Somebody Needs More Firm Meetings

My law partner and I talk, a lot, about firm business and firm clients. We do so almost every day, and often on weekends. The law firm Zakhem Atherton, whose most prominent partner is Colorado Republican scion John Zakhem, who is about the same age as I am and has a similar practice in a small to medium sized law firm (and in person, mostly a nice guy), apparently doesn't.

The Colorado Supreme Court has launched an ethics investigation into a prominent tax attorney whose firm represents the Colorado Republican Party. The inquiry was initiated after the high court received a complaint filed by the Colorado Division of Real Estate against Rodney Atherton for his involvement in a controversial state conservation tax credit program. Erin Toll, an attorney director of the real estate division, said she and her staff felt compelled to file the complaint because, by law, attorneys are required to report potential ethical violations or face penalties themselves. Atherton, a partner in the law firm Zakhem Atherton, said in an e-mail to the Rocky Mountain News that Toll was misinformed "and in error with her unfortunate allegations." The court responded to Toll on June 13, saying it had assigned the investigation to attorney Nancy Cohen, and had given Atherton 20 days to respond. In her letter to the Supreme Court, Toll wrote, "The division is not directly investigating Mr. Atherton. However, during the Division's investigation of appraisers, who performed appraisals for state conservation easement tax credits, information about Mr. Atherton was learned that, if true, could mean Mr. Atherton violated several Rules of professional conduct raising a substantial question as to Mr. Atherton's honesty, trustworthiness and fitness as a lawyer." John Zakhem, Atherton's partner, declined to comment on the complaint, saying that he was unaware one had been filed. He also said that he was not aware that any investigation by the division of real estate involved work by Atherton after Atherton joined his firm.

I express no opinion on the merits of the ethics complaint lodged against Rodney Atherton. Conservation easement tax credit rules are arcane, and without knowing the details it is hard to know if this is a case of a legitimate disagreement or an actual ethical breach. Most legal ethics rules are geared towards litigation and negotation, not transactional practice, and federal ethical rules for tax practice (Circular 230) do not directly apply to Colorado tax practice. But I can state definitively that I would know if any lawyer in my firm was being investigated by the Colorado Supreme Court for an alleged ethical violation within minutes of the time that the lawyer in question learned of the charges.

Latrines Could Save Lives

Sometimes, low tech is best.

Did The Republicans Screw Up Nominations?

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

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

The question now is whether those nominations were valid.

Getting on the Ballot in Colorado

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

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

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

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

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

The Facts

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

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

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

Congratulations California Couples!

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

Informal Understandings

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

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

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

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

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

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

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

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

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

New Inmate Headed For Colorado's Death Row

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

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

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

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

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

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

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

Other Persons Involved In The Crimes

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

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

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

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

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

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

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

Political Context

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

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

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

Colorado's Death Row

The Rocky Mountain News states that:

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

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

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

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

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

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

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

Is It Worth It?

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

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

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

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

Coffee Shop Economics

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

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

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

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

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

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

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

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

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

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

We Have Met The Enemy And He Is Us.

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

Change cannot come soon enough.

Father's Day 2008

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

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

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

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

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

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

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

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

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

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

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

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

Social Promotion At DPS

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

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

From here.

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

Guantanamo Bay Detainees Have Habeas Rights

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

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

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

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

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

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

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

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

Reactor Tornado Proof

A nuclear reactor survived a hit by yesterday's deadly tornados unharmed, despite serious damage to an associated buidling.

Anti-Union Proposal Opposed By Denver Chamber

The basic argument for supports of Amendment 47, a "right to work" provision which would bar employers from having a closed shop in which all employees must be union members is that it is pro-business. But that case just got weaker when the Denver Metro Chamber of Commerce decided to oppose the proposal.

In recognition of the Denver Metro Chamber's support, unions dropped two ballot measures that the Denver Metro Chamber opposed.

The UFCW is pulling an initiative that would have increased commercial property taxes by tweaking the Gallagher Amendment, the measure that keeps homeowners’ property taxes low. The union also is yanking an initiative that called for an annual cost-of-living increase for employees of companies with more than 10 employees.

But the union is continuing with two health-related ballot proposals, including one that would require employers with more than 20 workers to provide a plan for major medical coverage.

Solar Assisted Power Generation

Most of the focus in renewable energy research is on pure renewable energy technologies, like photovoltaics, solar thermal power plants, windmills and tidal power. But there is one approach that I haven't seen discussed that seems to make sense, hybrid solar-conventional power generation.

Fossil fuel and nuclear power plants are glorified tea pots. They boil water to create steam to turn turbines to generate electricity.

The energy involved in bringing liquid water to the 100 degrees Celsius at which is turns to steam is well defined. The amount of heat required is equal to the number of degrees of temperature increase required times the volume of water to be heated.

The hotter the water you start with is, the less energy it takes to turn water to steam, and hence, to generate power. It takes half the amount of energy required to heat water from a typical tap/river/lake water temperature of 20 degrees Celsius (68 degrees Fahrenheit) to 100 degrees, to do so when you start with water at 60 degree Celsius (140 degrees Fahrenheit).

Solar energy is relatively "low quality". What makes a solar thermal power plant hard to build is that you must concentrate diffuse sunlight into a single place to generate temperatures high enough to generate electricity. The lower the temperature you need, the easier it is to use solar power to achieve that temperature. Even a simple greenhouse made from plastic wrap, or a water bottle painted with black paint, can produce significant temperature gains, even though neither would ever boil more than trace amounts of water.

As a result, the main commercial use of solar power now is heating water to sub-boiling temperature, either providing a boost to a back up conventional water heater (see also here) in a building by pre-heating the water, or heating swimming pools.

But if you don't insist upon a pure solar system, the need to concentrate solar power is less great. By pre-heating water going into a conventional natural gas, coal or nuclear fueled power plant to 140 degrees Fahrenheit, using a far simpler than usual for electricity generating solar power system, you can effectively make your system 50% solar. Even pre-heating water to a mere 104 degrees Fahrenheit from room temperature should produce a 25% fuel savings.

