the dow blog

newton leroy gingrich: black to the future

2012-01-13T09:47:00.000-08:00

7 minutes, but you just have to watch the whole thing:

highlights:

i'm willing to head down into the slums of baltimore . . . and teach you people what a paycheck looks like.

that's just newt being condescending and dickish, or as he puts it, talking.

spanish; the language of living in the ghetto.

[do not miss newt talking spanish -- "the crappiest spanish ever" -- at the five minute mark.]

guess why women should not be permitted to serve in combat positions? because, silly, "females have biological problems staying in a ditch for thirty days, because they get infections."

enjoy.

newt, romney, santorum

2012-01-12T12:49:00.000-08:00

that's my prediction on how they finish in south carolina.

one poll out today has romney and gingrich separated by an amount that's within the margin of error.

if perry would drop out before the primary, virtually all his support would go to santorum, and then we might see santorum sneak into second place. either way, i'm betting gingrich plus the two ricks will beat romney in south carolina by a bigger margin than romney beat paul in new hampshire.

i'm sure rick perry will tell us why this is not judicial activism

2012-01-11T13:02:00.000-08:00

is it judicial activism when the supreme court invents a ministerial exception that allows some people and some institution to be immune from federal law even where congress has created no such exemption?

does this question answer itself?

newt's "concession" speech

2012-01-11T08:33:00.000-08:00

speaking of speeches that never end: newt's speech, after he managed to crush rick perry in new hampshire, went on so long even CNN cut away.

anyway, if you can stand to watch it, or if you did already, you'll know what i mean when i say that if i had a bottle of bourbon for every time he mentions ronald reagan, i'd own the entire state of kentucky.

http://www.c-spanvideo.org/program/GingrichNe

how i lost one dollar to kate black (thanks to the court of criminal appeals)

2010-06-11T08:22:00.000-07:00

danielle simpson was executed in november 2009. in our judgment (here, "our" refers either to tds or, more narrowly, to kate and me) simpson suffered from severe mental illness. he had instructed his federally-appointed counsel, wes volberding, that he wanted to waive his appeals.

the federal district court held a competency hearing to determine whether simpson should be allowed to waive, but (again in our judgment) the hearing did not have the procedural protections it should have. for one thing, there was no one arguing that simpson was incompetent. wes believed simpson was competent to waive. where the appointed lawyer believes that, the best practice is for the federal court to appoint special counsel solely for the purpose of contesting competence. that procedure is what the federal court in connecticut, for example, followed when michael ross sought to waive his appeals.

when the issue went to the fifth circuit, the court of appeals affirmed the district court's finding of competency without even bothering to read the transcript. (how we determined this is a long story, but there is no doubt it is true: a federal court of appeals permitted a death row inmate to waive his appeals without reading the transcript of the competency determination. if it weren't texas and the fifth circuit, i would be stunned.)

from our review of simpson's medical records -- which, incidentally, the shrink who deemed simpson competent had not reviewed -- we believed simpson was clearly mentally ill and not competent to waive his appeals. on top of that, simpson hired us after telling us, his federally-appointed counsel, and the federal court that he desired to reinstate his appeals. so our efforts were focused on permitting him to reinstate his appeals.

further, he had a strong appellate issue in his case, because there was strong evidence that, on top of everything else, he was mentally retarded.

simpson was scheduled to be executed on wednesday november 18. ten days earlier, on monday the 9th, we got his file from wes (the federally appointed lawyer). in the course of going through the file, we located, on saturday november 14th, a folder containing photographs of the twelve jurors. they were all white. simpson was black.

our focus in the case had been exclusively on the mental health and retardation angle, but when you see twelve white faces, you immediately think batson. (batson is the case that prohibits the prosecutors from eliminating blacks (or other ethnic minorities) from the jury panel solely on the basis of race.) determining whether there is a batson claim is challenging and time-consuming. for example, you have to learn the race of the people the prosecutor got rid of, and try to understand why. suffice it to say that i have never heard of a batson claim being assembled in less than week.

two other relevant facts: (1) one of simpson's prior lawyers had in fact litigated the batson issue in the case. (2) in a case involving a death row inmate named arthur williams, who had also litigated a batson claim, the texas court of criminal appeals (CCA) permitted him to litigate it again because williams' lawyers persuaded the CCA that the supreme court's decision in the miller-el case changed the law in such a way as to allow relitigation of a previously litigated claim.

like williams, simpson's batson claim was litigated before miller-el. so, in our judgment, his case was identically situated to that of williams, and we believed we should be permitted to litigate the batson claim again.

but whereas the litigation relating to mental competence was proceeding in federal court, the batson litigation had to go through the state court. we figured out that the prosecutor, when asked to explain why he had stricken a particular black from the jury venire, identified a characteristic of that potential juror that at least one white member of the jury also shared. the prosecutor had no problem with the white member of the venire. we spent saturday, sunday, and monday working on the claim, with the goal of filing it monday afternoon.

