooker-Feldman doctrine limitation on federal court jurisdiction).

Anna Nicole Smith's case is not entirely over, however. Two issues remain outstanding on remand to the 9th Circuit. First, the 9th Circuit must determine if this was a "core" proceeding, in which case and even more generous bankruptcy court ruling prevails, rather than a slightly more restrained District Court ruling. Second, the 9th Circuit must decide on remand whether the trial court improperly ignored findings on particuluar issues made in the Texas probate court which should bind the parties in the bankruptcy court. This has the potential to wipe out the award entirely.

So, we haven't yet heard to last episode of the tale of Anna and the Courts.