I can't decide whether I agree with Citizens United v. Federal Election Commission, which essentially ruled that the government is not allowed to regulate corporate speech intended to directly influence an election (in the specific case, a movie swift-boating then-candidate Hillary Clinton set to air during the most electoral-rich days of the 2008 presidential primaries). In a sense, it definitely seems like the court may be prepared to take the final step of declaring that all campaign finance limits aside from public disclosure is a violation of free speech, which would get us back to the worst days of influence peddling from the era of the robber barons. On the other hand, I think it really was an arbitrary law censoring the free exchange of ideas (silly and nigh-slanderous as they were), and that's hard to be a fan of. Of course, as always, one gets the impression that only one of the justices had to listen to the arguments before making up his mind. Indeed, so much so that the justices decided that they needed a second round of arguments when the conservative wing decided in deliberations that they would also invalidate parts of the finance law that weren't directly addressed by the case that was being argued before them.

But a part of me thinks that Supreme Court rulings aren't something that you should like or dislike, but some passive event like an earthquake or getting laid off. We've got some pretty big lemons here, what are we going to do with them? I wonder if there aren't opportunities here. The notion of public control of American government has been a bad joke since the 1920's and I haven't seen a regulation in my lifetime that hasn't been instantly worked around. I'm not so angry about it being unconstitutional, I want to talk about how it's been ineffective! We evidently can't remove the influence of money from elections, and we can argue about whether we should be allowed to try. So let's go further back to the source and try to create a culture in which absurd amounts of money don't help you much more than big amounts.

I like the idea of disclosure a lot. It would be nice if you could easily connect the dots to see that The American Family Foundation For Liberty And Family that ran that ad opposed to the public option was really the health care insurance industry taking money raised from your high premiums and using it to convince you to not reform their ability to continue making yet wilder profits at your expense. I don't think it's a liberal or conservative issue; I can't imagine that anyone likes it when a bully asks them why they are hitting themselves. And I am hopeful that the internet has made disseminating the truth cheaper and faster than producing an ad for a lie. We just need to develop the skills to do that, and more importantly to see the importance of it.

To underscore, this isn't a partisan issue. We haven't done anything if we just make ourselves smarter. We need to get people that we aren't used to agreeing with that none of us look forward to the corporate takeover of government, and until the Supreme Court gives the vote to corporations we all have the power and the responsibility of an informed electorate. We will always disagree over who our next Senator should be, but we will always agree that it is a decision that shouldn't be made as half-mindedly as we are used to.
I've been unsettled at this whole David Letterman story. On the simple side of the ledger, Letterman is a crap boss who plays sexual politics at work and is now getting a bump in the ratings (and increased advertising revenue, presumably) because rubberneckers want to stare and point at him apologizing and joking about it. I don't know what it will take to make America stop caring about his ego, but I wish we'd hurry up and find it.

The unsettled part is that the guy who blew the whistle is looking at fifteen years in prison because he attempted to negotiate an out-of-court settlement for potential civil damages that had been done against him. Admittedly, that's a very charitable assessment, but he could have planned to sue for the civil damages because his girlfriend was directly affected by Letterman's adultery and workplace sexual harassment, and it makes sense that it surely would have been worth more to Letterman to settle those charges before a public lawsuit was announced. Except I got around to looking it up this morning, and that's actually the definition of extortion.

It is against the law to threaten to sue someone if they don't take some mitigating action (evidently not just money and property, but also providing services).

Did you know that? I sure as hell didn't. All those times that some Usenet troll would harangue about how their lawyer was drafting motions yadda yadda yadda, it was waving a smoking gun around the place. It's a shame none of us were David Letterman, or we could have called our local District Attorney and had taxpayer money spent to fight our battles. This is a golden illustration of why a strongly progressive tax system is rational; rich people get more public services than the rest of us and therefore they should pay a premium for the premium treatment.
A few points on Roman Polanski.

