Commentary on Alabama Law and Society

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Location: Birmingham, Alabama

Saturday, April 29, 2006

I Will Be Out Of Town

Until Wednesday. So I probably won't be blogging with my usual frequency, if at all. Don't fret though, I will be back at full speed soon.

Actually, I will be doing the fretting. This is really addictive. It's an outlet for all kinds or random thoughts. Blogging lets me pretend I have creative writing skills. I have been able to appreciate the wit of people whom I would never otherwise meet. I am really glad I did not discover this until after completing my education. I don't want to think about what my grades would have been otherwise. Anyway, I do not know how well I am going to handle three days away from my blawg. Hopefully I will find a computer and internet access somewhere along the way.

Otherwise, see you Wednesday.

Friday, April 28, 2006

Confession Time

Regular readers know that I have been a bit critical of Mini-Moore for his infamous op-ed piece in which he declared his intentions to reject the U.S. Supreme Court case of Roper v. Simmons. Roper made it unconstitutional to execute people for crimes they committed before their eighteenth birthday. The confession is this: I agree with Mini-Moore that Roper was a very bad decision.

What brought it to mind was this story. In essence, two race warriors were offended that some Hispanic kid would dare attempt to befoul the pure lips of white girl. These two red blooded Americans decided to teach the sorry Hispanic a lesson:

The attackers forced the boy out of the Saturday night house party, beat him and sodomized him with a metal pipe, shouting epithets "associated with being Hispanic," . . . . They then poured bleach over the boy, apparently to destroy DNA evidence and left him for dead, authorities said. He wasn't discovered until Sunday, 12 hours after the attack. The victim, who was not identified, suffered severe internal injuries and remained in critical condition Thursday.

The victim is probably going to die. When he does, one of the defendants will face the death penalty. Why one but not the other? Because one is 18, the other 17. That's right, one defendant evades death, not because he is less culpable, but because of a few days on the calendar. Same crime, same acts, different penalty for no reason other than a date.

The idea behind Roper, basically, is that kids are less capable of forethought, planning, and self control than normal adults, and thus less culpable for misconduct than normal adults. However, whether or not it makes them less culpable, the deficiencies are only true as a general matter. There are exceptions. We all know kids who are smarter than many adults.

Because it is generally true that kids have these deficiencies, for the sake of administrative convenience we set ages for driver's licenses, alcohol and other things. That does not mean no-on under 17 is capable of driving. It means that most of them are not and it would cost too much to individually examine every child who wants to be the exception.

Criminal trials, though, are as individualized as it gets. The whole thing, especially in a capital case, is about whether this particular defendant committed this particular crime and so deserves this particular punishment. If that particular defendant is too immature to deserve the ultimate penalty, the mechanisms are already in place to make that determination. There is no need for an absolute prohibition.

This story is one example of the arbitrary results of the rule. You can read Roper, or Adams (the case in which Alabama is asking Scotus to overrule Roper. The facts are here, at page three.), for another. If it is constitutional to execute an adult, I see no reason why it should not also be constitutional to execute the defendants in these cases.

An Exercise In Statutory Interpretation

I had a potential client come into my office and explain that she was accused of stealing $1,200.00 from her employer. So I go to the code to see what level of crime that is; i.e. whether it is first or second degree theft. What I find is this:

§ 13A-8-5. Theft of property in the third degree.

(a) The theft of property which does not exceed five hundred dollars ($500) in value and which is not taken from the person of another constitutes theft of property in the third degree.

§ 13A-8-4. Theft of property in the second degree.

(a) The theft of property which exceeds two hundred fifty dollars ($250) in value but does not exceed one thousand dollars ($1,000) in value, and which is not taken from the person of another, constitutes theft of property in the second degree.

§ 13A-8-3. Theft of property in the first degree.

(a) The theft of property which exceeds two thousand five hundred dollars ($2,500) in value, or property of any value taken from the person of another, constitutes theft of property in the first degree.

In short, the amount my client allegedly stole is not covered by the theft statutes. Third degree is anything up to $500.00. Second degree is any amount "which exceeds two hundred fifty dollars ($250) in value but does not exceed one thousand dollars ($1,000)." First degree is anything "which exceeds two thousand five hundred dollars ($2,500)." $1,200.00 does exceed $1,000.00 but does not exceed $2,500.00. Thus, it is not covered by these three statutes.

So, all you strict constructionists, suppose my client is charged with theft, and the state proves that the client knowingly obtained or exerted unauthorized control over the property of another, with intent to deprive the owner of his or her property, thus satsifying the definition of theft (Ala. Code 13A-8-2(1)). But the state also proves the value of the theft was $1,200.00.

You are the judge, I ask you to dismiss the case because stealing that amount of money is not prohibited by statute; it is neither first, nor second, not third degree theft. What do you do?

Thursday, April 27, 2006

I Just Finished Watching The Office

And I think my sides are going to hurt tomorrow from laughing so hard. Dwight, who we discover is a volunteer deputy with the Lackawana County Sheriff's department, finds half a joint in the company parking lot. He then dons his uniform and begins systematically interrogating his co-workers. He is excited because he has the opportunity to "fulfill every officer's dream: Solve an actual crime."

Unfortunately he has little luck. He has some leads. Oscar, for instance, has family in South America. So, reasons Dwight, he must be a mule. But no, Oscar has never "pooped a baloon." Dwight then asks Ryan for the keys to Ryan's car. Ryan says no. Dwight says they can do it the hard way, which is Dwight going to the police station and telling the cops with the cops then getting a warrant, returning, and demanding the keys. Ryan says, "O.K. lets do it that way." Dwight growls and moves on to the next target. Lesson to be learned? ALWAYS make them go get the warrant!

Questioning of the other employees is similarly fruitless. Dwight then invokes the company's drug policy - mandatory tests for everyone when drugs are found on the premises.

That gets Michael worried. He recently attended an Alicia Keys concert, and sat next to a girl with a lip ring. According to Michael, "they were passing a cigarette around. At least I thought it was a cigarette." So the rest of the episode is him trying to avoid the test. I won't spoil it, but it involves lectures on the danger of "smoking drugs" and coffee cups full of urine.

This is right up there with the Simpsons where Dr. Hibbard prescribes Homer medicinal marijuana.

Homer: "Otto spelled backwards is Otto."

Otto: "Yeah, and Shemp spelled backwards is hemp."

Homer "You're freakin' me out man."

I Agree With War Liberal

Who bemoans the involvement of Fox Sports with the BCS. Some folks hate Fox News; I hate Fox Sports. They are real high on my list of the worst things to ever happen to televised sports. So much do I wish they had never been born, that if you told me we could go back in time and, ab initio, get rid of them, but that we would also have to eliminate Fox's one positive contribution to society - The Simpsons - I would think long and hard about it.

I have plenty of reasons for my animosity including all the stupid graphics that leave about ten percent of the screen for the game. The primary cause, however, is that apparently the job description for color commentator is something like, 'Wanted, loud, ignorant, ex-athlete to sit next to a professional broadcaster and act like a buffoon during games.' This is every Fox telecast:

Play by Play Guy: Smith takes the handoff, heads for the outside, he turns the corner and is finally run out of bounds after a fifteen yard gain.

Color Guy: Boy, look at him turn on the jets as he goes around the tight end there. You can't teach stuff like that. Man is he fast. And the line is really playing strong, they are just blowing the defense off the ball. The defenders are playing without any passion right now. They are just going through the motions.

Play by Play: Now Smith goes up the middle for seven yards.

Color: He is really running down hill now, those big 'ol defensive linemen are just worn out. They can't keep up with him. He's past them before they even realize it. You can really feel the momentum swinging. And he is strong enough to plow over them if they do get in his way. Smith is putting his team on his back and saying let me carry you to the win.

Play by Play: Here is the snap, and oh, Jones breaks through and stops Smith for no gain.

Color: Wow! He really hit him hard! What a play! Look at that, he just lowers his shoulders and really hits Smith. Smith will feel that tomorrow. He can't run inside with those big boys and expect to survive for long. The defense is too big and strong.

Play by Play: Now Johnson is in the shotgun, here's the snap. He looks deep, pulls back, now the pocket is collapsing. Here come Jones, and Johnson is sacked.

Color: Oh man, they were just fired up on defense on that play. They really wanted the stop. You can feel the momentum shifting right now. You can just feel the energy, the emotion, powering that defense. They are going to carry this team to victory.

They are not all that bad. Troy Aikmen is pretty good. But most of them do not tell me one thing about the game that I do not already know. And if I had a dollar for every time I heard words like 'momentum' or 'passion' in a Fox telecast, I could buy the rights to the BCS.

Tax Evaders And Scofflaws

The tax man wanted to take Gary Jones' home from him. Gary owned the home for over thirty years and had recently paid off his mortgage. Unfortunately, Gary missed a few tax payments after he paid the mortgage. The mortgage company had always made them, and Gary just forgot about it.