Some conventional power plants use the conceptually similar idea of using waste heat from boilers (also here) to pre-heat water going into the boilers (or for other co-generation ends). But this approach is inherently limited by the fact that no new energy comes into the system from any source other than the boiler, combined with the fact all thermal systems are less than 100% efficient (this is the second law of thermodynamics). While reusing waste heat is also a good idea (and would use many similar technologies to the ones that I discuss here), it is essentially a way to make the plant more efficient, rather than providing an actually increase in the amount of available energy to drive the plant.

A hybrid solar-conventional power plant has other virtues as well.

As I've noted before, the beauty of solar power for electricity generation is that demand for air conditioning is closely tied to available solar power generating capacity. Hot days tend to be sunny ones with intense sunlight for reasons that are not coincidental. And, peak annual electricity demand is largely a product of air conditioning demand.

Thus, a hybrid solar-convention power plant is most efficient (and hence provides power at the lowest cost per kilowatt hour) when demand is greatest. In contrast, many electrical utilities now use natural gas, the most expensive commonly used fuel to generate electricity, to respond to peak summer demand.

But unlike a pure solar power plant, a hybrid plant doesn't have to devise infrastructure intensive ways to store peak solar power for nights and cloudy days, or have a back up power plant. At these lower demand time periods, baseline power is naturally provided by conventional fuels.

The environmental benefits of a grid powered by hybrid power plants that use 20% less fuel because of solar pre-heating of water heated in the plant are the same as the environmental benefits of having a grid in which 20% of the power plants are exclusively solar, and 80% are exclusively conventional. But hybrid power plants use 20% less conventional fuels than fully conventional power plants, with the savings concentrated on hot sunny days where there are savings of 50% or more from solar assistance, should be far less technologically challenging and somewhat less expensive to build than building enough exclusively solar power plants to serve 20% of the power grid. Indeed, since existing power plants could probably be upgraded to have solar assisted pre-heating of water boiled at the plant, it would probably be possible to avoid even the cost of building entire new power plants from scratch.

Less fuel also means fewer air pollution emissions. Burning 20% less fuel is a much easier way to reduce emissions by 20% than scrubbers and the like. And, unlike traditional air pollution control measures, that do essentially nothing to reduce global warming inducing CO2 emissions, burning less fuel does reduce the CO2 based carbon footprint of a conventional power plant.

Even a modest 10% fuel savings from solar assists, which would require pre-heating to a mere 104 degrees Fahrenheit for 50% of overall power generation, with a less than perfectly efficient system, would make solar power a larger share of the overall electrical power supply than any state in the United States receives from non-hydropower renewables today.

I'm not an engineer. I don't even play one on TV. This is just a back of napkin idea from an educated layman. But the concept of solar assisted power generation does seem to me to be an underdeveloped concept.

Federal Venue

Some venue questions in federal civil litigation has amusing solutions.

Another Harsh Sentence For A Neonatal Death

A Lakewood, Colorado mother who gave birth in a toilet, alone, then failed to rescue the baby before the baby died, will plead guilty to a crime carrying a ten to twenty-five year prison term plus a five year parole term, after a hung jury left her facing another trial. If the jury had convicted her, she could have faced decades more in prison.

I've said it before, and I'll say it again. The punishment does not fit the crime in these cases. This woman clearly has problems. She has also pleaded guilty to a unlawful use of methamphetamines. But it makes no sense for the people of Colorado to spend something on the order of $350,000-$800,000 to keep her behind bars for ten to twenty-five years. Long prison terms, which are also very expensive to the public, should be for those who pose a threat to the public if they are at large, not women who freak out in the immediate aftermath of a birth in a way that causes death.

It is one thing when someone who has not just been through labor affirmatively acts to cause a child's death. The harsh punishments under Colorado law for child abuse causing death or serious injury were designed to target parents in an ordinary state of mind who maliciously abuse their children, not the post-partem women who have faced the harshest consequences of this law.

Leniency to mothers in these situations is in order. Conviction for some crime and some punishment is appropriate. The crime of neglect of a newborn by a post-partem mother causing death ought to be comparable in criminal seriousness to careless driving causing death (the least culpable criminal homicide offense in Colorado). But the crime these women commit is not at the same level of culpability as violent crimes with similarly harsh sentences like aggravated murder and kidnapping.

Plutoids Defined

We all have new astronomy terminology to learn:

The International Astronomical Union announced June 11 that it has accepted the name plutoid to distinguish all dwarf planets lying beyond Neptune. . . . A plutoid is defined as a type of dwarf planet that orbits the Sun at a distance greater than Neptune and has enough mass for its self-gravity to give it a near-spherical shape. This characterization means “we have two known and named plutoids: Pluto and Eris,” says Marsden of the Harvard-Smithsonian Astrophysical Observatory.

Ceres, which is a mostly round rocky body about a third the diameter of Earth's moon (about 950 km) "is in the asteroid belt between Mars and Jupiter," is a dwarf planet which is not a plutoid. It is the largest celestial body in this category. Arguably, the category of dwarf planet which is not a plutoid is a category of one.

Vesta, Pallas, and Hygiea are also large bodies in the asteroid belt, but it isn't clear to me if they are dwarf planets, rather than a lesser designation. Their dimensions are as follows:

* Vesta 578×560×458 km
* Pallas 570×525×500 km
* Hygiea 500×400×350 km

The dimensions suggests that because they aren't spherical, that they would count merely as the largest asteroids, rather than as dwarf planets.

These four asteroid belt bodies are a significant part of the overall Main asteroid belt (citations omitted):

The vast majority of known asteroids are found within the main asteroid belt, between the orbits of Mars and Jupiter, generally in relatively low-eccentricity (i.e., not very elongated) orbits. This belt is estimated to contain more than 750,000 asteroids larger than 1 kilometer across, and millions of smaller ones. . . . The mass of all the objects of the Main asteroid belt, lying between the orbits of Mars and Jupiter, is estimated to be about 3.0-3.6×1021 kg, or about 4 percent of the mass of the Moon. Of this, Ceres comprises 0.95×1021 kg, some 32 percent of the total. Adding in the next three most massive asteroids, 4 Vesta (9%), 2 Pallas (7%), and 10 Hygiea (3%), brings this figure up to 51%; while the three after that, 511 Davida (1.2%), 704 Interamnia (1.0%), and 52 Europa (0.9%), only add another 3% to the total mass. The number of asteroids then increases rapidly as their individual masses decrease.

