Thursday, June 29, 2006

Do you like golf? Or do you just hate people who aren't boring?

Women's U.S. Open postponed by fog. In related news, golf loses its last chance of credibility in claiming that it is a sport.

Seriously. Fog. FOG.
Not a fiber optic gyroscope (FOG), the U.S.S. Fogg, John Carpenter's The Fog, not the fog of war (nor the shadow of the future), not Phileas Fogg, nor Josh Fogg, just plain ordinary fog. FOG???

The Indy 500 delayed by fog, I'll buy that, there's genuine peril in driving in fog (that said, it's auto racing, not going to rank #1 on my list of things I consider sports, it's right above curling). This ends the list of sports delayed by fog. Baseball has a credible claim (just ask Ray Chapman), but I've never seen a game undergo a fog delay. Football, they play through anything except lightning, there's no such thing as a weather delay. Baseball, if it's pouring rain, they delay it.

In golf? It really doesn't make a whole hell of a lot of difference if it's foggy. Maybe they're doing it because they're worried the fans won't see enough, but how much are they going to see anyway? If you're at the tee, you see Annika Sorenstam swing the club and the ball go off somewhere where you couldn't see it anyway. Even if it's pea soup fog, you know what, you've got a caddy, his job will be to find the ball if the Golf Channel doesn't first. And maybe it's the TV networks that are delaying it, but again, NFL games get played through fog, so I don't see why broadcasting golf in fog would be so impossible, except that it might add an element of something interesting, which would infuriate the PGA/LPGA, who limit their areas of potentially interesting occurrences to Phil Mickelson sucking and Annika Sorenstam playing with men, proving once and for all that women and men are both equal at boring the shit out of me.

Tuesday, June 27, 2006

Oh, by the way, after reviewing the book of Exodus, I noticed that God didn't promise not to cause more floods. He just said he wouldn't kill everyone with a flood.

So, for instance, wiping out Delaware with a flood...not a breach of his oral agreement with Noah. For that matter, given that God's promise was not fully performable within one year, it needed to be placed in writing, and rainbows do not fulfill the statute of frauds. Hence, unenforceable. Now as to whether mankind was an intended third-party beneficiary, that's a different question...

Monday, June 26, 2006

The Cruel and Unusual Execution of the Presumption Against Death

It's long been stated that there is a presumption against a death sentence. Although the death penalty has been eroded in a number of ways in recent years, the tide appears to be turning yet again with today's decision in the case of Kansas v. Marsh.

The Court decided today that Kansas' "tie goes to the gurney"* statute requiring a jury to sentence a defendant to death if the aggravating factors and mitigation were in equipoise was perfectly constitutional. Relying in part upon Walton v. Arizona, the Court determined that a defendant can be obligated to prove that mitigation outweighs aggravating circumstances in order to avoid a death sentence. Walton, of course, is not a direct decision on that point, instead determining that a jury does not have to determine a death sentence (since overruled on that point, of course). While Apprendi would not do anything to change the result in Walton, given that the statute's maximum penalty was death, it was just practically taken off the table, the Apprendi revolution seems to be getting surprisingly short shrift in today's decision.

In Walton, the Court noted that under Arizona's statutory scheme:

The burden of establishing the existence of any of the aggravating
circumstances is on the prosecution, while the burden of establishing mitigating
circumstances is on the defendant.

It becomes difficult, if one accepts the Court's determination in Marsh, to uphold the conclusion in Woodson v. North Carolina, since the presumption against death only means that a state must rationally narrow those who are eligible to the death penalty to those who have some peppercorn of aggravation above the statutory violation itself. Moreover, it is unclear why a mere outweighing of aggravation would be sufficient. Under Marsh and Walton's resurrected non-holding, the court permits placing a burden on a defendant to present mitigation "sufficiently substantial to call for leniency." As a result, there doesn't appear to be any reason that a state could not rquire mitigation to substantially outweigh any aggravating factors. The jury merely has to be permitted to consider all the mitigating evidence that a convict wants to present.

If a tie can go to the gurney, effectively the aggravating factors have been written out of the statute entirely, because aggravation and mitigation are in equipoise if neither is offered. While it is perhaps a contrivance to argue that the evidence was perfectly equal, and that an Allen charge was more likely the appropriate result, Marsh will likely be a springboard to states who want to tweak their death penalty statutes to ensure a larger number of people end up on death row, finally being given a way to combat Ring and Woodson.

We can see Kansas v. Marsh a number of ways, none of them positive. Maybe it's a pointlessly narrow case that just explains why the Michigan v. Long presumption is purely a silly O'Connor equity contrivance that should be eliminated instantly, especially in the context of the death penalty, where there is a presumption against AISG for Marsh now, but in habeas, the presumption switches immediately to the rule of Coleman v. Thompson, where the trap of AISG will once again swing to open the door to the death house. Even Stevens' rights-narrowing approach would make more sense than the mess of Long here.