So here comes the man, determined to seize the entire estate to satisfy a few years of missed taxes. The state begins the process by mailing notice of the condemnation to Gary's address at the house. Problem was, he had divorced, and his wife lived at the home. She did not sign for the certified notice, and it was returned to the state. Gary never found out about the sale, and the state knew he never found out about it.

Nevertheless, they sold it for about one quarter of its total value. Gary discovers this only when the new owner shows up to kick his ex-wife out of the house. Foul! Cries Gary. How can you take my property without even telling me?

The state courts say the state can do it because they made a good faith attempt to find you. But they knew they did not find me, pleads the poor ex-homeowner. Tough, you lose.

So he takes his case to Scotus. Surely those property rights loving big government hating conservatives will help him. It looks doubtful. Conservative heroes Scalia and Thomas say his argument would make it "burdensome, impractical" for the state to take people's homes. They say he has failed "to be a prudent ward of his interests." They call him and his kind "tax evaders and scofflaws." They want to affirm the state's actions.

But just when he had given up hope, to the rescue swoop the god-hating, government empowering liberals, led by none other than Chief Justice Roberts. They say the state acted unreasonably. The state knew that Gary had no idea his property was about to be taken. In light of that knowledge, they should have made another attempt to notify Gary, so that Gary could have redeemed his home. Yesterday, they closed the case of Jones v. Flowers with these words:

There is no reason to suppose that the State will ever be less than fully zealous in its efforts to secure the tax revenue it needs. The same cannot be said for the State’s efforts to ensure that its citizens receive proper notice before the State takes action against them. In this case, the State is exerting extraordinary power against a property owner—taking and selling a house he owns. It is not too much to insist that the State do a bit more to attempt to let him know about it when the notice letter addressed to him is returned unclaimed.

Congratulations Gary, tax evaders and scofflaws like you are what the constitution is all about. You might even say the constitution was written by tax evaders and scofflaws like you.

The Clone Wars

Two updates today.

First, Roy has yet another conspiracy for us. This time he is accusing Riley of bribing two businessmen.

Moore referred to Riley's decision in 2005 to invest $50 million from the state in Huntsville's Hudson-Alpha Institute for Biotechnology. The creators of the institute, James R. Hudson, founder of Research Genetics, and Lonnie McMillian, co-founder of Adtran Corp., have pledged $80 million in private investment for a biotech research initiative.

Early this year, Riley reported a $300,000 contribution from Alabamians for Biotechnology, a political action committee formed by the businessmen.

"That was quid pro quo," Moore said, defining the term for the audience as "something for something."

Maybe it was, but who has time to investigate it? We are already busy with Dubya's secret efforts to support Riley, the anti-christian federal judiciary, the corrupt pollsters, and the mad cows.

Second, Mini-Moore is no longer facing an ethics complaint. He was charged with violating the canons of judicial ethics by writing a news editorial in which he insulted his fellow justices and declared himself above the law. He certainly acted unethically, as I explained here. However, the commission made the right decision in dismissing the complaint. The First Amendment gives Mini-Moore the right to be a jerk, just like it gives you and I have the right to be jerks. You could make an argument that when he wrote the editorial, he was speaking for the court, and so has much less First Amendment protection. However, I think the substance of the editorial, and the fact that he did not participate in the case he criticized defeats that claim. But that his speech is protected does not mean it was anything other than ridiculous.

I think this hurts his campaign more than helps it. His entire message is "Help me fight the evil-doers." This is one less enemy to battle; one less opportunity to play the valiant cultural warrior.

Wednesday, April 26, 2006

Wisdom From John Adams

"In my many years I have come to a conclusion that one useless man is a shame, two is a law firm, and three or more is a congress."

That, while true enough, has little to do with anything discussed here recently, but it was google's quote of the day and I thought it was funny.

Promoted From The Comments

Is a response to this post by someone named Commontater. I have two reasons for the promotion. First, he spent some time on it, and I want to reward the effort. Second, responding is much easier with the whole thing in view. Here is his entire comment. My responses are in bold:

"First of all your ignorance shows too easily when you try to equate Islam with Christianity. You are making a cheap attempt to slander and demean the existence of Christians, especially the Christian foundation of this country. You say “By way of comparison, Afghanistan's constitution says “no law can be contrary to the beliefs and provisions of Islam.” Afghanistan, you know, is the place where they execute converts to Christianity.“

I ask you to look around, do you see Christians executing converts to Islam in this country? Do you see Christians executing atheist? No you don’t, Christians to a very large degree are a very compassionate people helping the unfortunate and downtrodden. It is Christian doctrine to turn the other cheek.

No, I never slandered Christians. The point of the post was that ARA's principle that God's Law, as recorded in the Holy Scriptures, is supreme in our land is the equivalent of the Afghan law that makes Islam the rule of the land. Both principles give the state the power to punish people for violating religious precepts. Islamists in Afghanistan use that power. I do not think Christians would also do so, but the point of the post was that I don't want to leave it up to them. I trust the law, not men.

The sympathetic cause that you see as a danger is only a desire that the nation might return to some morals and common decency in our culture. If that scares you then you scare me. Actually, I have no problem with 'morals and decency.' What scares me is that this is often code for one person imposing their scruples on everyone else. Your outlook on life is what got us into this moral breakdown that the country is suffering from now. Really? I caused the War in Iraq? The corruption of the Republican Party? The president's repeated lies and lawbreaking? Air and water pollution? Global warming? Poverty? Or did you have some other 'moral breakdown in mind? Only people with their eyes closed cannot see the nearly complete breakdown of our nation. My eyes are open, but I think we see different breakdowns. This breakdown is caused by the behaviors so often championed by people who love to live their lives with no moral guidelines. Certainly. For example, Dubya's firm belief in his own infalibility and total disregard of traditional just war theories caused the breakdown in Iraq. There is nothing wrong with having Moore-ality. No, there is nothing wrong with believing the first commandment. But there is something wrong with using your elected office to persuade other people so to believe. I will support him and any candidate who are true statesmen, no matter what ticket they run on. You are not going to support many candidates. He is one of the very few that has a conviction of principals instead of running after the money like most politicians do these days. You have noticed, I'm sure, that according to the latest reports he has spent big bucks trying to raise money. The problem is that no-one is giving it to him.

The United States was given birth by a people who fled the persecutions of tyranny, both religious and political. Amen. And who wanted to make some money. They designed a government that gave people religious freedom and yet it requires an internal moral character to make it work. I agree. When our government was created, the majority of the people lived their lives in good moral character as taught from the Christian bible. That's why they owned all those slaves, huh? And that 'thou shall not steal' stuff did not apply to property owned by Indians, did it? Our open free society flourished and it worked. When a majority of the people no longer have an internal love for and the will to commit themselves to moral goodness the system will fail and we are seeing that now. Really? Where? How? Examples, please? The US system will not work while its people have no love for morality. Why not? And what do you mean by morality? We are drifting every day into an ever increasing immorality all the while claiming our civil rights and freedom to do so. Again, examples please. If you cannot see the causal relationship of immorality to our destruction, then you really are stupid. Or you have done nothing to help me to see it. The end will be a very hard crash indeed and I for one do not wish that upon our posterity. The right to live immoral lives is an empty claim for personal liberty because a society will not last long under such conditions. Liberty is something that requires respect and today it is twisted into every kind of perversion. So what is liberty then? The freedom to live in a way that does not offend you? Wow, how exciting. The last virtue of a degenerate society is tolerance. No, tolerance is the first virtue of a free society. We are all different, and we are not going to live together very succesfully if some of us insist that everyone else think and act in the same manner. That does not mean all ideas are equal. It just means everyone has a right to be wrong.

Our nation was founded as a republic based on Christian morals and that is what made it strong. Now it has gradually shifted towards a democracy. No argument on the polity, but you have heard too many sermons if you think this nation was founded on christian principles. The people are voting for their rights to have every conceivable sinful lifestyle. I thought it was the activist judges at fault here? they are daily contributing to the destruction of our nation. Now we a reaping the fruits of a degenerate society. Granting the existence of the problem, what do we do to solve it? Do we establish a monarchy? Enforce levitical law? What do you want to do? The following wise observations hold true for a people who love their sin just as much as it does with the economies of a democracy. Feel free to substitute immorality for largess, selfishness and dependency. How about substituting lobbyists? Haliburton? HomeLand Security? Karl Rove? Richard Land? James Dobson? All are destructive. So are my suggestions.

'A democracy cannot exist as a permanent form of
government. It can only exist until the voters discover
that they can vote themselves largess from the public
treasury. From that time on the majority always votes
for the candidates promising the most benefits from the
public treasury, with the results that a democracy
always collapses over loose fiscal policy, always followed
by a dictatorship.'