Every body in the solar system larger than Ceres is a star (there is just one in our solar system), planet (there are eight in the solar system), satellite of a planet (about fifteen larger than Ceres), plutoid (about six to eight larger than Ceres) or satellite of a plutoid (Charon is the only one known that is larger than Ceres). Some plutoids, such as Eris, have satellites that are all smaller than Ceres.

Jupiter's largest satellite, Ganymede, and Titan's largest satellite, Titan, are the only satellites larger than the smallest terrestrial planet, Mercury, although Jupiter's second largest planet, Callisto, comes very close.

Prior posts here, and here.

Statute of Limitations On Debt Clarified

The Colorado Supreme Court on Monday, in a technical but important decision, clarified the statute of limitations in the state for collecting debts and determinable amounts of money due.

Debts of the kind discussed almost always arise out of contractual agreements. The usual statute of limitations for breaches of contract in Colorado is three years from the date that a breach of contact is discovered.

But a different rule applies when the suit is to collect a liquidated debt or determinable amount of money due under a contract (e.g. under a promissory note, credit card agreement, or royalty payment agreement). The Colorado Supreme Court held that in this situation, the statute of limitations is six years from the date the debt was due, whether or not the person to whom it was owed knew that the debtor failed to pay.

Prior to this ruling it had been unclear whether or not a creditor's knowledge of the non-payment was relevant.

This practical effect of the ruling is to draw a very clear line, that requires no meaningful witness testimony to evaluate in most cases, in the single most common type of civil action in Colorado's courts.

The ruling favors debtors over creditors on the merits, but shutting down suits for late discovered underpayments. But creditors will appreciated the outcome procedurally in big dollar cases, because it narrows the scope of the evidence that is relevant in this kind of litigation. The ruling fits well with record retention practices of businesses, allowing them to evaluate what records can be thrown away on the face of their business records, and also fits well with the time periods in which credit records are maintained.

The unanimous ruling on a question of law that could have gone either way (the Colorado Court of Appeals reached the opposite holding) was a well reasoned analysis and resolution of a fuzzy gray area in the law.

A Microeconomic Mystery

The Denver construction industry is in the biggest slump in twenty years. So, why are FasTracks labor costs rising? I understand why rising commodity prices and declining sales tax revenues could influence FasTracks, but rising labor prices in this localized construction industry market make no sense.

Crime Down Outside Denver Proper

In an earlier post, I wondered if the big declines in Denver crime rates were a product of a suburbanization of crime in the metropolitan area. New FBI data suggest that this is not the case and that crime is down all along the Front Range, with the exception of Pueblo. More links can be found at the 5280 blog (Elevated Voices).

This makes the Denver use of DNA testing on minor crimes or other changes in policing increasingly implausible as a cause of the decline. It makes the possibility that gang activity has been disrupted, or that this is connected with a change in the character of the meth trade, seem more likely.

Incarceration rates have continued to increase, but the increase has been far more gradual than the dropoff of crime we have seen in the last couple of years. Incarceration has increased slowly, but steadily, for over a decade, and the rate of increase has not grown notably in the last couple of years.

Child Agricultural Labor

Environmental laws aren't the only laws agriculture receives exemptions from:

Federal laws permit a child aged 13 to work in 100-degree heat in a strawberry field, but do not permit that child to work in an air-conditioned office. Under the Fair Labor Standards Act (FLSA) the legal age to perform most farm work is only 12 if a parent accompanies the working child. Children who are 14 or older can work unlimited hours in the fields before or after school hours. The same law requires a minimum age of 14 years for non-agricultural work and limits such work to 3 hours per day while school is in session.

Furthermore, federal laws allow children to perform hazardous work in agriculture at age 16, while the minimum age for hazardous work in all other industries is 18.

Prepare To Die!

Nineteenth Century Tarot Card

Or suffer a horrible mishap that leaves you unconscious, or subjects you to immense liability that destroys your nest egg.

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Seriously, there is no time like the present. Your orphaned children will be forever thankful that you took the time to respect them by being prepared. Good planning can reduce confusion and litigation, insure that your children have proper guardians, put your wealth is in good hands and in the hands of the people you want to receive it, reduce the taxes and administration fees due at your death, and prevent creditors from receiving an unnecessarily high amount of your assets at your death (or during you life).

A good estate plan gives you much of the same peace of mind benefits as insurance, but you don't have to pay a premium every single year, although reviews to make sure you plan is current are a good idea every now and then.

Biochemistry v. Morphology

New research continues to substantiate a key observation about the nature of the genetic code: A large share of our genetic instructions go into establishing a baseline biochemistry of life, while a relatively small share of our genetic code goes into the morphological traits that distinguish a man from a mouse from a jellyfish. This explains, in part, why "macro-evolution" as intelligent design advocates try to label evolutionary steps that involve major changes in morphology, are less amazing than they seem.

Western Water Wisdom

Dan Whipple is making the right observations about Colorado water law:

Another reason I’ve been skeptical about the value of Western water is that the people who have it don’t treat it like it’s very valuable.

Western water use does seem divided between high cost/high return urban water users, and low cost/low return irrigated farmers (most of whom wouldn't even make any profit without a combinations of crop subsidies, cheap water and off season jobs in the city). Fishing and boating are worth more to Colorado's economy than all of its horticulture combined (farming and ranching combined account for just 0.6% of the state's personal income). It seems like a classic case of market failure, although the precise source of this disparity is elusive.

Unlike Mr. Whipple, however, I have encountered sitations where water is limiting real estate development. It is the principal force that is starting to limit development in Douglas County, Colorado where tap fees are sky high and not available at any price in some places. In Grand Junction, the water bureacrats have more practical control over urban land development than the planning commission, which is limited by municipal boundaries and taste, rather than hard supply limitations. I've personally seen property development plans crater in the face of five digit per house tap fees.

Landscaping and golf course regulations, at least in new developments, seem more likely than outright restrictions on growth. Indoor residential and commercial water use in modern construction (including the dreaded low flow toilets) is pretty modest. And, I don't doubt that when push comes to shove, that a lot of irrigated agriculture water rights will be bought out to allow for more urban development as it has been in greater Pueblo. The water markets may be inefficient, but they do exist and do function at some level.