i had plans to see simpson on monday at the prison. i was discussing the mental illness litigation with him, telling him i probably wouldn't see him again, and informing him of the potential batson litigation.

as i was driving home, kate read me the draft of the pleading over the phone. it was almost ready to be filed, but she and i discussed making a few changes. we had a problem, b/c if we filed the batson claim and neglected to include an important fact or issue, we would not be able to correct that (the explanation of why that is true is too long and boring for this post, which is already too long, and possibly boring). but if we fixed it, we might not get the pleading finished by 5 o'clock monday, which is when the clerk's office closes. i decided we would be better off taking another day to make sure we got it right.

the cca has a rule, which is that when you seek a stay of execution less than 48 hours before an execution, you must include a so-called rule 8-101 statement explaining why you could not file it sooner. (contrary to some media reports, the rule does not prohibit so-called late filings; it simply requires that if a lawyer seeks a stay of execution in a certain time window, he or she has to explain why the filing did not occur sooner.) we filed the batson claim, along with a stay motion, on tuesday afternoon, and i included an 8-101 statement that, more or less, said what i have described above.

on wednesday the cca denied the motion and rejected the batson claim. simpson was executed wednesday evening. on friday, kate black and i were ordered to appear before the cca and explain why we should not be sanctioned.

so on december 2, with jordan steiker, a law professor at UT, representing us, we appeared before the cca. judge keller did not participate, so there were eight judges there. jordan spent around 20 minutes discussing the history of the case, and our involvement, and why the better professional decision was to file a superior batson claim a day late rather than an inferior batson claim a day earlier. then i stood up. i was questioned for about 20 minutes. most of the questions related to the merits of the batson claim. one question had to do with late filings in general. there was not a single question asked of me as to why we did not file on monday (or earlier). then kate stood up. she got no questions.

i bet kate $1.00 that we would not hear again from the cca on this matter. my thinking was that the issue was whether we had a good explanation for filing late, but not even a single judge asked me even a single question relating to timing. how could they find that we did not have a satisfactory explanation if they did not even ask us for the explanation? at the same time, i knew there was no way they would write an opinion saying i had done nothing wrong. so my prediction was that they would do nothing.

in what seems to be an emerging pattern where i make a wager, i was mistaken. they let kate off and issued a warning to me. i leave it to the conspiracy theorists to speculate as to whether there is any connection between this episode and the separate matter regarding the investigation of the state commission on judicial conduct into judge keller's role on the michael richard execution. i have already said that, in the richard matter, i would have done some things differently. but in the simpson matter, i would do it exactly the same way again.

who should succeed justice stevens?

2010-04-21T13:27:00.001-07:00

There’s too much talk about what potential replacements for Justice Stevens believe. It is more important to consider what a potential Justice will do. And when it comes to action, the President would be well-advised to nominate someone who is the exact opposite of Justice Stevens.

In 1972, the Supreme Court struck down the death penalty. Four years later, just six months after Justice Stevens joined the Court, it was reinstated. Justice Stevens did not merely cast a vote. Rather, along with Justices Powell and Stewart, he crafted the decisive opinions that forged the fundamental principles of modern death penalty law.

Joining Justice Stevens in voting to bring the death penalty back was Justice Harry Blackmun. Yet two decades later, having permitted more than three hundred executions to proceed with his imprimatur, Justice Blackmun finally acknowledged that the death penalty regime is so deeply broken that it cannot be made fair. The system favors the rich over the poor; it values white skin more highly than nonwhite; it is far too frequently vitiated by police, prosecutorial, and even judicial improprieties. Justice Blackmun concluded that the only lawful and morally acceptable course is to oppose the death penalty in all cases, and he acted consistently with that belief: He began to dissent from every order of the Court allowing an execution to take place.

It took him another decade, but Justice Stevens eventually reached the same conclusion. In a case involving the constitutionality of lethal injection, Justice Stevens observed that an execution represents “the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.”

But unlike Justice Blackmun, who, after supporting executions for decades, turned his back on the death penalty experiment and refused to cast a vote that would allow someone to go to his death, Justice Stevens continued to permit executions to proceed apace. More than one hundred executions have been carried out since Justice Stevens had his epiphany, and he has remained silent nearly every time.

Last November the State of Texas executed a young man who was sentenced to death after jurors consulted the Book of Leviticus during their deliberations and concluded that the Bible required that they impose that sentence. I doubt Justice Stevens actually thinks it is acceptable to sentence someone to death in America just because the Hebrew Bible says to. What I know is that, confronted with this case, Justice Stevens said nothing.

He doesn’t always refuse to act. Last June, Justice Stevens joined four of his colleagues in throwing out a decision of the West Virginia Supreme Court because one of the judges on that court had received some $3 million in political support from one of the parties in the case. It was of course impossible to know whether the judge who received such largesse was actually affected by it, but, according to the Court, there are certain circumstances where “experience teaches that the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.” According to the Justices, “under a realistic appraisal of psychological tendencies and human weakness,” having a judge participate in a case after receiving millions of dollars worth of support from one of the litigants, “poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.” In sum, a litigant’s constitutional rights are violated when the presiding judge is in the pocket of the other litigant.