'The average age of the world's great civilizations
has been 200 years. These nations have
progressed through this sequence:
from bondage to spiritual faith
from spiritual faith to great courage
from courage to liberty
from liberty to abundance
from abundance to selfishness
from selfishness to complacency
from complacency to apathy
from apathy to dependency
from dependency back to bondage.'"
Sounds great, but . . . . This is descriptive, that does not by itself mean it is also prescriptive. That yesterday I progressed from home to work to the Summit Club to work to home to the Mellow Mushroom (hmmm, pizza, hmmm, beer) to home does not mean I will follow the same path today. Further, where are the citations? How do I know this is even an accurate description?

So there it is. Keep it coming, this is the best part about blogging.

An Update

To the previous post.

First, I said therein that Justice Scalia was an undignified jurist. I then found this article (via How Appealing), in which the author makes the same point, provides several examples, and concludes:

The irreconcilable right wing cares little for the dignity of the court. Conservative bloggers were openly contemptuous whenever they felt betrayed by the Rehnquist Court, and some seem poised to attack the newly arrived justices, Roberts and Samuel A. Alito Jr., at any sign of inconstancy. That’s politics perhaps. Scalia, however, is no politician, but a robe-wearing justice. The court — and the public it serves — deserve better.

Second, for an example of how webcasts of the oral arguments would look, check out New Jersey's Supreme Court.

If you want to watch one in particular, I recommend this one, in which the question was whether the state's constitution prohibits the state from denying marriage to gay couples. Watch it, try to block out all your ideas on the subject, listen to the arguments, and then ask yourself if either of those arguments is so obviously right that the only reason the other side could win is because the justices are god hating liberals, or gay bashing conservatives, whichever the case may be.

Cameras In The Courts

Sen. Arlen Specter wrote an editorial in yesterday's Washington Post in which he argued in favor of televising Scotus arguments. I have to agree with him that this is a good idea, not just for Scotus, but also for Alabama.

The Senator, it seems, thinks the court is unduly harsh towards congress, and acts like a "super-legislature." His comments:

does the Supreme Court respect Congress? By a 5 to 4 vote the court has declared legislation protecting women against violence unconstitutional because of the congressional "method of reasoning" in passing it, and the insufficiency of the legislative record -- even though Justice David Souter noted in dissent that a "mountain of data" on the subject had been acquired from task forces in 21 states. Similarly, in a 5 to 4 decision, the court struck down a law prohibiting discrimination in employment because of an allegedly insufficient record, even though the legislation was supported by 13 congressional hearings and evidence gathered by special task forces in every state.

Within the past decade the court has expanded its super-legislature status by invalidating legislation it dislikes, plucking out of the air a brand-new doctrine that acts of Congress are "disproportionate and incongruent," whatever that means. That led Justice Antonin Scalia to admonish his colleagues for setting the court up as a "taskmaster" to determine whether Congress has done its "homework," a situation that he saw as an "invitation to judicial arbitrariness and policy-driven decision-making."

I do not want to spend the time and space necessary to correct these misstatements. (But you can read this if you want some insight on them). Suffice it to say for now that the reason I support cameras in the court is that I think they would prevent the kind of petty name calling practiced by Sen. Specter, Justice Scalia, Mini-Moore and their kind.

There is nothing magical about an oral argument. One side gets up, argues to the court and answers questions from them. Then the other side does the same. So long as someone explains the background of the particular case, anyone can watch it and understand it.

If folks could do this, they would soon realize that Scotus is not a bunch of 'black robed tyrants' altering society to suit their evil wills. They are people who have a very difficult job. Two sides have a conflict and the justices have to decide which one wins. Both sides have good arguments, or the case would not have made it so far. They do not always pick the best one. But few and far between are the results deserving scorn like that spewed by Sen. Specter. If folks had seen the cases about which he complains, they would know he is speaking largely from a bruised ego.

So that is why I think Scotus proceedings ought to be televised. The argument applies with equal force to Alabama. There is another reason that Alabama ought to televise its arguments. Scotus at least makes their written opinions available for free on the web. Not so Alabama. You have to pay for it, or else wait for the print version and then got to the nearest law library to read it. In a state that elects its judges, this lack of information is inexcusable.

You could object that this might mean unwanted publicity for the litigants. However, the cameras would only show the lawyers and the justices. As for the subject matter, by the time the case gets that far it is pretty public anyway. Someone might also argue that it would be a hassle, and maybe twenty years ago that would have been true. Nowadays, though, no-one need even see the camera. It and the operator would probably be in another room. But isn't this undignified? Won't it create a bunch of preening publicity hounds? The answer to that is: Justice Scalia and Mini-Moore. Things can't get any worse.

If You Want To Feel Warm And Fuzzy

This morning, read this.

Tuesday, April 25, 2006

I Attended A Luncheon

Today at which an Alabama Supreme Court Justice Bolin was the speaker. The talk left no doubt that Justice Woodall is not alone in his disgust at Roy, Mini-Moore and the Clones. [Justice Bolin, of course, used actual names rather than my terminology].

Our speaker began by saying he had thought about discussing the rule of law, but reconsidered when he remembered his audience was a bunch of lawyers and law profs. That would be preaching to the choir. Then he said he had re-reconsidered in light of the events of the last few weeks. Sad to say, but in Alabama whether or not we believe in the rule of law is a live issue. So he did discuss it, and encouraged us to stand up to the Moore-ons [again, my term, not his] and their followers. He said that while they have passion and anger on their side, we have logic and reason on ours.

Three things struck me.

First, that Mini-Moore is a pariah on this court. When we elect a judge, we do so first and foremost so that person can do his job. Mini-Moore has a poor work ethic. He has also managed to alienate, aggravate, and humiliate his 'co-workers.' Isn't that grounds for termination?

Second, the Moore-ons' claims are outrageous. Whether or not states are bound to follow the supreme court is a settled question. Like Justice Bolin said, no-one would be discussing the issue had not the Moore-ons decided to beat the dead horse.

Third, regardless of your political leanings, it is important to refute these guys. If the law does not bind Mini-Moore when Mini-Moore dislikes it, then it does not bind anyone. Is that what we want?

I Meant To Comment

Yesterday on the latest Guber polls, but blogger's crash prevented me. All I'll say here is that I think the Riley could take a six month vacation and still win the election. He is an incumbent with lots of money whose only big political mistake was a couple of years ago.

And there just is no opponent. Moore is toast and the Democratic side is laughable. What is there to say about Siegelman and Baxley? They are neck and neck with 'undecided' close behind. To me that says no-one knows, or cares, who they are. So are the Dems just giving up this year, and saving the real candidates for the next go-round?

The Company You Keep

Yesterday, Roy, Mini-Moore, and the Clones picked up endorsements from the Alabama Republican Assembly. Among other principles, some praiseworthy, the ARA is guided by this belief:

Conservatism without a moral anchor is baseless and void. We assert that God's Law, as recorded in the Holy Scriptures, is supreme in our land. Our laws and our system of justice must demonstrate a reverence for Divine Law in the Public Forum, without prejudice to any single denomination.

You can interpret this in several ways. It could say the Bible ought to be the law of the land. Or, it could say that our laws must accord with the Bible. Or, it could say we need to have a ten commandments monument.

I'll admit the third is relatively innocuous, but that the statement is susceptible to the first two readings is reason enough for me to reject it. By way of comparison, Afghanistan's constitution says “no law can be contrary to the beliefs and provisions of Islam.” Afghanistan, you know, is the place where they execute converts to Christianity.

Sure, the ARA throws in the 'without prejudice' language, but so did Afghanistan. Also, it says 'denomination.' In other words, different forms of Christian belief are allowed. What about everyone else? Are we supposed to execute them?

Now I am not saying this proves the Moore-ons want to establish a theocracy. All it proves is that some expressly theocratic folks think the Moore-ons are sympathetic to the cause. That alone is enough to scare me. I do not want any officials to even appear to endorse this type of thinking.

Monday, April 24, 2006

Alabama Christian Coalition Denounces Mini-Moore

John Giles, president of the Christian Coalition of Alabama warns us all:

Trial lawyers are one of the biggest threats to the erosion of our U.S. Constitution, traditional family values and religious freedoms in Alabama and America today.

A few points in response:

First, the quote might be accurate if what you mean by eroding the constitution, family values and religious freedom is arguing that people should have more rights and freedoms; that people should be judged solely on their merits as individual people, and not on their racial, religious or sexual status; and that the government should not be in the business of theological welfare.

Second, for a bit more nuanced response, read this opinion piece from Sunday's B'ham News.

I agree with the author, who says:

When it comes to trial lawyers, many of them would surely testify that their faith largely informs their choice of vocation and legal practice. These attorneys are often on the side of those who have little if any resources to seek justice for themselves in cases of damages they have suffered because of negligence -as in a job-related injury, or in the case of contractual disputes - as with an insurance company.