- "There's the notion of art for art's sake, a certain leeway that's always allowed to the creative artist. In the 19th century it was elevated into an ideology. It's true we have a rather different vision of artistic licence [sic] – and, come to that, of licence in love." If this is an attitude in which the United States wishes to differ from France, then it is a facet in which I am proud to be an American, and I encourage my French bretheren to step back from their foolishness in the same spirit that I receive their alarm when we are blind. We have not arrived at this point in a particularly graceful manner, but I am glad that football MVPs and hit singers and actors and priests have started to pay the penalty for their crimes just as ordinary citizens do. We should be further along, but I would rather be here than where we were thirty or even five years ago.

- I don't want to hear the crap about how this is a case of repressed American sexual puritanism. A thirteen year-old girl was drugged and anally violated despite her emphatic and repeated demands that the perpetrator stop. This, Ms. Goldberg, is rape-rape*. It's a crime in Europe too. Indeed, in Roman Polanski's home nation, evidently the penalty for his crime is about to include chemical castration.

- The notion that the judge reneged on the plea deal is similarly absurd. Let's review the case (as informed by the wiki article). Polanski is initially charged with rape by use of drugs, perversion, sodomy, lewd and lascivious act upon a child under 14, and furnishing a controlled substance (methaqualone) to a minor. He cuts a deal with the DA where all of those charges are dropped and he agrees to plead guilty to a single count of statutory rape. Then he is sentenced to report to prison for ninety days of (pay close attention to the next two words) psychiatric evaluation. He is released after serving about half of this time. Then there is a second judicial hearing for the final adjudication of the sentence. It was initially suspected that Polanski was going to get probation, but then he found out that the judge was likely to sentence him to return to jail, so he fled the country. This isn't a judge going back on his word, this is a judge who is granted the authority to actually read the evaluation that he ordered and make his final determination based on that. Polanski got the second-sweetest deal I've ever heard of for a child molester and it still wasn't enough for him.

- I also have no sympathy for the fact that he was arrested at a film festival where he was attending in public. Polanski had thirty years to settle this matter in a manner that was more dignified by returning to the United States and submitting himself to face the charges that he plead guilty to or attempt to retract his guilty plea and have a trial for the original slate of charges. He did not take this opportunity, so he gets an embarrassing arrest.

- I have sympathy for the woman that Polanski raped, and am grateful that she gave such clear and chilling testimony to the grand jury, but she is not entitled to exonerate him. This is larger than her. This is ensuring the dignity of the thirteen year-old girl who is today on the casting couch of the lecherous forty year-old director. This is about telling every powerful and talented person in America that you can't skip bail just because you can afford to. Ms. Geimer isn't alone in wanting closure for this incident, but that closure should come from Polanski receiving a sentence and serving it, not from our judicial system deciding that some people are beyond our law.

- I am simply horrified at the degree to which the Hollywood rank and file are on the wrong side of this issue. I honestly am having trouble processing the knowledge that Terry Gilliam and Harrison Ford and Guillermo del Toro are cool with drugging and raping a child, and I honestly don't know if this will impact the way that I perceive their work going forward. It will undoubtedly affect the way that I perceive Hollywood the next time they choose to lecture me on some issue that they feel deserves my attention, because it won't get it. On the other side, I am pleased for the celebrities that have dared the veil of silence to criticize Polanski. Neil Gaiman. Kevin Smith. Kirstie Alley. Undoubtedly more that I haven't seen. These range from people I admire to people that I revile and some people that I don't know, but today they are right.

*) ETA EXTRA BONUS SIXTH THOUGHT: Whoopi Goldberg has apparently attempted to clarify her comments, saying that she was referring only to the fact that the only charge against Polanski is unlawful sex with a minor. So now we get to add in the "innocent until proven guilty" canard that would suggest that Polanski couldn't have drugged and raped a thirteen year-old girl because if he had then the district attorney would have prosecuted him on those charges. It's one thing to get drunk and run over a kid, it's another thing to use your influence to haggle the charges down to running a red light, but it's a whole new thing when you evade responsibility for even that and thirty years later your apologists are saying "Hey, he ran a red light thirty years ago, get over it already!"
I keep on thinking "Oh, I'm late to this story, so I'll keep my thoughts to myself." But, damn, the story has legs, so in I'll jump.