Gentlemen and the Rule of Law

In the West, the "Rule of Law" is an almost untarnished ideal, while the alternative "Rule of Men," is almost synonymous with tyranny. After, the Bush Administration, it is easy to see why this is the case.

Historically, Chinese political philosophy has had almost the opposite bias. Rule by laws has been associated with lawyeristic tangles and the inherent incapacity of written laws to provide just resolutions of every situation. Meanwhile the Chinese, buttressed by a civil service selected by examinations on Confucian philosophy, were historically more bullish on the possibility of rule by men who come close to Plato's philosopher-king ideal.

Perhaps the closest Western civilization has come to the notion of a ruling class of virtuous people has been the notion of the Gentleman, in its late Victorian/military justice sense of conducting themselves in positions of authority honorably, who adhere to the highest standards of civility exemplified in sports like cricket. At one point in time, this was also a prevailing sense within the community of lawyers admitted to the bar, although this sense is fading.

The organized bar has struggled with this decline. Non-binding codes of civility have been promulgated, and have largely been ignored. Judges have developed a distaste for refereeing instances of minor misconduct in litigation that takes place outside their courtrooms. Social stigma has grown ineffective in most specialties within the community of lawyers as it has grown too large to informally regulate itself in face to face interactions of people who routinely encounter each other in their work.

As a result, we see the kinds of conduct we see in a recent defense of a police misconduct case (via Think Outside The Cage) against the city of Denver where the city has asserted defenses that while factual in nature (and hence within the province of a jury), and not utterly without a place in the context of the incident involved, are quite unreasonable, given the facts, and in light of the way the city and prosecutor's office have already evaluated the situation and addressed it. (The officer is off the force, and faces felony criminal charges from the incident.)

I can understand perfectly well why the City's attorneys have done what they did, although throwing the officer under the bus, a stance contemplated by the civil rights laws, might have made more sense. But how do we get to a place where there is more of an incentive to distinguish between strong and merely colorable claims? How can we encourage those who make the legal system work gravitate towards reasonableness?

I don't think that the rule of law and personal virtue of exclusive, indeed, they are necessary to reinforce each other. But right now, rule of law is carrying too much of the burden and we have devoted too little effort to building the virtue of those who carry it out, so that difficult questions on the fringes of the law cease to come up at all. Put another way, we need more Gentlemen (and more Ladies), if we are to make our Anglo-American legal system to work well.

World Changing For The Better

"A Gallup poll revealed the number of men who wore ties to work each day fell to 6 percent in 2007."

I count myself among the 94% who don't wear ties every day to work. I wear a tie to work about half of the time (and despite living in Colorado, I don't even own a bolo tie). But they have always been a useless, inconvenient appendage. Tie sales are down 50% since 1995.

Also in positive news, an "Imagine No Religion" billboard has sprouted up at 14th and Fox Street in Denver, sponsored by the Freedom From Religion Foundation.

It's A Girl

A little bunny told me that my brother became the father of a baby girl last night. Congrats to my favorite two (well, now three) Bostonians!

New Name And Format For CoCo

The publication formerly known as Colorado Confidential (affectionately known as CoCo by its friends), for which I used to write, has renamed and reimagined itself as the Colorado Independent.

The quality of the layout is far superior to its previous incarnation. Equally important, it has a more clear mission. CoCo was never sure whether it was a journalism site or a blog, indeed it was created with some intentional ambiguity with equal shares of bloggers doing journalism and journalists discovering the online medium. In contrast, the Colorado Independent unequivocally holds itself out as an online newspaper that has an associated blog (The Confidential), but isn't a blog itself.

Cara DeGette, formerly of the unaffiliated Colorado Springs Independent, has stamped her journalistic personality on the publication. She is the undisputed star of the show now that Jason Bane (front man for Colorado Pols and candidate for Jefferson County Commissioner) and Jim Spenser (former op-ed writer for the Denver Post) have moved on to other pursuits.

GOP Goes Regional.

The Republican Party has become a Southern regional party, rather than a national party. Dominance among Southern whites is not enough to win the Presidency.

Denver Crime Way Down In 2007

Denver saw a drop in crime (see the linked story's source here) for the second year in a row in 2007, across the board by type of crime, mostly in double digit percentages, and in all but a handful of neighborhoods. Some of those neighborhoods that saw the biggest increases in crime, like Stapleton and Green Valley Ranch, are simply seeing the side effects of massive population growth as new housing developments spring up.

Crime in my neighborhood, Washington Park West, is down more than 40% in two years.

This isn't simply a national trend:

Property crimes, which constitute the majority of offenses, fell by 11.2 percent last year. They fell by more than 15 percent in 2006.

Denver slashed violent crime by nearly 15 percent last year. . . .

According to the FBI, violent crime nationwide fell 1.8 percent in the first half of 2007 compared with the same period in 2006.

But in Denver, violent crime decreased 14.6 percent in the first six months of 2007 compared with the same period in 2006.

The big drop comes despite a weak economy and a lot of foreclosures in Denver. I'd be curious to see crime statistics from other metro area jurisdictions. Denver's real estate market has been, by far, the most healthy of the metro area. The suburbs have seen a collapse in construction and big drops in property values. Some have been hard hit by foreclosures compared to Denver. It is possible that we are seeing not a major reduction in metro area crime, but instead a suburbanization of crime as Denver proper gentrifies.

Mayor Hickenlooper cites DNA testing in burglary cases as a factor, but while this undeniably reduced burglaries dramatically in a few neighborhoods, burglary, where the DNA program was targeted didn't decline at rates notably greater than other crimes. Local meth production has virtually vanished as imports of meth replace garage labs, but that would be a national impact and Denver proper was never the epicenter of that particular part of the drug trade.

Another possibility is that the backs of some of Denver's gangs have quietly been broken. This factor is localized and responsible for a wide variety of crime types.

Ouster Of Niagra Falls Judge Upheld

The judge in question falsely imprisoned 46 people, until the press made a story of it, because a cell phone went off in his courtroom and no one confessed to it being theirs. The appellate court, thankfully, acknowledged that some abuses by power by judges in their official capacity, cannot be tolerated. (Previous coverage of this case at this blog is found here).