People across the political and theological spectrum disagree about any need for tort reform, but who would dispute the right of any citizen - small business owners, for instance, and the poor - for capable legal representation in such matters? It is a worthy vocation.

And it is safe to assume that these same faith-driven attorneys engage their beliefs as they engage the political process as well.

No one individual or group can claim a corner on the truth. No one, no matter how insistent or arrogant his or her arguments, should be so confident as to be closed to the possibility of their own fallibility. That is true when it comes to legal matters, and it is certainly true in the realms of politics and faith.

Never trust a lawyer who tells you that his practice is the work of god. No matter whether she is a prosecutor, criminal defense attorney, civil defense attorney, or plaintiff's lawyer, every attorney is going to take and argue cases with which they personally disagree. Furthermore, every area of practice involves harming some group. Plaintiff's lawyers want to destroy the economy. Criminal defense attorneys want to let criminals run the world. Prosecutors want to throw everyone in jail and let god sort them out. Civil defense attorneys want insurers to be able to take your payments and give you nothing in return. Anyone can spin any of these practices in any direction they want.

Third, and most interestingly, the same pamphlet says:

Judicial candidates will be asking for your vote this year. Tell them you will not support candidates who take trial lawyer money because of their anti-Christian agenda.

Tom Parker has allegedly received large donations from trial lawyers. Therefore, according to the Christian Coalition, Christians should oppose Mini-Moore in this year's judicial elections.

Does Someone Have a Case of the Mondays?

Yes, and it's me. Why? Because this should have been a great weekend, but it was not.

The problems started on Thursday, when I had some fish for lunch that I think was maybe a bit too old for human consumption. So I paid the price for that all day Friday, which ruined dinner plans for that evening.

Saturday was to be the first century of the year - The Old Howard One Hundred. It is a pretty decent ride. It starts and finishes in Marion, at Judson College. Most of the route is farmland, with parts going through the Talladega National Forrest. All the roads are low traffic. Terrain is flat to rolling. Generally a good ride. I thought I was over the stomach issues, so I headed down for the 9:00 start. All was well for the first 30 miles or so. After that it got painful. I started feeling nauseous whenever I would try to hammer. That was not such a big deal, I can handle discomfort, and could have just slowed down. If worse came to worse I could have dumped the bike and run for the woods. But then I also developed some serious pain in the area behind my left knee. I have no idea what caused it. It got really bad, feeling like someone was stabbing me with a knife. At one point, around mile 65, I unclipped the injured leg and pedalled with the other one. The result of this was that I bailed out at the 70 mile mark. The knee was scaring me, this was injury pain, not just discomfort pain.

Until Saturday, I had never cut out early on a ride. So that alone depressed me. Even worse, the knee issue has me worried about whether I will be ready for the 3-State 3-Mountain Challenge. That is my absolute favorite bike ride, and I will be very disapointed if I am unable to finish it. It is in Chattanooga on May 6, giving me two weeks to rest and hope my knee gets better.

And it turns out I was not over whatever my illness was. Doing the ride just made it worse. So I spent the rest of Saturday and all day Sunday laying on the couch wishing I could get outside and enjoy the beautiful weather. I could not eat anything, and just sitting up was exhausting. Even now I feel way below 100%.

Finally, blogger has been on the fritz for the last day and a half, so I haven't been able to vent about any of this.

Anyway, I hope you all had a better weekend than I did.

Friday, April 21, 2006

Alabama v. Adams Update

Scotus Blog has an update (and lots of good comments) on the Alabama case that gave rise to Justice Parker's declaration of independance from the law.

One commentator, who is a big-time death penalty proponent, has this to say:

Much of the criticism directed at Roper is valid. Even so, Justice Parker's suggestion that state supreme courts should stand in the courthouse door in the George Wallace tradition is beyond the pale. The United States Supreme Court was created by the Constitution for the specific purpose of giving a definitive answer to questions of federal law, to be followed by all other courts whether they agree or not. The alternative is chaos.

Justice Parker's claim that Supreme Court decisions only bind the parties and need not be followed by other courts is nonsense. Establishing binding precedent is the primary reason for the Court's existence. This is an essential part of our constitutional plan, which all judges are sworn to uphold.

Alabama may get an "E" for effort with this petition, but the effort is doomed. The chances of any of the Roper five changing their minds are in the same ballpark as my chances of winning the lottery.

An Excursion

From Alabama to the 9th Circuit U.S. Court of Appeals, which had this to say yesterday:

May a public high school prohibit students from wearing T-shirts with
messages that condemn and denigrate other students on the basis of their sexual orientation? Appellant in this action is a sophomore at Poway High School who was ordered not to wear a T-shirt to school that read, "BE ASHAMED, OUR SCHOOL EMBRACED WHAT GOD HAS CONDEMNED" handwritten on the front, and "HOMOSEXUALITY IS SHAMEFUL" handwritten on the back. He appeals the district court's order denying his motion for a preliminary injunction. Because he is not likely to succeed on the merits, we affirm the district court's order

First, this does not mean the school can prohibit the shirt. The student is currently suing the school for the right to wear the shirt. As part of that suit, he requested an order that would allow him to wear the shirt during the pending suit - a preliminary injunction. To get the injunction he had to show, among other things, a likelihood of success at trial. The 9th Circuit says he probably will not win at trial.

But he still may. The trial court gets to decide whether the student can wear the shirt. After hearing all the evidence and arguments, it may reach a contrary conclusion. It may not. In any event, the 9th will review this case again, I am sure.

Second, the majority opinion and the dissent are great examples of why free speech is either absolute or else non-existent. Long ago, Scotus decided that the first amendment protects the speech of students. It does not, however, do so with the same vigor as it protects adults. Schools get to limit speech that would disrupt the educational environment, or do something similarly pernicious. Anyone who has ever been a student knows that administrators and teachers think all speech disrupts the environment. Furthermore, courts defer to the authorities findings on the disruption. The result? Students get free speech when schools want to give it to them.

I am not arguing that students should have absolute free speech. I am just saying that when you start making 'offensiveness' exceptions the result is no more free speech. You can not know ahead of time whether some authority type will deem your speech offensive, or disruptive. Hence, you can never speak without fear of penalty.

For some better commentary, see this, and this.

Two Of A Kind?

This morning I hear on the radio that in China the sounds of protesters and critics were censored from media reports of Chinese president Hu Jintao's visit with Dubya.

I am certain Dubya is jealous of that power. Don't agree? Read this, and this. Also don't forget that criticizing the president undermines the war effort. The only reason Dubya does not censor the press is because our laws prevent it. If he could, he would.

I am not saying he is a bloodthirsty dictator. I am just saying I would not trust him (or any person) with the power to regulate the press. The way the administration currently deals with critics makes me shudder to think how they would handle the opposition in the absence of the first amendment.

Those Activist Judges

Are at it again. Their latest outrage? Increasing the sewer rates for JeffCo residents. The all wise leader of our county commission, Larry Langford, explains:

"The biggest reason why sewer rates that I inherited are what they are is because the courts said you had to do the repairs"

He does not mention why the court ordered the repairs, but the story does:

Ten years ago, a federal judge ruled the county had to repair the system to stop it from polluting the waterways after river advocates proved in court that the county was pouring hundreds of millions of gallons of untreated sewage into the area's rivers.

Not just any rivers, but the rivers from which we draw our drinking water. Larry also neglects to mention the super efficient manner in which the county went about the repairs. For an example, we need go no further than the same federal courthouse, wherein several county officials are awaiting the jury's verdict on bribery charges in connection with the sewer repair project.

Oh, and do not forget that the system is still leaking sewage into our drinking water.

So, should we do as Larry suggests and privatize the sewer? I don't know how a private company could do the job any worse.

Thursday, April 20, 2006

I've Been Waiting All Day

For Roy Moore and the clones to respond to Justice Woodall's broadside. So far, not much.

Moore is preoccupied with the latest conspiracy against him.

Former state Chief Justice Roy Moore said President Bush visited Alabama Wednesday to try to stop Moore from winning the Republican primary election for governor. The presidential visit was a "political payback" for Gov. Bob Riley's blind support and an attempt to interfere in the upcoming election, a statement issued by Moore's campaign read.

Dubya joins mad cows, pollsters, and the federal judiciary as those who are out to get Roy Moore. Moore just doesn't have time for any new enemies.

As for Mini-Moore, the Montgomery Advertiser reports he:

had no immediate comment on Woodall's criticism of him but issued a statement defending Fowler, whom Woodall referred to as one of Parker's "flunkies." Fowler, a retired Air Force colonel, spent time as a prisoner of war defending Woodall's free-speech rights, Parker said.

"I'm sad Justice Woodall is using this precious right to disparage an American war hero," Parker said in the statement. He did not return phone calls seeking additional comment.