The one thing that I have no interest in is whether James Crowley is a racist. I don't know the answer to those questions (nearly nobody does), and moreover I don't care. Like Jay Smooth says, it's the Bermuda Triangle of conversations. If he is a racist, then he should have the professionalism to leave it at home when he is an on-duty police officer. And even if he would have arrested a white law-abiding person of interest in a felony investigation who was uncooperative and belligerent, then he shouldn't. Let's hold him accountable for his specific actions instead of laying out a rhetorical snare so broad that he and the Cambridge Police Department can slip out of it.

I am sorely disappointed by Crowley. I don't have all the facts either, but assuming that the most charitable version of the story is the incident report that Crowley filed (the quotations that follows are directly from that report), it portrays an abuse of power in at least two different areas. The first is a failure to identify yourself when asked. By Crowley's own admission, he "began" to supply the information several times and then switched to a refusal to answer because "I had provided it at his request two separate times." In other words, he knew that he had not provided the information. So you pull out a piece of paper and a pen and write down your name and badge number and the incident report number and hand it to him; you've provided the information even though he's still yelling at you. The second is what clearly seems to be a deliberate escalation to get him arrested instead of defusing the situation. Advising someone "to calm down", um, never works, the repeated tactics to move the conversation outside is evidently necessary because someone isn't engaged in disorderly conduct if they're in their house, and FFS you can defuse the situation by getting in your car and driving away along with the rest of the law enforcement community that is backing you up. The police are the majority of the disorder in the neighborhood, and the fact that you couldn't defuse the situation short of arresting and handcuffing a middle-aged man who needs a cane to walk speaks very poorly of you and the department that trained you.

But I don't get Gates either. I'm not going to tell the African American community or anyone else that the police are your pals, because they're not. They're not my pals either. Neither are they our masters. What they are is a necessary tool to allow us to live in a free society without it devolving into anarchism or barbarism. When a neighbor suspects that your house is being burgled and they send the police to investigate, that is a good thing. Not good like a trip to Disneyland, but good like a trip to the dentist. There is some discomfort, and maybe there are some demeaning instructions if you care to think of it that way, but it's someone who is on your team. And when I say "on your team", I mean both that he wants to keep people from breaking into your house (again), and he wants to get off your property as soon as possible. And the more efficiently you show him your ID and chuckle about how you were breaking into your own house, the sooner you get on with your day and he gets back to the doughnut shop. If you're feeling particularly sociable, you can thank him for arriving so quickly and wish him luck in catching a real criminal next time, or even introduce yourself to your neighbor who is standing outside. If dealing with a police officer doesn't leave you in a sociable mood, then don't. But the fact that this took more than three minutes (plus whatever he had to pay Charles Ogletree) is entirely on Gates' shoulders. There is a huge plate of problems between law enforcement and minority communities, but unloading on the beat cop standing in front of you right now doesn't seem like an auspicious way of creating a better world.

The whole thing seems like two guys having rough days who decide to play an alpha male heirarchy contest. The African-American man plays the "do you know who I am?" card, the preening cop calls the bluff and loses. Then in the next round, the President weighs in but is batted down by the police unions. The only really good idea I've heard is that Obama has invited Gates and Crowley to the White House for a beer. Maybe he should declare August to be National Calm Down And Share A Cold One With Someone Who Pisses You Off Month.
I have said that I'm frustrated with the double standard that we don't take domestic terrorism as seriously as -- um -- imported terrorism, and that we don't take Christian-grounded, pro-life, and white supremacist domestic terrorism as seriously as Islamic-grounded, pro-environment, and black power domestic terrorism. The evidence that I cited in the above article was based on the inequity of the charges filed against two different guys, and it was compounded later when James von Brunn was charged, like Scott Roeder and unlike Abdulhakim Mujahid Muhammad, based strictly on what he did and not on the emotional effects his actions had on the wider population.