Most likely, it is a statement that John Roberts really is a big fan of the death penalty, no matter what the habeas work and his Catholicism might have indicated. Kennedy thinks he's being innocuous after standing out as a hippie in Roper and Atkins, so he's joining a devastating death penalty opinion.

Fundamentally, the case is the death knell for the presumption against death. Perhaps it's finally clear that the Supreme Court needs more sports fans. Think of the aggravating circumstances and mitigation evidence as a scoreboard. While quantifying evidence is ludicrous, this demonstrates a dire flaw with the practicality of the system we have, and I won't attempt to correct it in this post. The jury found three aggravating circumstances

Only in law could the result in a 2-2 or 1-1 game be different than a 0-0. If it's zero-zero, Marsh wins a lovely parting gift to life in prison with no possibility of parole. If it's zero-one, Marsh wins life in prison with no possibility of parole. If it's 1-1...Marsh is executed. No wonder they say defense wins championships.

A professor of mine had offered three theories as to how the Supreme Court resolved cases...and it fits here. Marsh got cute -- or at least might have. The Supreme Court's decision is, typical of Justice Thomas, utterly uninstructive, saying only that Marsh did not outweigh the aggravating factors. It's unclear whether the mitigation was actually regarded as "equal" to the aggravation.

If not, then the don't get cute principle definitely applies here. Marsh would have lost on the scoreboard 3-0, and convinced the Kansas Supreme Court that the statutory provision was unconstitutional, because the tie went to the gurney.

Never mind if there wasn't a tie, the statute was unconstitutional. Kansas' Supreme Court got it right, the statute ought to be considered unconstitutional. It's just that there's no as applied challenge here, so Marsh got lucky, his sentence was struck down because of a statute that might have ended up having no impact on him whatsoever.

And, now, as a result, more people will die. Marsh's reign of terror continues, but now he has five accomplices wearing black robes, luring states to execute or execute with red tape more and more offenders and inspiring legislatures to bring back the presumption in favor of the death penalty.

It's a deadly game, and the Court's credibility is the big loser.

*The phrase is mine. Yes, I do feel pretty damn clever.

Monday, June 19, 2006

Friday, June 09, 2006

The Duke Lacrosse Case - Solved at last, thanks to Encyclopedia Brown! It was Bugs Meany!

Ok, I hate Collin Cowherd. Say what you want about Jim Rome, Jim Rome is generally offensive, so it doesn't really matter if he's right or wrong about something, you just know it's meaningless. Cowherd on the other hand isn't Jim Rome, he's a pale imitation of Rome who offends people by being a dipshit.

Today's topic, the report coming out yesterday that the second exotic dancer at the Duke Lacrosse party said the allegations were a "crock" and that she had spent the entire night with the first dancer.

Now I don't listen to the Herd with regularity, but the last time I did, Collin was going over the 400 reasons why it was a defense attorney's field day because of this same person contacting a New York publicist to see how she could "spin this her way". Today, he's going over why this destroys what's left of the case.

Basically, Cowherd's three premises besides 1) I'm a dipshit!.1) There's no DNA evidence. (Whee golly!)2) The dancer said that the allegations were a crock (at some point, the time frame on the report is not clear)3) You will distrust an exotic dancer because of what she does, as a matter of human nature.

I. All right, first, #1 is what is now gaining some academic tonnage in some circles as the "CSI Syndrome". Basically, because people are now aware of things like DNA testing, forensic sciences, and any number of absurdly preposterous technological advances they've seen on CSI and similar shows, they now EXPECT them and will make decisions based on them.
This is seriously problematic, since 1) these tests aren't as dispositive as people treat them because a) they can be tampered with, b) even if they weren't tampered with, you'd never know as a juror who's unfamiliar with electrophosphoresis, so unless you're abandoning your role as a juror, you really owe them absolutely no deference, because you're letting experts make your decisions for you and offer what essentially become legal conclusions. 2) Lots of cases will not have this kind of evidence or would be ill-served by wasting efforts running ballistics tests when you have 40 people who know the defendant and know he was the one who committed the crime. 3) Processes for separating DNA when there's a mixture of it introduce another layer of complication. 4) By having jurors who expect this evidence, we now create a new floor for cases. Rape cases won't be tried unless there's some sort of DNA evidence, because prosecutors don't want to lose. This is analogous to the disastrous rules that Congress added to the federal rules of evidence over everyone in America's objection (aside from NOW) that permit introduction of otherwise inadmissible past conduct by the alleged sex offenders. As a result of this rule, now a prosecutor will be less willing to bring charges at all if there's not a record of past sex offenses.