The Economics Of Webcomics

A couple of leading webcomic authors have recently discussed the economics of their art. First, Lara Innes, the force behind the webcomic, The Dreamer, an American Revolution/contemporary American romance comic:

We incurred some hefty fees from an attorney in regards to the future of The Dreamer. It’s good stuff, but it still costs money. You guys also like The Dreamer way too much: this past week you officially maxed out our bandwidth. Which is another good thing, but we had to upgrade our service. . . .

So here’s how The Dreamer works right now: I make absolutely no money. But it’s my full time job. That’s only possible because Mike [my husband] is all sorts of awesomeness and works his butt off so you guys get this web comic each and every Friday for free. Don’t panic: we have absolutely no plans to change that. But Mike’s job only covers our living expenses. And over this past year that I’ve been doing The Dreamer, we’ve incurred all sorts of expenses on the webcomic that have drained our savings. I’m sure you like getting paid for your job…? It would be nice to get paid for mine. :) Out of pocket we’ve had to pay for comic printing costs, convention costs (table space, travel expenses, lodging, food, etc), travel costs (to do my fancy pants research), web hosting space, advertising, art supplies, a new computer/monitor (mine died) which required buying a software upgrade on the entire Adobe Suite, a new scanner (mine died), and my printer died but I haven’t been able to replace it yet. Not to mention attorney fees, copyright fees, printing fees, post office fees, accounting fees, small business registration fees, etc, etc. . . . Here’s the truth: Right now I don’t make enough off The Dreamer to cover the cost of my pencils and paper.

Ms. Innes gets donations, but they are in the three figures, and must choose between freelance work that pays, and her own dream, made possible with spousal financing, despite the fact that her work is gorgeous and popular. Why does she do it, beyond the love of art? In part, she does it because she wants to end up like Gina Biggs.

Gina Biggs, who draws the contemporary romance comic Red String also recently discussed the economics of the format in an interview with her publisher, Dark Horse comics:

DH: Why did you decide to release Red String as a webcomic instead of through a traditional publisher at first?

GB: Ah, that's a fairly easy answer: lack of money. I wish it was more complex than that, but I had learned the hard way with my first self-published comic series that there's a lot more to making comics than just drawing them. If you're printing the traditional way, you need money not only for supplies, but also for printing, marketing, and distributing your story. It's expensive and for someone just starting up, it's a financial drain. When I discovered that webcomics weren't all gag-a-day computer gamer stories I became interested in the idea. I could save some money by posting online and building up my audience there. Then if there was enough interest, I would look into traditional methods as a bonus. Luckily, it's worked out [laughs].

Small comic book publishers (i.e. anyone other than the "Big Two" of Marvel and DC), aren't terribly profitable either and are a labor of love. But like a webcomic author hoping to break into print, comic book publishers are all about bringing it to the next level as well. Even Marvel and DC make only a small share of their money from actually selling comic books to a small but far more sophisticated than you would expect audience. Basically, print publication of comic books is their R&D budget, and is a plus as far as they are concerned if they break even. The money in comic books is in licensing the stories and characters as movies and merchandise.

Adapting comic books to the big screen is much more straight forward than adapting a book, and is a very inexpensive and low risk way to test market new ideas.

Printing a small, short introductory run of a promising new story or set of characters costs a comic book publisher something on the order of $10,000, in addition to some measure of royalties typically tied to sales for the author, some or all of which can be recovered with comic book sales, and is guaranteed to give feedback more honest than a marketing survey. The number of people involved in producing the proof before it goes to the printing stage is usually less than half a dozen, and often two or three. It doesn't take many more people to make a print comic than it does to produce a printed novel.

Successful movies based upon comic books are among the most profitable in Hollywood, but even $20-$40 million dollars is low budget for a comic book based film, with a blockbuster treatment costing ten times a much.

Of course, there is middle ground between webcomics, eBooks, print comics and ordinary books on the one hand, and film on the other. Radio shows and live theater can both cost much more and require far more people than than the former, but are far less expensive and require far fewer people than the latter. Indeed, several chapters of Red String have been produced by fans as radio show style podcasts, which are just as professional in quality as the webcomic itself.

Hurricane Prediction

This year's hurricane predictions is now in place. It is the only instance of which I am aware in which meteorologists make predictions between a five day or so short term forecast, and generally long term climate predictions (including El Nino effects), other than the decidely non-scientific Farmer's Almanac. This year is predicted to have eight Hurricanes.

The model based on factors like rainfalls in Africa, is fascinating.

Government Removes Omar Khadr's Judge

In the normal course of legal practice, you can't remove a judge in the middle of a case because he's ruled against you on discovery and jurisdictional issues. But, Guantanamo Bay's Military Commissions aren't the normal course of legal practice, and the military has done just that in a pending Military Commission case.

After the jurisdiction ruling the military hadn't liked, it convened a military appellate court that hadn't been at place at the time that the appealed ruling was made, that reversed that decision.

Just this week, the military had defied the Military Commission judge's order of several months ago to produce medical and interrogation records in the government's possession concerning the man facing trial before it. But this defiance, rather than causing the government to be held in contempt of court, produced the removal of the judge, Army Col. Peter Brownback III, from the case at the direction of the Chief Judge of the tribunal.

Previously, Khadr's defense attorney was disciplined for criticizing the tribunal and quit the case, and his prosecutor resigned out of disgust with the system. Under current rules in the tribunal, Kahdr's new defense attorney will be told the identity of the witnesses against him, but Kahdr' will not be told their identity.

The Case

Canadian detainee Omar Khadr was captured in Afghanistan in July 2002 when he was fifteen years old.

Khadr, now 21, faces up to life in prison if convicted at Guantanamo on charges of murder, conspiracy and supporting terrorism. He is accused of lobbing a grenade that killed U.S. Army Sgt. 1st Class Christopher J. Speer during the firefight in which he was captured.

He also faces charges of attempted murder and spying. The charged ordinarily would carry the death penalty. As explained at greater length below, however, Omar Khadr's primary crime is being a soldier without a license recognized by the United States government.

He is the only Western citizen remaining in Guantanamo. Canada has refused to seek extradition or repatriation.

It isn't clear that he threw the grenade in question. Wikipedia, citing the Toronto Star, notes that:

In February 2008, the Pentagon accidentally released documents that revealed that although Khadr was present during the firefight, there was no other evidence that he had thrown the grenade. In fact, military officials had originally reported that another of the surviving militants had thrown the grenade just before being killed.