What I said is true, but it might be that the formal charges are not the biggest part of the story. Both von Brunn and Roeder will be imprisoned for the rest of their lives if convicted, and von Brunn might even score the death penalty. On the flip side, terrorism charges against Roeder would probably be pretty futile since it requires finding twelve people in Kansas who all agree that placing abortionists on the defensive is intolerable. And hate crime charges against von Brunn might be hard to prove; if an Anti-Semetic white supremacist goes to a Jewish place and shoots the guy who held the door open for him, can you prove that Stephen Johns died because he was an African-American? That might be tough, and it's not quite like an assault or vandalism case where a hate crime conviction will increase the penalty. I suppose that District Attorneys are better than I at the cost-benefit analysis of the charges they can deliver, and perhaps I owe them a degree of deference.

But there does seem to be a problem in our will to suppress those terrorists that some of us agree with. I'm seeing a lot of articles on Google News about how powerless we are to confront "lone wolf" terrorists. This article from Fox News is typical of the "aw-shucks what can you do" school of thought. And everyone who has been paying attention for the past eight years knows that it's bullshit. We CAN investigate everyone who has ever donated money to an Islamic charity. We CAN add a byzantine layer of bureaucracy onto airport security that detains people based on their names and forces all of us to not travel with liquids just because this one time we sorta heard that terrorists were figuring out how to MacGuyver a bomb from innocent-looking ingredients. And we CAN aggressively interrogate suspects to learn about their plans and education and colleagues and their plans, even when we know we've disabled an entire "cell". I know that we CAN do these things because we HAVE done these things, and I don't even have reason to believe that we've stopped yet. What we lack is the will to apply the methods that have paralyzed Al-Qaeda for the past eight years to decentralized extremist coalitions that continue to kill Americans with impunity. Personally, I think that we should find a happy medium between the barbarism of extraordinary rendition and the coddling of allowing a prisoner the platform to continue to spread unsubstantiated fearM like he was Osama bin Laden himself, a happy medium that treats all prisoners and all potential victims of terror equally under the law.
Here's Caperton v. A.T. Massey Coal in a nutshell: a coal company loses a $50 million lawsuit over a reneged contract with a mining company and appeals it. But the state supreme court had an unsympathetic judge who was up for election, so the coal company CEO spends $3 million (evidently more than everyone else in the race put together) against the incumbent, who loses. This newly elected judge overturns the verdict. The plaintiff cries foul, arguing that the judge should have recused himself if only on the suspicion that he would be beholden to his largest contributor.

The Supreme Court agrees with the plaintiff. Would you believe me if I told you that it was a 5-4 ruling?? What, you would? Well, smarty pants, I'm sure that you wouldn't know that the minority would be made up of Scalia, Alito, Thomas, and Roberts ... uh, you knew that too? Wow, either you are psychic or 88% of our highest court is made up of sock puppets for ideological purity.

Scalia's dissent is particularly baffling. "What above all else is eroding public confidence in the nation's judicial system is the perception that litigation is just a game, that the party with the most resourceful lawyer can play it to win, that our seemingly interminable legal proceedings are wonderfully self-perpetuating but incapable of delivering real-world justice." Yes, people don't like that an expensive lawyer can give the upper class better results than an inexpensive one can give the middle class, but how do you get from there to the concept that we should therefore overlook the ability of the plutocrats to go beyond that and just buy a judge who will overturn a jury verdict?

The part the really bugs me is that the "just a game" and "incapable of delivering real-world justice" is spotlighted by this 5-4 ruling. I am very welcoming of the notion that elected judges should be presumed to be above bias for their contributors and that the gears of appeals courts would ground to a halt if every $100 donation was considered to be a bribe. We have a respect for freedom of public campaign fundraising in the United States (even for judicial elections in some places with some restrictions), and I don't want to trample that. So you issue a ruling saying that there is a line somewhere and it is fuzzy and you don't want to say that it's $10,000 because then rich people would know that they and their children and business partners can all safely give $9,999 and future courts would have to reconsider your edicts when inflation brings your limits down to working-class donors. But, for the love of all goodness, four Supreme Court justices can't agree with the majority that the judge should recuse himself when standing in judgment over a guy who gave you three million dollars? I suppose I shouldn't target Scalia when my real gripe is against Chief Justice Roberts for not crafting a 9-0 ruling that states that the ruling is very narrow and not open season on contribution-based appeals.