II. The second premise is utterly preposterous. If she described it as a crock, great for her, but you can't place any weight in it, because, as Cowherd pointed out on the previous show, she wants to "spin this for her". Well, this case is going down the crapper, so of course she'd say it's a crock. If in fact she said it ages ago, well, what made it more credible than what she's saying now? This thing has been a media frenzy from the outset. If you determine that the other exotic dancer lacks credibility (which I believe she does), then you have but one conclusion to draw from what she's said...and that's not a damn thing. Because it's not like she's only credible in one direction (like say, in making statements against interest), because she doesn't have an interest. If the victim says they're a crock, then it's pretty likely to be true (not absolutely likely, since in sensitive cases (domestic violence, sexual abuse) there's a lot of mental gymnastics in a victim I don't pretend to understand, but more likely). If some other stripper who has lost all credibility says it...doesn't change a thing.

III. I agree, although one caller hit him with a good response to this...she's a stripper, they're a bunch of horny kids who hired a stripper. Gotta say, if I'm really choosing sides on that one, it's hard to say that they're much better, and it's easy to make the argument that they're emphatically worse, since they've likely got a lot more options in life than a girl who becomes a stripper. I'm not saying it's true, but it's possible.

Two specious arguments he made sickened me. 1) The Duke lacrosse team was involved in more community service than any other Duke men's athletic team, 2) the Duke lacrosse team had the highest graduation rate. Well, as for #1, look at them, they're a bunch of rich white fraternity boys. "Community Service" dressed up as community service carries no weight to me, because I've been to college and would gladly rid the world of their community service in exchange for more people like my friends. Secondly, again, everyone graduated...well, they're a bunch of rich white kids. Basketball players don't graduate because they're not there to go to school (or do because Duke lets them slide by); football players don't have a 100% graduation rate because they too aren't there to go to school -- though judging by Duke's record, you'd never know -- and there's 120 players on the team. And there's the race thing. Sorry, but minorities graduate at lower rates, and people who come from lower-class backgrounds do as well. Those are two groups you won't find overly represented on Duke's lacrosse team, if for no other reason than the fact that lacrosse isn't really offered at a whole lot of inner city/rural area high schools. But good luck finding a high school without basketball or football.

As a final note, I should say, I'm pretty sure some of those lacrosse kids are guilty of something. Would I vote to convict? I'd want to based on the way their attorney has been trying to use the media to win his case, but no, I wouldn't. There's a reasonable doubt as to whether these were the guys who were doing whatever happened. In a house with 30 people in it, it'd be almost impossible to conclude beyond a reasonable doubt that these three people in particular did the things they're alleged to have done. There was no way a rape charge would have stuck on these facts, and the prosecutor only ran with it to try and raise his name and then maintain it after it became a media frenzy. He ought to be disbarred for his own use of the media in leaking information and for putting the alleged rapists in the spotlight for as long as he has, because it eliminated any shot of a fair trial or a successful one.

Monday, June 05, 2006

Percy Walton and the contradictions of Demographic Assault
Here's why Atkins v. Virginia and Ford v. Wainwright were wrongly decided.
I couldn't possibly care less whether he's insane or retarded. Moral culpability has nothing to do with the reasons people are executed. I wish people would just say what they mean.

Type A - "Focus on the Family"
People who want him executed say: "we want closure for the family."
People who want him executed mean: "we want revenge."Nothing wrong with that, I like revenge as much as the next Edmond Dantes, but I also think that it's not something I want my government doing. I honestly prefer vigilante justice in the raw form. I'd much rather have a pack of thugs go after Andrea Yates than a sterile governmental facility.

Type B - "Not in my garden of earthly delights"
People who don't want him executed say: "he's insane, it's unjust to execute the insane."
People who don't want him executed mean: "It's unjust to execute anybody." OR "Find me a murderer who's not insane."

Sorry, I don't see a whole lot of people outside of Justice Kennedy and Justice Sandra Day O'Scale who really think that there's a credible moral distinction between executing someone like Ted Bundy and executing someone who's insane.
This isn't the abortion rape & incest debate thing, which I find similarly misguided, if you're really pro-life and you can have any exceptions, you are exceptionally retarded. As soon as you step away from your moral absolutist position, you've lost all traction with your argument, because then you're engaged in O'Connor's garbage balancing tests, figuring out whether it's more wrong that the person was raped and has to carry a wonderful blessing from God or more wrong to kill the blessing from God.I'm not far off from either of the unspoken meanings in type B. I really think it's hard to classify people into the M'Naghten groups of incapable of appreciating that their action is wrong or not. Both people are totally mentally ill. If you kill for pleasure, you've got serious mental illness, you just might not have the right kind of mental illness. I'm not going to say that it's any more volitional, though, if you really have that all-consuming urge. The murderers who aren't mentally ill -- usually committing murders of policemen, other gang members, during robberies -- still would fall into my idea of mental illness, because I cannot honestly fathom the ability to kill another person as a volitional act. Apparently, there are millions of people who disagree with me, which is frightening, but necessary. (An army of conscientious objectors wouldn't have beaten the Nazis for long)

In any event, he's going to be executed, because the Supreme Court's not going to step in. Moreover, Tim Kaine is opposed to the death penalty, but had his hand forced in the election to vow to execute every person he saw. His re-election and his soul may depend on the choice he makes...but that said, he's a politician. He'll choose the former.