He allegedly met Osama bin Laden when he was ten years old, and was in his parents care until, at least, the month before he was captured.

Historical Background

Immediately before the U.S. and U.K. led invasion of the country, Afghanistan was at what had appeared to be the final days of a civil war between the Taliban, a fundamentalist muslim theocractic government that ruled most of the country, and a rebel group known as the Northern Alliance, made up of regional and tribal warlords, which had lost control of all but a small corner of the country.

The Taliban had emerged out of the chaos that had left Afghanistan effectively stateless in the wake of the civil war with occupying Soviet forces. The Taliban, since 1996 tolerated and was loosely allied with Osama bin Laden's al-Qaeda terrorist organization, which was behind the 9-11 attacks, which took place in 2001.

After 9-11, the U.S. demanded that the Taliban deliver up al-Qaeda leaders, shut down terrorist training camps and provide protections to certain foreign nationals in the country. The Taliban had counteroffered to try bin Laden in Afghanistan in an Islamic court, an offer that was immediately rejected. The counteroffer was promptly rejected and on October 7, 2001, the U.S. and U.K. invaded in a military effort that leveraged the rebels forces of the Northern Alliance and used the Northern Alliance as the core of a new regime. Before, October 7, 2001, the U.S. had not taken sides in this foreign civil war and had not clearly declared that collaboration with the Taliban amounted to supporting terrorism.

By July 2002, the Taliban had been defeated in most of Afghanistan by foreign troops allied with the Northern Alliance. At that point:

The Taliban, who during the summer of 2002 numbered in the hundreds, avoided combat with U.S. forces and their Afghan allies as much as possible and melted away into the caves and tunnels of remote Afghan mountain ranges or across the border into Pakistan during operations.

Omar Kahdr's firefight took place during these mop up operations. The Taliban itself lived to fight another day, regained a measure of military power, and continues to conduct an insurgency against the U.S. supported regime in Afghanistan, controlling some areas.

The conditions of his detention and interrogation have been inconsistent with anything that would be lawful for a prisoner of war, or a criminal defendant.

Legal Background

Under the "laws of war," uniformed soldiers with the recognized military of a sovereign nation who are captured are not guilty of war crimes or subject to military justice for killing enemy soldiers in battle. Instead, they are classified as prisoners of war and are subject to detention for the duration of the hostilities after their prisoner of war status is confirmed by a tribunal of the capturing power.

Child soldiers are subject to particularly lenient treatment, as they are viewed as both prisoners of war who are themselves victims of war crimes.

But the U.S. did not recognize Omar Kahdr as a uniformed soldier for a recognized military of a sovereign nation. While the Taliban and al-Qaeda both had organized forces involved in the civil war in Afghanistan, the U.S. did not recognize soldiers not in uniform and soldiers affiliated with the al-Qaeda part of the insurgency as eligible for prisoner of war status.

Murder by soldiers is not historically war crimes, conspiracy was made a war crime by the fiat of the Military Commission Act of 2006, and support of terrorism is largely a criminal law concept rather than a military law concept. Spying is the only historical war crime for which Khadr is charged, and the species of spying he is charged with is more that of a scout or reconnaisance soldier (observation of troop movements from afar), than the kind of human intelligence in disguise traditionally associated with spying as a war crime.

Someone who is not recognized as a legitimate soldiers is not protected by prisoner of war status and is instead criminally responsible for murder and other crimes for warlike acts. Without the protection of prisoner of war status, or reductions in culpability on account of his age, Omar Kahdr is, under the logic of the U.S. prosecution in the Military Commissions, culpable to the same extent that anyone who was involved in a murderous criminal gang. Indeed, under the kind of reasoning used in felony murder prosecutions in a criminal court, his involvement in the firefight may make him guilty of murder even if he didn't personally throw the grenade the killed the U.S. soldier.

But because Omar Kahdr is being classified as an "unlawful enemy combatant," he can be tried before a Military Commission. Unlike the criminal justice system, this system has not afforded him protections from harsh treatment while detained, coercive interrogations, and delay in having his status determined. Furthermore, even if he is acquitted of the charges he faces before the Military Commission, he can be detained indefinitely.

Conclusion

Omar Khadr has been though hell because he was a child soldier fighting for a military force in a foreign civil war that the United States refuses to recognize as a legitimate military force, at the behest of his father. If he had fought in the same war for a different unit within the same insurgency that was associated with the Taliban, and had worn a uniform, he would have been a prison of war entitled to special protections under international law as a child soldier. But, this isn't how civil war is conducted in Afghanistan.

The legal system he is being tried in fails to meet any recognizable standards of military or criminal justice. Every player in the legal process in his case has been subjected to questionable political interference.

Khadr has been detained for almost six years, which is longer than some U.S. troops who commited war crimes in Iraq and Vietnam that caused death have been sentenced to in U.S. courts-martial, under conditions that do not meet international standards or U.S. constitutional standards for human rights. The death penalty has not been ruled out for him, despite the fact that the events in question took place when he was 15 years old.

This case has not, and will not, make Americans safer. The connection between his participation in an Afghan civil war, and the 9-11 attacks on the United States, is remote. This is not the sort of case where punishing an opponent is so important that our national honor should be sacrificed in the process. He is not a big fish. He is guilty of being an ordinary low level soldier in an insurgency, like thousands of men now held captive in Iraq and Afghanistan have done in the course of the U.S. involvement in wars there. But they have not faced similar treatment, and we do not claim that the other soldiers killed in the Iraq War and war in Afghanistan have been denied justice as a result. The person who killed the soldier whose death this case seeks to vindicate is probably dead already anyway.

Many of the other Guantanamo Bay defendants facing Military Commission trials are similarly small fry bit players in a larger civil war that they signed up to participate in before the United States was involved. The process, moreover, is so tainted that it cannot legitimately condemn even genuine senior masterminds of terrorist attacks against the United States, as a handful are alleged to be.