He probably did not return the calls because he was too busy scurrying around trying to figure out how Justice Woodall is connected to the ACLU. Or Satan.

As for the clones, well, clones are good for following orders, but not so much on original thoughts. I don't guess we will hear from them until the original and Mini-Moore come up with something.

More Thoughts On Eminent Domain

As this story notes, the legislature failed to pass a constitutional amendment restricting the use of eminent domain. I've explained before that I am conflicted about the issue. On the one hand, no-one wants to see someone's home given to Stuf-Mart. On the other hand, cities need a way to deal with crack houses.

I think Illinois has come up with a pretty good plan. (h/t ACS Blog). Right now, if the city wants to condemn your property, the only thing you get to dispute in court is the amount they are willing to pay. That is, the just compensation. The Illinois law would also let you challenge whether or not the proposed use is appropriate. Also, the city would have the burden of proof on that issue. Finally, just compensation would include moving expenses and attorney's fees.

I like this because cities retain the power to improve neighborhoods, but it makes that power more expensive to use. Hence, they have an incentive to refrain from using eminent domain unless it will really produce a large benefit.

I wonder, though, what the standards are for determining if the use is appropriate, and who makes the decision - judge or jury. I would favor a jury, because they better represent the community. Whoever makes it would need some concrete guidelines. Words like 'appropriate,' 'reasonable,' or 'justified' do not really say anything.

Scotus Update

Clark v. Arizona could change the law in Alabama. The case presents two questions about the insanity defense. The first is whether states have to define it in a certain way. The second is whether states can limit evidence of mental illness to the insanity defense.

The answer to the first question will be no. There are several different forms of the insanity defense. States have always varied on how it is defined. There is no way this court is going to decide that the constitution requires one of those definitions. Nor should it.

The second question is more interesting. In Arizona, as in Alabama, the defendant can only introduce evidence of mental illness to prove insanity. Thus, in Clark, a capital murder case, the defendant was prohibited from using evidence of his schitzophrenia to dispute the element of intent. Using evidence of mental illness in that way is sometimes called raising a "diminished capacity" defense. The argument is that the defendant was not insane, but due to a mental illness could not form the intent necessary for the crime.

The way it worked in Clark was that the state argued that the defendant had driven his truck around a residential area, blasting his stereo, in hopes a police officer would intervene so that the defendant could shoot and kill him. The defendant tried to argue insanity, which in Arizona meant arguing that due to a mental defect he did not know what he was doing was wrong. The trial court denied that defense. The defendant then tried to argue that his mental illness meant he could not have acted with the purposes argued by the state. His argument was rejected by the trial court, because Arizona does not allow diminished capacity claims. An Alabama court would have reached the same result.

In my mind, the problem with the no diminished capacity rule is that it keeps relevant information from the jury. In a case where the state's theory involves forethought and planning by the defendant, the defendant's mental capacity bears on whether he could have formed such a purpose. If the guy has an i.q. of 75, or thinks he is an alien (from outer space, not Mexico), could he really have created such a plan? This rule prevents the jury from asking that question. Hence, they are making their decision with less than all the evidence.

Sure some of the time the evidence will be laughable. But juries will figure that out; most of them do not like mental defenses anyway.

So I think this is a bad rule. Then the question becomes whether it is so bad that the constitution prohibits it. Maybe. Generally, you have a right to put on a full defense. That is not an absolute right, but the state has to come up with some fairly compelling reason to get around it. The diminished capacity rule prohibits evidence relevant to the defense. The state argues it prevents confusing the jury. I do not think that will do it. Whether or not Scotus (Justice Kennedy, actually) agrees is what we will have to wait to find out.

Editors Needed

At the B'Ham news, where we see this headline today:

Federal lawmakers draw pensions to not die for.

No need to bother reading the story to fully understand that you do not split infinitives. And a preposition is a word positioned before another word, therefore it is something you can never end a sentence with.

Wednesday, April 19, 2006

The Clone Wars Heat Up

I spoke too soon. With thanks both to Kathy at Birmigham Blues, and the Decatur Daily we see that Justice Woodall is going on the offensive.

On his opponent in the Republican primary for state supreme court justice:

"It irritates me that nobody respectable will run against me in the primaries . . . . Instead, I get one of Tom Parker's flunkies running against me."

On Mini-Moore's infamous editorial bashing the other justices for following a Supreme Court precedent:

"I think I was the only (justice) who actually called Parker to cuss him out, but we all were mad . . . . It was cowardly and deceitful, and a whole lot of other words that I guess I won't say here."

On Mini-Moore's work output:

"He doesn't handle his cases; he just lets them pile up . . . . He's apparently so busy conspiring against the rest of the court that he doesn't have time to be a judge."

On the original Moore:

"Roy never had much interest in the law. I'd say he has an average legal mind. He's got enough of a legal mind to know that a lot of what he says (on the relationship between state and federal courts and on the separation of church and state) isn't true . . . . I sometimes think (Moore) has said it so much he's starting to believe it, but it's all gibberish. . . . I think everything Roy's done since the first camera was in his face was for political reasons. But I still have a lot more respect for Roy than I do for Parker."

On what would happen if Moore and the clones win their elections:

"I think it would set the state back 40 or 50 years, especially if Moore becomes governor."

On his own campaign, which he initially advertised as conservative:

"I had always thought following the law was conservative, but apparently not . . . . Following the law is moderate, I'm told. So I was going to put 'moderate' on the brochure, but I figured then people would think that meant I was a liberal. So finally I just said my philosophy was one of fairness."

Is this the spark of controversy needed by Roy and the clones? Or is it evidence of their insignificance? Only time will tell.

Cruel and Unusual Punishment in Public Schools?

Here are the facts of the offense:

Three middle school students have been expelled after a pornographic movie was shown during a social studies class. Baldwin County Assistant Superintendent Terry Knight says while the teacher had her back to the class, a student showed an inappropriate film with no audio on a D-V-D player. Knight said when the teacher discovered it, she reported it to the principal at Bay Minette Middle School.

I admit my first reaction was to laugh. Nevertheless, I will grant for the sake of argument that this is a punishable offense. Even so, is sending these kids to an alternative school for the rest of the year the best way to handle it? They did not hurt anyone or threaten anyone. They did not steal anything. They weren't selling drugs or carrying weapons. They were just being stupid.

Maybe they all had long records, and this was the last straw. If not, though, perhaps a more just penalty would have been enough time in detention to write a research paper on the problems of pornography, or something like that. That way they are penalized and also educated.

Tuesday, April 18, 2006


Speaking of some new housing development, a Hoover resident says: "We're not for growth at any cost in Hoover . . . We're for responsible growth."

That's like eating pixy stix and complaining about the sugar content. Hoover is irresponsible growth.

Sound Bites over Sound Policies

Is how I am tempted to label the latest legislative session. (Get summaries here, here, and here).

Let us rewrite our constitution so that it takes up less than two full volumes of the Alabama Code and protects more than the white property owners who wrote it? No.

Publicly take our stand on God's side in the war on Christians/against terror by creating God Bless America license plates? Yes.

Take some time to make sure we are not executing innocent people? No.

Allow property owners to summarily execute trespassers? Yes.

Give voters clear information on who gets money from who? No.

Make sure legislators can spend our money with no oversight? Yes.

Give us an actual voice in state government through initiative and referendum? No.

Give us a voice in the presidential primary? Yes.

But anyway, one of the lesser discussed failures was the bible literacy bill (HB 58). It would have allowed local school boards to "offer students in public high school Grades 9 to 12 . . . the course 'The Bible and its Influence.'" The course would have used a textbook of the same name. The book is apparently a fairly even-handed attempt to explain how different groups read the Bible, and some of the ways the Bible has contributed to modern culture.

This law would have been great primarily for the resulting lawsuits. We could have seen the ACLU and the Christian Coalition join forces to prohibit the class.

If not the ACLU, someone out there would have heard the words 'Bible' and 'public school' and immediately have run to the courthouse crying 'wall of separation! wall of separation!' Meanwhile, the Christian Coalition and similar types would have been mad because the textbook teaches the Bible in an academic manner, rather than as the literal word of god. In other words, they would be mad because the book does not violate the first amendment. Hence, their claim would have to center on some procedural misstep. (See this for a preview of what they might have argued). Both suits probably would have failed. The book appears religiously neutral, and legislatures have almost unfettered discretion to set academic policy. It sure would have made for some great blogging, though.

The law was also a pretty good idea. In my opinion, one very bad consequence of the religious culture wars is that it is almost impossible to have an academic course on the subject. Someone is going to get mad, so no public school wants to touch the subject. The result is that most of us have very little knowledge of what anyone outside our own tradition believes. Some of us may think that does not matter, because everyone else is going to hell anyway. But even if that is true, ignorance makes for some unnecessary suffering in the meanwhile.