And, like always, I am grateful to justices like Anthony Kennedy and Sandra Day O'Conner. There are folks on the bench who are more likely to deliver the votes that make me happy, but I'm satisfied when a thoughtful center-right judge considers a case and delivers an opinion that doesn't insult my intelligence even if it goes against me. I think the nation would have been better served throughout its history had it always been filled with nine people like that instead of being a trailing indicator of the political outlooks that held the White House.
So, jury duty is over. Finished Thursday afternoon, actually, but I've been tossing the experience around in my mind for a while before committing it to ASCII. Still tossing, but I guess I should start writing it before the actual experience leaves my memory.

Two counts of Criminal Possession of a Weapon, in the second and third degrees. Long story short, possessing a loaded firearm somewhere other than your home or place of business without a permit or another sort of exemption. And "possession" is, IMHO, a definition that is broadened every year by the New York Legislature and courts to make prosecutions easier. No lie, you can be in a car with six other people, you get pulled over at a traffic stop, one of the passengers you don't know takes a weapon you didn't know existed out of their pocket and drops it at their feet, the police find it -- all six of you can be charged with possession. New York is just that tired of reasonable doubt. I'm not a fan, and that goes double when the charge is just CPW and not possessing a weapon in the commission of a "real" crime, if you know what I mean. I'm on board with reasonable regulation of our celebrated "well regulated militia", but this just leaves the icky taste of a potentially common crime that is disproportionately applied to the sorts of people the police don't like. (But to be candid, I have no hard evidence to support this suspicion.) So, going into the trial, I was conflicted as I indicated in my previous entry on the subject.

Essentially, the narrative of the case was that the defendant was in a hotel room bathroom with his girlfriend, washing his hands. The water was splashing the cuffs of his zippered sweatshirt, so he unzipped it and dropped it to the ground, at which point the miniature revolver in the pocket accidentally discharged, sending a .22 bullet cleanly through one of his legs and glancing off the other. D'oh. He goes off to the ER with his girlfriend, who puts the gun in her purse. A police officer who happens to be at the ER on an unrelated matter investigates the situation, immediately sees through their cover story, asks the woman if she has ID in her purse, and looks through it to find the gun. Ouch. Then the police talk to the defendant and the girlfriend until they arrive at the story I told above, take them down to the station where they both sign statements to this effect, and here we are. All this wound up taking a day and a half, with one day filled with the testimony of the girlfriend, two hotel employees, three police officers, and a crime lab expert who testified that this gun could theoretically discharge by dropping it on the ground but it is practically irreproducible and a solid defense attorney doing what he could to impeach as much of the testimony as he was able, and then a second morning of closing arguments and instructions.

I was able to satisfy any remaining doubts about two minutes into deliberations, when we were able to investigate the pants that the defendant was wearing when the shooting took place and observe that the three bullet holes were consistent with the highly unusual angle of coming from the ground a few inches away from the body. As much of a million-to-one shot as the accidental discharge theory might have been, there was no actual evidence and no credible speculation that anything else could have caused the wound but a gun falling out of his pocket. In addition, there was his own statement to police that he found the gun and had been carrying it around for a while. The entire deliberation took about two hours, including light discussion during a working lunch, mostly while we waited for the court officials to return from their lunch so we could hear a readback on some testimony and clarify the definition of "possession". After returning from that, we had a unanimous verdict to deliver. Another small carnival, clearing the court, and then we had a brief post-mortem alone with the judge who was happy to answer questions about all the stuff that happened behind in front of the scenes. It was the guy's "third strike". Oh man, 15-25 for shooting yourself, if you care to look at it in that way (which I don't; he got 15-25 for walking around with a loaded gun with no safeties on it and the only reason it wasn't more is because it didn't shoot someone else when it went off).