There are a lot of law review articles and op-ed opinions that argue that Military Commissions are a necessary compromise in an age of terrorism. The United States has tried the idea now. It failed to deliver anything it promised to do and has impaired the national security of the United States and its ability to effectively fight terrorism. Fighting terrorism is first and foremost about being able to secure cooperation by holding the moral high ground. President Bush and his lackeys forfeited the moral high ground at Guantanamo Bay and in doing so, have put us all at risk.

A Good Day For Textualism

The U.S. Supreme Court issued opinions in three cases today, that remind lawyers that the plain reading of the text of statutes matters, even when they product puzzling results and don't obvious serve either the larger scheme of a Congressionally enacted code or any obvious policy arguments.

In one, the court ruled unanimously (or nearly so, only part of the reasoning was unanimous) that an attorneys' fee provision governing awards in suits with the federal government allowed the prevailing party to recover paralegal fees at market rates. This is obvious, except for one key point. Attorneys' fees are limited to a far below market rate per hour, so this means that the prevailing party can recover more per hour in paralegal fees than in attorneys' fees. Still, the court took Congress at its word, leaving it free to craft such an irrational scheme. This makes a certain amount of sense because it is the dollars per hour cap on attorneys' fees and not the rest of the statute that is odd.

In the two other cases, the court indulged in fine line drawing (a more jaded observer might call it angels on pinheads analysis) to grant mercy to people convicted of money laundering in two different contexts.

In one of the cases, the defendant had $81,000 of cash in plastic bags in a secret compartment of his truck covered with animal hair, which he was driving through Texas to Mexico for the purpose of delivering as a salary to a leader of a criminal gang. The government proved that the defendant's actions had the effect of laundering the money, but offered no evidence that the defendant's actual intent was to launder the money. Concealing money does not amount to laundering it, the Court held. This is good and well as a general proposition, and the precedent will probably help some poor soul merely hiding money because he is afraid of highway robbery in some future case, but it is hard to reconcile with the facts of the particular case.

It would have been easy for the court to rule the other way, holding that judges and juries make take judicial notice of the context to an extent that makes it permissible to infer such an intent, but it chose not to do so, granting the no doubt shocked defendant, who surely believed that he was breaking some serious criminal law or another, a bit of seemingly random mercy.

Another case similarly due a fine line in a case concerning the applicability of money laundering laws to a situation where illegal gambling revenues where distributed as payments to various employees and customers of an illegal gambling ring. The law in question referred to "proceeds" of criminal activity, and the high court found in a queer 4-1-4 decision in which Justice Stevens cast the deciding vote despite the fact that the other eight justices disagreed with him on parts of his reasoning, that "proceeds" meant "profits" rather than "gross receipts" and thus that the government had not made it case. The statute was ambiguous on the point and the rule of lenity was applied. While the rule of lenity is a policy argument of a sort, its resolution can usually be ascertained from the text of the statute alone.

Again, it would have been easy to argue that a jury could have inferred that part of the gross receipts were profits, because they were dispatched to employees of the scheme, rather than exclusively to customers, but the court took a narrow view instead.

In both of the money laundering cases there is a plausible argument from the statutory text for the ruling that prevailed, but it is hard to see why the court would make such fine, and surely not necessary, distinctions in cases where the defendants are so clearly knowingly parts of organized criminal enterprises.

It is possible that there is some "shadow boxing" going on in these cases. In other words, there may be some unstated forms of legitimate conduct that the court is tryinig to protect by giving these statutes narrow intepretations. Given the degree to which money laundering can, in less crude cases, look similar to legitimate commercial banking, this isn't out of the question, but there is no strong evidence for this argument either.

These cases could also be read as a rebuke to federal prosecutors for sloppiness. The court surely isn't ruling in an effort to advance organized crime, and a concurring opinion in the case involving the money in the false compartment suggests that the government could easily have offered evidence that would have established its case. But neither prosecution effort seemed obviously deficient, and smart judges in these cases ruled in the prosecution's favor on these issues at trial, presumably based upon one fair and contextually sensible reading of the statutes.

This leaves textualism as the leading explanation for the results, and in a lower court that would probably be enough to explain these cases, but it still doesn't explain why the money laundering cases would receive grants of certiorari when the court would seem to have higher priorities than making fine distinctions for the benefit of obvious participants in organized criminal activity. The U.S. Supreme Court considers cases not just because they are wrongly decided. A case must also have importance beyond an incorrect interpretation of the law. This was probably, like most U.S. Supreme Court cases on federal statutory issues, driven by conflicts between circuits on interpretive issues.

Indeed, perhaps the most plausible story of how the court came to take on these cases and resolve them the way that they have is to demonstrate for circuit court judges that circuit conflicts on statutory issues will be resolved based upon textualism, even when the results seem implausible, in an effort to prevent such conflicts from arising in the first place. So, in the end, it was a good day for textualism in the federal courts.

Global Warming Predictions

Arid parts of the United States, like Colorado, and low elevation coastal area, like Southern Florida, seem like the parts of the United States most likely to be hurt by global warming.

A new U.S. government report, hailed for not ignoring mainstream science as previous reports did, makes predictions about global warming's impact over the next century.

Twenty-one models were used. Most "predict average warming in the United States this century topping 3.6 degrees Fahrenheit. Changes in five out of the 21 models used in the IPCC report shot above 7.2 degrees Fahrenheit. The report also draws on IPCC projections of global sea level rise between 7 and 23 inches this century."

The changes are likely to make farming more prone to crop failures, to make wild fires more common, increase drought in the arid American West, to reduce mountain snowpacks, to stunt coral reefs and to narrow polar bear habitat. Joshua tress are also in trouble.

Meanwhile, a new study on urban area carbon footprints points fingers at who is responsible. Denver was slightly better than average. New York did well because of high public transportation useage. West Coast cities, including Los Angeles, did well because they generate so little of their electricity with coal. The Midwest, less dense Eastern cities, and the South were the worst per capita carbon producers. Greater Cincinnati was one of the worst, as was greater Toledo.

Governor Ritter's Vetos

So far in 2008, Colorado Governor Bill Ritter has vetoed two bills, HB 08-1208 which would have limited the power of prosecutors to charge juveniles as adults without court approval (because as a former prosecutor he likes the status quo), and HB 08-1406 concering paid petition circulators (due to constitutional concerns). He also vetoed three footnotes to the state budget using his line item veto power. This is a fairly small number of vetoes, as expected in a year when Democrats have majorities in both houses of the General Assembly as well as the Governorship.