The Clone Wars

Are turning into a real dud. The original is down 44 points in the polls. His response is to make conspiracy allegations:

This poll is being used to divert attention from the recent revelations of unethical political action committee (PAC) contributions to my opponent from such sources as the Alabama Education Association, trial lawyers and gambling interests. Other surveys taken across this state do not reflect these results, and just like my race for chief justice in 2000, this poll will be proved totally inaccurate on June 6, 2006.

Mini-Moore, like his master a man without anything of substance to say, is also desperately trying to hide his ignorace by manufacturing a new controversy.

And what have we heard from the Moore-ons? Nothing.

The fact is these guys are all single issue candidates. That issue - the original's ouster from the state supreme court - really was not a big deal. It also occurred several years ago. Thus far it isn't important enough to support all of them, or even one of them.

So maybe now they can all fade away. Part of me regrets that. It means less material for us bloggers. Another part is glad. Whatever their actual character, these guys present themselves to the public as petty, mean-spirited, ignorant, self-righteous demagogues. They are all an embarrassment to the state, the law, and their professed religion.

Monday, April 17, 2006

Lunch Today Was Excellent,

And it definitely filled me up, but something about having a sandwich consisting of guacamole, mushrooms, black olives, alfalfa sprouts, and Swiss cheese at the Golden Temple Vegetarian Cafe makes me want to go home and cook some ribs for dinner. Or watch some nASScar. And drink some lousy beer. Just something to re-assert my manliness.

So how many stereotypes did I just invoke? Or, of how many different types of bigotry could I be accused based on the preceding paragraph?

A Collateral Cost

Of the war on drugs are people like the folks mentioned in this story, who have been waiting over a year to find out from the state Department of Forensic Sciences what caused the death of a family member.

The problem is this. To convict someone of possessing drugs, the state has to prove the substance was a prohibited drug. That requires scientific tests, which costs money and takes time. It also costs money and time to resolve other forensic issues, like the death of the young woman. So there are lots of needs, but limited resources with which to meet them.

The solution is to either find more resources, or reduce the needs. The article says there are 2,000 backlogged toxicology reports, 1,350 of which are drug related. So if you want to reduce demand, drug cases seem like the obvious place to start. Add to that the questionable success of the war, and the argument for reducing drug cases gets stronger. They cost a lot of time and money, produce few benefits, and hinder other prosecutions. It is only a matter of economics.

Whatever the solution, the state needs to pick one. The current situation is bad for everybody. Victim's families have to wait, and wait, and wait for information about their loss. Prosecutors have to worry about other evidence disappearing while DFS produces the reports. Suspects have to continually wonder if they will be arrested. Those already arrested and unable to make bail will have to sit in jail. Everyone pays the costs of bureaucratic inefficiency.

I Missed This Story

On Friday, but thanks to Captain Bama, I can comment on Mini-Moore's latest tirade. He is incensed that Alabama would elect Hugo Black to our Lawyer's Hall of Fame. Justice Black, among other achievements during his 34 year term on the Scotus, authored the opinion banning school sponsored prayer - Engel v. Vitale. Prior to his Scotus appointment, he was a member of the KKK. Guess which one of these facts Mini-Moore is mad about. (See this for a hint).

Of course the KKK connection was temporary, and later refuted in word and deed. What I find most interesting about Justice Black is that he was a 'strict constructionist' yet authored many 'liberal' opinions like Engel. He was a principled jurist. Mini-Moore just doesn't like the results.

As for the liberal result in Engel, Mini-Moore says it "personally launched the war to kick God out of the public square in America."

It wasn't personal, it was legal. What could possibly be more of an establishment of religion than ordering young children to pray to a specific deity? The state was training them to follow a specific religion. People like Mini-Moore understand that children are impressionable because they frequently complain about liberal teachers using the classroom to impose their anti-American agenda on young minds. There is no constitutional text prohibiting the spread of anti-American dogma, but there is a text prohibiting the establishment of religion. Justice Black (and five other Justices) decided that text prohibited the state-sponsored prayer.

Nor did it kick God out of the public square. God, (in the Christian view) being an omnipresent spirit can't be kicked anywhere. Further, if he could be booted, he was not thrust from the public square. He remains there for all to debate. Any child in any school at any time may argue with another child, himself, or God about God. What Engel did was to remove the state's support for God. God must now succeed of fail on his own merits. You might say Engel was a decision favoring personal responsibility. If God wants followers, he is going to have to earn them on his own. No more theological welfare for him.

Saturday, April 15, 2006

I Had A Good Laugh

Today when I road across the Cahaba Beach Road bridge over the Cahaba River. Posted on the northern side of the bridge was a sign saying 'No Swimming. Public Water Supply.'

I laughed because while I read this, a group of boy scouts (vel sim) was about to launch a canoe trip from directly below the bridge.

I laughed again, because this was the Cahaba River. If you are from B'ham, you know that over the last fifteen years: Development upon development has been approved in the river's watershead; the JeffCo Commission tried to build a 'super sewer' along the river that would have crossed it numerous times; JeffCo's current sewer system routinely leaks into the Cahaba and its tributaries. So, we can drink all the oil, gas, pesticides, chemicals and sewage, but don't you dare dip your sweaty body into that river!

Friday, April 14, 2006

Some Excellent Advice

From an excellent writer, here. I may just follow it this weekend. Warm temps + clear skies = lots of riding and little substantive blogging.

Legalizing Marijuana?

I am sure many Alabamians, if allowed to vote for her at all, would not vote for Loretta Nall just because she favors legalizing marijuana. In that regard, go read this article (h/t TalkLeft). Here is a sample:

Last year, Harvard economist Jeffrey Miron estimated that the federal government spends about $2.4 billion annually on enforcing anti-marijuana laws, which is on top of about $5.3 billion that local and state governments spend annually. Under prohibition, we also forgo the roughly $6.2 billion in tax revenues that Prof. Miron says would be generated if marijuana were regulated and taxed like alcohol and tobacco.

Read the article and ask yourself, do the benefits of outlawing marijuana outweigh this amazing cost? Put aside passion, and do the math. It may be that marijuana is a problem, but is it a problem worth spending 14 billion dollars to fix?

White Collar Crimes

The B'ham News has an editorial today about the recent conviction and sentence of a former JeffCo sheriff for illegally using a criminal database. All I know about the facts of the case is what I've read in the papers, but three things about the editorial struck me.

First, the sentencing judge said that if he was a juror, he would have found the defendant's not guilty. The editorial then says: "But if that's the case, [the judge] could have (and should have) thrown out the case."

Not necessarily. The judge only gets to 'throw out' the case if he determines that no reasonable juror could convict the defendant. Here, apparently, the judge concluded that a juror could reasonably convict the defendant. The judge might not think that is the most reasonable outcome, but it is reasonable none the less. That a judge thinks the jury made the wrong decision does not mean the jury made an unfounded decision. Only if it was unfounded may the judge toss it.

Second, the editorial expresses concern that the sentence - probation - was too light, and that it "fits in with a bad pattern in Birmingham federal courts of giving the lightest possible sentences for white-collar crime."

White collar sentencing is not an issue confined to the Northern District of Alabama. (see, e.g. this, and this). Nor is it an easy issue to resolve. On the one hand, you have a case like this in which the defendants pose absolutely no future threat, and the crime was a one time occurrence causing little if any tangible harm. They did abuse their offices, but should they go to jail for that? On the other hand, you have folks like (if convicted) Ken Lay and Jeff Skilling. Their crimes were ongoing, and who can count how many people suffered as a result? Those two ought to spend the rest of their lives in 'time out.' So, in my view, the judge ought to have as much discretion as possible to set the proper sentence based on the particular case.

Third, the appeal could be interesting. In theory, the federal guidelines make sure the penalty fits the facts of the case, but in practice the guidelines are mandatory and often result in ridiculous sentences. I do not know whether the sentence in the sheriff's case was within the guidelines or not. If so, it will be affirmed on appeal. If not, then things will get interesting. The Eleventh Circuit loves law enforcers but it disdains below guidelines sentences. Thus, we will have a collision. My bet is that the sentence is upheld.

Thursday, April 13, 2006

Chuck Colson Debates Joe Copeland

Copeland, Alabama Democratic gubernatorial candidate:

Copeland's biggest concern is the state's "exponential growth." The Census Bureau estimates Alabama will add 773,000 resident between 2000 and 2025 -- an increase equal to the population of Jefferson and Calhoun counties. Copeland, who's single and has no children, expects too much of Alabama's growth to come from unplanned and unwanted children.

Copeland proposes to curb the growth by providing state-funded birth control. The state Medicaid program does this now for Alabama's poor, but his plan would be open to people of all incomes and would include everything from vasectomies and tubal ligations to birth control pills and intrauterine devices.

If the program is as popular as Copeland expects, he predicts it will reduce the state's long-term costs for operating government by reducing the needs for everything from roads to social services.