But it was a good experience. Perhaps this would be a better world if we had more pseudo-involuntary tasks to perform with eleven strangers from a broad cross-section of our community. And I learned that we've got at least one solid judge on the bench, our DA's office has at least one really sharp young guy in it, and even the defense attorney distinguished himself as well as he could with the case he had. I'd do it again, although I suppose I won't have the opportunity for at least eight years.
So, jury summons. Always a good time, forty bucks in found money, and killing a day around hundreds of strangers probably including probably at least one with swine flu. Plus, with my star-crossed luck I always get to play Voir Dire in the first pool, everybody's favorite game where two lawyers get to fight over which one is more eager to spend a peremptory challenge on me.

Well, today the lawyers didn't play the game quite right, and I actually got seated on a jury for the first time in my life. This is pretty fine with me, since civic duty yadda yadda yadda plus it gives me the opportunity to kill three or four days instead of just one. The downside is that the charge against the defendant is AFAIK (but am probably pledged against looking it up right now) the most foolish law in New York State, and there are no lack of candidates for that. Actually, even though I suppose I can't confirm or deny before the trial is over, just for lulz I should figure out how to create a poll to have folks guess what the charge is. Post a comment if you feel inspired. Of course, I can be objective and unbiased in examining evidence and testimony, but I sure hope it doesn't come down to the ethical quandary of determining the fate of a non-menacing person who violated the letter of a poorly written law.
Okay, we're gearing up for another season of Supreme Court nominee follies. I hope everyone remembers that the roles are switched again. If you're used to arguing that someone would take the court into dangerous ground or that some youthful indiscretion is highly relevant to future governance, then those are now some conservative's lines. Don't steal them; we now believe that we live in a democracy and should just put the matter up for a fair vote in the Senate.

But whether the balance of power is with the left or the right, there are two things I am plum sick of hearing. Let's take this opportunity to silence them.

First, that we must be on guard against "activist judges" who "legislate from the bench". Enough. If you don't know what "judicial review" is, then look it up before you start talking in public. Yes, yes, it's not in the Constitution, and that tricksy John Marshall is a nasty usurper who decided that the judicial branch deserves to be a full-fledged member of the governmental triumverate, shut up. The precedent is two hundred and six years old, and is surely no small part of why the union survived so long. Get a helmet already.

Of course, perhaps Orrin Hatch is not so reluctant that the current Supreme Court is widely expected to eliminate key provisions of the Voting Rights Act just as soon as they can decide which is the right knife for the job. This is a bill that was embraced by both parties in the Legislature and triumphed by President Bush, and from what I understand it's difficult to find one of the affected states who is actually looking for relief. One wonders if the Court would decide that a local utility doesn't have standing to overturn a regulation on states if it were a more liberal issue, but no matter. The Supreme Court has the right to determine the constitutionality of laws, and if we don't care for that we can seek redress in constitutional ways. I only hope that this result will give us a respite from the concept that judges shouldn't be deciding what the laws are.

The second thing that I'm tired of hearing about is that we need to have judges who correctly interpret the will of the framers of the Constitution. This is one of those statements like "OUR pizzeria uses FRESH ingredients" that leaves you with the unstated impression that their competition does not. I doubt you make it out of law school, much less an exemplary judicial career, without appreciating the foundation of the Constitution at a significant level. I would hope that the overarching lesson is that the only thing the Framers agreed upon is that they had to compromise or else America wouldn't get out of the starting gate. (Alas, this seems to be the one lesson that Samuel Alito doesn't take to heart.) You can walk around history like a buffet saying that you agree with John Adams on this and Alexander Hamilton on that and James Madison on the other, but at the end of the day you're just cherry-picking to intellectually justify your personal notions of how the nation should be governed. That's unavoidable, but don't put yourself on a pedestal, and recognize that the rest of your colleagues are doing the exact same thing even if it turns out that they agree with Hamilton on this and Madison on that and Franklin on the other.

Okay, time in. Let's just pick someone who paid the taxes on their nanny, eh?

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Matthew Daly

December 2012

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