The direct file veto was something of a surprise because its provisions had already been watered down from the original version in an effort to please the Governor, but this was ultimately not enough to win the Governor's approval.

As others have noted, there was also a trial court ruling that found a key provision of the adopted state budget relating to school funding to be unconstitutional as a violation of TABOR. This is now being appealed to the Colorado Supreme Court. If the decision is affirmed, it may be necessary to call a special session of the Colorado General Assembly to revise the state budget to reflect the court decision impacting a $1.7 billion chunk of that budget.

All bills passed prior to April 27, 2007 have become law or been vetoed by now. The deadline for vetoing other laws passed on the last seven days that the General Assembly was in session in 2008 is June 6, 2008. Colorado does not have a pocket veto, but vetoes made after the session adjourns cannot be overridden. The Governor must affirmatively act to veto a bill to prevent it from becoming law. Bills not signed or vetoed will become law.

The hardest veto calls for a Governor are typically reserved for the last few days in which the Governor can act, so there will probably be a few more bills vetoed this week. There will also probably be a few bills which the Governor will permit to become law without signature because he doesn't approve of the bills, but doesn't disagee strongly enough to veto them. Neither the General Assembly website, nor I, have kept up to date lists of which bills remain pending, so I'll just have to wait with everyone else to see which bills remain on the cusp.

End Game

The upshot of the way the Democratic Party's rules committee decided to seat the Michigan and Florida delegations is as follows:

Obama needed 41 delegate votes to clinch the nomination; Clinton needed 244.

Today, Obama needs 64 votes; Clinton needs 240.5.

There are 291 delegates remaining.

Obama continues to lead in both pledged delegates (a lead mathematically impossible for Clinton to overcome today and Tuesday) and superdelegates.

The decision to seat Florida as half-strength was unanimous and unlikely to be overturned. The complex resolution of the complex situation in Michigan was approved by a 19-8 margin and will probably hold, but fueled intense ire from the Clinton camp, despite the fact that it improved Clinton's situation compared to the status quo.

Fifty-five pledged delegates are being allocated in today's Puerto Rico primary, and that vote will favor Clinton. The last two contests, on Tuesday, with 31 pledged delegates are likely to favor Obama.

I suspect that after Tuesday's pledge delegates are allocated, that Obama will need about 24 votes out of 201 superdelegates, while Clinton will need about 191.5 votes. Indeed, the Obama count may be a bit smaller than that, because Obama has been picking up a superdelegate or two a day for the past couple of weeks. There is no indication at all that the remaining superdelegates favor Clinton by a 9-1 margin.

Once Tuesday's contests are over, I suspect that superdelegates will rapidly jump on the Obama bandwagon in the hope of ending the contest before it becomes more destructive to the Democratic party's general election chances. Disputes over the Michigan delegation will soon become a moot point.

Aurora: While Waiting For The American Dream

Aurora, Colorado, Denver's neighbor to the East is probably the most ethnically diverse city in the state.

In raw numbers, the ethnic breakdown of Denver and Aurora are rather similar. Aurora has a larger black and Asian population percentagewise, Denver has a larger Hispanic population (and smaller non-Hispanic white population). But the overall percentages mask a critical fact. Denver is far more segregated than Aurora.

There are many neighborhoods in North Denver that are overwhelming black, many in West Denver that are overwhelmingly Hispanic, and many in Southeast Denver that are overwhelmingly white. Aurora's neighborhoods aren't color blind, but also aren't so monolithic.

A mom and pop Chinese restaurant on Havanna Street where I had lunch yesterday is typical. At one table an Ethiopian taxi driver warily kept his eye on his cab as he ate. A Chinese woman taking a break from cooking enjoyed a glass of water in a corner while reading a Chinese language broadsheet, while the proprietor offered up a mix of English, Chinese and Spanish to customers and kitchen staff. An African-American man and blonde white woman took turns holding a baby as they choose their dinner. A Mexican American man spoke in Spanish to his wife at a table in the middle of the restaurant as their several chidren ran circles around them stopping to eat now and then. A pair of Latino teenaged girls discussed boys in English at another table. A weary middle aged white woman in an even more weary looking Buick sent her pre-teen daughter in to pick up some take out. I had my lunch at another table.

A minority of Aurora residences are single family homes, and an even smaller minority are owner occupied single family homes. Sprawling, low rise mega-apartment complexes fill large swaths of the city. The apartment complexes, like Aurora's neighborhoods in general, are not nearly so segregated as Denver's. Long boulevards are lined with lonely sidewalks, low shabby subdivision walls, strip malls, and oversized churches.

Aurora has fewer people who are truly well off, and fewer who are truly destitute than Denver, something reflected in the educations of the people who live there. In Aurora, 15% of the adult population didn't graduate from high school, while 24.5% completed at least four years of college. In Denver, 21.1% of the population didn't graduate from high school, while 36.5% completed at least four years of college. The Aurora Public Schools have fewer children who score "unsatisfactory" on the CSAPs than the Denver Public Schools, but also fewer children who earn "advanced scores," despite the fact that the two districts have similar numbers of students who are "proficient" or better on the CSAPs.

Housing prices tell a similar story. In Aurora, just 2% of owner occupied homes are were worth $300,000 or more in 2000 (11.0% were worth more than $200,000), while 9.9% were worth less than $100,000. In Denver, 13.2% were worth $300,000 or more (33.7% were worth more than $200,000), while 10.7% were worth less than $100,000.

Aurora's residential neighborhoods are bustling compared to Denver's, and the people out and about seem more optimistic, for example, on the Aurora side of East Colfax, than on the Denver side. Despite guarded progress, long stretches of Denver's East Colfax seem to be full of people who have almost given up on life. On East Colfax in Aurora, from the border all the way to Fitzsimmons, the prevailing attitude seems to be the tomorrow will be better, in a mix of immigrant optimism and respect for medical center driven economic growth.

Denver is a place of stark contrasts between haves and have nots, where vagrants hang out on the sidewalks never to half a million dollar plus per unit condominium towers. Aurora's sprawling subdivisions offer a more uniform picture of working class to middle-middle class people who are getting by, but haven't quite attained the full fledged American Dream.