Colson, prison minister and republigelical (h/t Blue Gal):

If you could find and deport every undocumented alien in America, you would go to the grocery store next week and find the shelves bare. Without immigrant workers, we could not harvest crops. Just as happened yesterday, service industries everywhere would be shut down. With unemployment at a five-year low of 4.7 percent and with 200,000 new jobs added to the economy last month, there is simply a shortage of workers in much of America. . . .

But what’s the root of the problem? Why do we have a shortage of workers? Aha, that’s the unspeakable “A” word that the elite dread the most: abortion.

The reason we must allow millions of illegal aliens in to fill these jobs is because we have murdered a generation that would otherwise be filling them: 40 million sacrificed since 1973 to the god of self-fulfillment. And Americans are barely maintaining a replacement-level birthrate of 2.1 children per woman.

Remember the compassionate stuff that the abortionists used to tell us: “We are just preventing these poor kids from growing up in deprived, impoverished circumstances”? Hah! False. What happens is that others come in from abroad to live in those deprived, difficult, and impoverished circumstances and at great public cost.

Well that ought to show Mr. Copeland. How silly of him to rely on the Census Bureau instead of the all-wise Mr. Colson. If he had just asked the good minister, Mr. Copeland would know that the problem is too few people, not too many. Now that he knows his position would only lead to MORE immigrants, hopefully he will think again.

This Makes Me Proud

From a New York Times article on the recent immigrant protests (h/t Wade On Birmingham):

leaders have taken heart in the breadth of the protests and their locations in places like Birmingham, Ala., and other parts of the South where Latino political awakening is occurring after more than a decade of surging Hispanic growth.

"About two weeks ago, we called a meeting in which we included the radio stations, members of the Catholic Church, the newspapers, the directors of the soccer leagues," said Sigfredo Rubio, 34, a student at Cumberland School of Law in Birmingham, where a few thousand people protested Monday.

With "the first meeting of 15 people," Mr. Rubio said, "we had a connection with a couple of thousand, just through those groups."

"It just grew," he added.

Cumberland is a great school, but trust me when I say such activism among students is the exception, not the rule, at my alma mater.

Judicial Elections

More than one person has reacted to e-mailgate by suggesting we find a new way to select our state judges. (e.g. here, and here). Captain Bama reminds us that the state bar has already proposed a solution. You can find an explanation and link to the actual plan here.

Basically, it sets up two commission - a nominating commission and an evaluation commission. Both consist of lawyers and non-lawyers. The lawyers are from the plaintiff's bar and the defense bar. The nominating commission will pick three candidates for any vacant appellate judgship. The governor then appoints one. Six years later, that judge comes up for a retention election. Two month before the retention vote, the evaluation committee will release its recommendation and its reasoning.

I think this is an excellent plan. In my view, the biggest problem with the federal system is that the appointments are for life. If the judge turns out to be incompetent, or an 'activist' there is nothing you can do. This gives the people the ability to jettison any really bad judges. In that regard, the evaluation committee provides relevant data on which the voters can act, as opposed to the battle of red herrings that is the current system. This will go a long way towards eliminating stuff like the Champ III e-mail. It will return a sense of dignity and fairness to the bench.

It is a good compromise, which I fear is why it has no chance whatsoever.

The Housing Bubble

May be an issue in some of them there yankee cities, but according to this story, we ought to be alright here in B'Ham.

What A Difference An iPod Makes

Tuesday night is the big local group ride. It is fairly intense, featuring most of the local hammerheads. I add a bit to the group's loop, so for me it ends up being about 35-40 miles, at 18-20 mph. Having blown my legs on a frustrating 65 miler this past weekend, I just wasn't up for the Tuesday ride, so I went out on my own shorter ride. Even so, I still felt sluggish through the whole thing. I had to force my legs through every pedal stroke. I got home, with an aching back, having had two consecutive crappy rides, and started to wonder if I was just getting old.

Not so today. I hate getting up at 5:20 in the morning, but I do it so I can go ride before work. Today, at the early hour and in light of my recent frustrations, I needed some extra motivation, so I grabbed the nano.

Normally I do not use it when I run, or ride. I like to fully experience the world and the physical effort. But today I needed a distraction, and it worked. Having the music playing transforms the ride, especially when the song fits the particular section of the loop. I hit one particularly nasty hill (for those familiar with B'ham, Cahaba Road through English village to Key Circle and then up to Argyle) just as Stop (Jane's Addition) came on. It was great. There was a dude ahead of me, and with that harsh, almost angry, tune causing me to rejoice in the fire that was my legs, I blew past him just before the crest. The whole ride was like that. Those pedals were turned by the strength within; I did not have to force anything.

I won't make a habit out of riding to the iPod, because that would make it mundane. For today, though, it renewed my love of the bike.

Wednesday, April 12, 2006

I Am The Owner

Of two cats, and yet (or maybe because of that fact) I must say I hope cat-cloning does not become a routine procedure. They look cute, and I love my cats, but they are all furniture destroying, hair ball spewing, sleep disrupting psychos.

The Six Commandments

We are not the only state whose elected leaders only obey the law when they feel like it. The governor of the Bluegrass State has just signed a bill authorizing a ten commandments monument on the state capital grounds.

The governor says the new monument does not violate last year's Scotus ruling that made two Kentucky counties remove their monuments. His reasoning: The commandments are "an integral part of our history and an integral part of our law" and so the monument is "a historical marker."

I am not the first person to point this out, but has the governor, or any of the other folks who argue that the ten commandments are the foundation of our law stopped to consider that if the first four commandments were laws, they would patently contradict the constitution?

An Update

To this post from yesterday.

First, through the comments to this and this, I have learned that, contrary to the LA Times report upon which I relied, Georgia Tech may not have a hate speech code. If, as these commentators assert, the plaintiff was actually disciplined for harassment, or for disturbing a class, my previous analysis is off-target. In that case, what she was doing was more than just speaking; she was causing some real, concrete harm. Policy-wise, the school would be perfectly correct in disciplining her. The legal question then becomes whether she gets a religious exception to the generally applicable rules. That is a very thorny question, but the answer is probably no.

Second, I summed up the post by saying that certain crusaders think any attempt to present both sides of an issue is evidence of a liberal bias. In that regard, read this story. Then get the rest of the facts here.

Whatever Else

This may mean, if authentic it is strong evidence that we need a new method for choosing our judges.

Just read the e-mail, and ask yourself if anything in it accords with your ideals of justice. If you were to stand before any of the men mentioned in the e-mail, how confident would you be that you would get a fair hearing? How would you feel knowing the judge obtained his position because a few well-organized groups thought the judge would consistently rule in their favor?

Tuesday, April 11, 2006

You're Not Paranoid If They Really Are Out To Get You

I have done more than my fair share of ridiculing those who fear a 'War on Christians.' Now I must present the other side.

This story, and this story are big reasons why sleazebags like Joe Scarborough can get folks to listen to them. The first story is about a Georgia Tech student who wants to condemn gay people, but can't because to do so would violate the school's hate speech codes. The second is about a science teacher who showed to his 8th grade science class this video that repeatedly calls George Bush and friends a**holes.

As for the first, granted this woman is suing for the right to be rude and even hateful, but that is her right as an American. As a matter of policy, hate speech laws are a very bad idea. They create martyrs, and don't do anything to eliminate the speech. Let the market of ideas decide what stays and what goes. That is especially true on a university campus. As a matter of law, there is no First Amendment exception for offensiveness.

As for the second, granted the video is pretty funny, but what possible value did it have in an eighth grade science class? If it was a class in the social sciences, and was balanced by some criticisms of democrats, fine. As it was, I can not think of any reason - other than politics - for showing the video. Surely we can all agree that middle school teachers should not be using the class to advance personal politics.

Here is where I part ways from the crusaders. They think these situations are the norm, and therefore Christians need to unite in a country-wide counter-attack. I think these are very odd exceptions. I have no doubt that in most educational settings, the teachers are helping the students become rational, clear thinking adults. For some, that in and of itself is evidence of a 'liberal bias.' For me, it is the purpose of an education, as opposed to indoctrination. The biggest problem with situations like those in these two stories is that they give the anti-intellectuals amunition for their crusade.

Doing the Math

I commented a few days ago on the Alabama Federation of Republican Women's anti-immigration campaign. According to those respectable ladies, it costs 118 billion dollars annually "to provide government services, such as food, education and health care, to" illegal immigrants and their families. I guess the argument is that these folks just come over here and demand hand outs while refusing to contribute anything to society.

So yesterday, the Bama Blog posted some new census figures about per capita tax burdens. According to the post, the average Alabamian pays about $ 1,600.00 in taxes a year. $ 1,300.00 of that is from sales taxes and income taxes.

I'll assume that all immigrants are working off the books, and thus pay no income taxes. However, they all eat, and wear clothes, so they all pay sales taxes. The average amount paid in Alabama is $ 800.00 annually. In Alabama, sales taxes pay for, among other things, public education, no?

So, it appears to me that in Alabama immigrants do contribute tax dollars for the public welfare. They might not contribute an amount equal to the benefits they receive, but I bet most of us are in the red until we reach middle age. In Alabama immigrants don't mooch of the government any more than the rest of us. Or am I missing something?

Btw, for some insight on the recent marches, compare this, and this.

It Would Be Easy

To answer Roy Moore's charge that Bob Riley has forsaken basic Republican principles by saying you must first have principles before you can forsake them. But that would be too cynical.

Nevertheless, as I listen to the various candidate's rhetoric, and skim through their websites, I get the impression that none of the major party candidates really have principles. Now, I do not mean they are loose living, unethical people, I mean I just don't get the sense that any of them have a consistent government philosophy. They all have views on particular issues, but I do not see any theory tying those views together. Take Mr. Moore for an example, what theory explains his opposition to PAC money, his desire to acknowledge God in government, and his opposition to constitutional reform?

In my mind, this is a problem because it makes the candidate somewhat unpredictable. If I do not know what the candidate's general political philosophy is, I do not know how she will decide issues other than those mentioned in the campaign. Nor do I know whether or not I will agree with those positions.

That she appears to have a philosophy is one reason I could (if allowed) vote for Loretta Nall. Unless I am missing something, her starting point in political debates is: When it comes to government, less is more. The fewer government regulations of personal and economic interests, the better.

I probably do not agree with all the outcomes produced by that philosophy, but it provides predictability. I can at least make an educated guess on what her views will be on new issues. Furthermore, because I find the philosophy generally persuasive, I will probably agree with her positions more often than not.

I Have Explained

Why I am not ready to jump on the get-rid-of-eminent-domain bandwagon. This story is another illustration.

Basically, Selfish Property Owner's house burns down, and he leaves it in its burned and dilapidated condition, complete with trash thrown throughout the yard. After almost a year's time, and several requests from Local Authorities, the mess remains. Neighbors are upset and concerned about the quality of their neighborhood. They complain. So Local Authorities finally tell Selfish Property Owner to clean it up, or else they will and then put a lien on the property for the costs of the work. Selfish Property Owner tries to blame the delay on his insurance company and says "This is a government scam . . . and I am sick of government messing people over."

When I talk about misuses of eminent domain, I mean Kelo. Though not, strictly speaking, using eminent domain I see nothing wrong with Local Authorities' actions in this story. I think we would all lose if preventing future Keloes meant empowering guys like Selfish Property Owner.

Monday, April 10, 2006

Access Denied

My understanding of Alabama election laws is very limited. I think access to the ballot depends on whether or not you are a member of a political party. If you are, you get on it. If not, you only get on the ballot if you first collect some ridiculous amount of signatures - an amount equal to three percent of the voters in the last election. Oh, and you only get to be a party if your group received at least twenty percent of the votes in the last election.

So you don't get to be a party without the votes, but you don't get the votes unless you get on the ballot and you don't get on the ballot without the signatures.

The result? You and I only get to vote for state-sanctioned candidates. You may disagree with our libertarian candidate Loretta Nall, but surely everyone should have the right to voice their opinion at the ballot box.

Ballot restrictors will respond that too many candidates makes for a confusing ballot and an inefficient election process. Maybe so, but are Alabamians so dumb that they cannot figure out the ballot? Do we really need that much hand-holding from the state? And - to borrow an overused phrase - should concerns about bureaucratic inefficiency trump the citizen's right to deliver an 'up or down vote' on a candidate?

Flight Plan, Sheetrock Jesus, and Iran

Have you seen Flight Plan? It's an entirely predictable yawner of a movie, but it raises (unintentionally, I'm sure) an interesting issue. Be warned, though, for me to discuss it I'm going to have to give away the plot and its attempted surprises.

Basically, Jodie Foster's character Kyle gets on an airplane with her daughter and with her husband's corpse. The latter just died and she is bringing the body back to the states for burial. During the flight, Kyle falls asleep, and wakes up to find her daughter missing. Kyle frantically searches the plane, finding nothing. When she tries to get the crew to help, Kyle discovers that no-one on the plane ever saw her daughter. Nor did the crew remember checking her in. The daughter was not on the manifest. In short, there was no evidence that she was ever on the plane. Finally, someone contacts the morgue that packed up the husband, and the morgue says they also packed up the daughter.

This brings us to the interesting part. Kyle, who knows she got on the plane with her daughter, demands that the Captain order a full search of the plane. The search would be very inconvenient for passengers and crew, as well as dangerous. When the Captain refuses to carry out the full search, Kyle tells him he will have to apologize when she finds her daughter. Eventually, she finds her daughter, and the Captain apologizes.

For what? No doubt Kyle knew from her own personal experience that her daughter was gone, but put yourself in the Captain's shoes. All the facts of which he was aware contradicted Kyle's experience. So what was the reasonable thing for the Captain to do: Act based on the overwhelming evidence? Or act based on one person's sincerely held beliefs? In my view, he acted graciously in ordering even a limited search. Kyle should have thanked him, not asked for an apology.

Of course everyone is entitled to have strong beliefs based on personal experiences. Some of those beliefs, like Kyle's, may even be true. If, for instance, you think that praying while laying hands on a piece of sheetrock that resembles Jesus cured your blindness, that's fine with me. You may be right, who am I to say otherwise.

The problem is when someone draws from the premise 'I experienced X' the conclusion 'therefore you must do Y.' Sheetrock Jesus may have healed you, but I am still going to go to the doctor. God may have told you to invade Iran, but I'd still like some evidence before I commit my life to the cause.

Sunday, April 09, 2006

Today is Palm Sunday

So I thought I would invite a guest blogger to give us a few words of inspiration. If all goes well, I may invite him again some time. He is the Reverend Rob Patertson, and this is his post.

Today, we have for our text Mark's version of our Lord's passion. It is a text rich in applications for the modern Christian struggling against the forces of darkness. We see, for instance, in the story of the woman who poured perfume on the Lord, that it displeases our Lord when any suggest diverting wealth towards those who have not worked hard enough to earn their own. No, instead of encouraging slothfulness, we should spend our money on public expressions of religious piety. Remember this when we collect the offering today! We could continue expositing the individual parts, but instead will focus on a truth drawn from the narrative as a whole.

We see that the zealous Christian can expect unjust persecution. Our Lord did no wrong, yet faced the angry power of the state. He spent his life doing nothing but good for the people around him, yet those same people abandoned him to death. Had any of his followers dared to aid Him during His trial, doubtless they would have faced the same fate. But they were not zealous, instead, like Peter, they all cowered in the dark. If they had stood bravely near their Master, they also would have suffered unjust persecution. Therefore, a Christian who is not persecuted is not a zealous Christian, and if a Christian is persecuted, we know that the persecution is unjust.

The application of these truths is almost too obvous for words. Nevertheless, I call to your minds two of our greatest Christian leaders. Two men who have unjustly suffered over the past few months. Two men who faithfully endure the ridicule and scorn heaped upon them by the enemies of God. I speak of George Bush and Tom DeLay. Now, the anti-Christs among us will say these men are different than Jesus, because these two men have acted unlawfully, dishonestly, and corruptly. Fools! These are men of God! Therefore, as already demonstrated, any persecution they face must be unjust. The only corruption is the so called laws that would prevent their crusades for righteousness. Let us now explain why.

George Bush was elected in large part by faithful Christians. Christians are the Church. The Church is the Body of Christ. George Bush, therefore, was elected by no less than Jesus Christ. When he acts, he acts for Jesus. God knows all your thoughts, so how can it be wrong for God's chosen leader to know the subject of your telephone calls? Do you have something to hide from God? If not, what harm is there in letting his chosen leader know what you are doing? As for the accusations that our President lied about leaking classified information, this is easily answered. Jesus once thanked God for witholding information from the wise, while granting it to the foolish. George Bush witheld information from the people of this country and only used it for his own purposes. He did as God has done, and used the truth for his own purposes. There was no sin here. Far from it, our President has acted in a Godly manner. Woe be unto his persecutors.

Tom Delay is being persecuted because he used money for the Lord's purposes. He ignored 'ethics' rules to further God's kingdom. He made sure God's candidates for office had all the finances they would need to succeed. Satan's minions were mad because they did not have the resources to compete. Thus, this persecution.

So, my on-line brothers and sisters, let us pray for our persecuted leaders. And let us apply these lessons to our own lives. Are we zealous? If so, we can know that we will be persecuted. If we are not persecuted, it is because we lack zeal. We also know those persecutions will be unjust. Let us seek persecution, then, for it shows we are zealous, and it can do us no true harm. Let us persevere, and one day we will enjoy the victory.