There is a man on death row in Texas named Charles Hood. The district attorney who prosecuted Hood had carried on a clandestine sexual relationship with the judge who presided at the trial. The two paramours, each married to someone else at the time, kept the relationship secret from Hood’s lawyers, and from Hood. The state court in Texas refused to address the issue, so Hood’s lawyers asked the Supreme Court to intervene. To borrow from the Court’s own words in the West Virginia case, “under a realistic appraisal of psychological tendencies and human weakness,” when a judge has been sleeping with one of the lawyers, there is a real risk of bias. Apparently, as far as the Supreme Court is concerned, a judge can’t be in a litigant’s pocket, but it’s ok for a judge to be in a lawyer’s pants. The Court declined to hear the Hood case. Justice Stevens was silent.

I'm obviously biased. I represented Khristian Oliver, who was executed last November because Oliver's jurors misunderstood the Bible, and lawyers in my office have represented Charles Hood for many years. That said, there is much about Justice Stevens I admire. But beliefs unaccompanied by actions do not help actual people. For the lawyers who represent society’s powerless, and for their clients, it is not enough for President Obama to nominate a progressive with mere empathy. Unless the next Justice has the courage to act consistently with her convictions, her beliefs are irrelevant.

ten legal changes: number 10

2010-04-12T08:48:00.000-07:00

it's a parlor game to ask constitutional law professors what they would most like to change about the constitution. eliminating the electoral college usually gets the most votes.

the problem with fantasy football, however, is that it is, well, a fantasy. it overlooks the daunting real-life difficulty of amending the constitution.

it occurred to me that what might be more interesting than proposing quixotic constitutional improvements is to imagine changes that (at least arguably) do not require a constitutional amendment. so, for the next several months, that's my project.

here is proposal number 1: eliminate life tenure for federal judges.

now on the one hand, i adore justice stevens and wish he had stuck around for another term. on the other hand, he was appointed by president ford. even if ford had been elected, he would have still be elected more than thirty years ago. there is something deeply unsettling about having judges wield influence for so long.

yet the legal impediment to correcting this problem (if it is a problem) is that article III, section 1 provides that federal judges "shall hold their offices during good behavior." they serve for life unless impeached by the senate, under the senate's power as provided in article I, section 3.

as a result of the life-tenure provision, judges serve too long. the problem is most acute for supreme court justices, because, as the judges with the most power and most prestige, they are the most reluctant to retire. from 1789 until 1970, supreme court justices served, on average, fifteen years. since 1970, they have served, on average, twenty-five years.

it is not that presidents are appointing younger and younger judges; it's that judges are sticking around longer. most of the current justices on the supreme court, for example, were in their fifties when nominated (roberts, 50; stevens, 55; scalia, 50; kennedy, 52 thomas, 43; ginsburg, 60; breyer, 56; alito, 55; sotomayor, 55). with life spans commonly reaching into the 80s, justices who serve until death will have served for longer than a generation.

i'd like for there to be some forty-something year old justices -- i think a youthful perspective can be salutary. but that is less appealing if the forty-year-old nominee will serve for forty years.

the solution: i propose asking judicial nominees at their confirmation hearings whether they are willing to pledge to leave the bench after twenty years. perhaps they could sign a contract agreeing to do so. i am skeptical about whether such a contract would be legally enforceable, but i suspect most nominees who pledge to leave would in fact do so.

i do not think this commitment would violate the constitution. i base that conclusion in part on a line of cases dealing with citizenship. the fourteenth amendment defines citizenship. if one is born in the u.s., he or she is a citizen. yet the supreme court explained in vance v. terrazas that even though congress cannot strip someone of his citizenship, citizens can voluntarily surrender (or renounce) their citizenship.

by analogy, congress could not compel a judicial nominee to accept less than a life term, but a judicial nominee could voluntarily agree to step down after a period of years.

twenty years is enough. i think senators should start asking at confirmation hearings whether supreme court nominees will pledge to resign after two decades of service. if they say no, don't confirm them.

my two predictions relating to the new super collider

2010-03-31T10:55:00.001-07:00

now that the new super collider is operational, i have two predictions:

1 -- the higgs boson will be confirmed by new year's day 2012.

2 -- the miniature black holes created in the collider will not consume the earth, or even any parts of frances or switzerland, or even any scientists or technicians working nearby.

some of the posts on richard dawkins' website are pretty funny.

what year is it?

2010-03-23T13:13:00.000-07:00

i will say this: a hundred and fifty years ago, the lawsuit filed by a bunch of states today challenging the health care legislation would not have been absurd. today is a different matter. and i say that notwithstanding bush v. gore.

those with a high tolerance for pain and embarrassment should not hesitate to read the complaint, which the florida attorney general is apparently proud of.

there is almost no chance this challenge will reach the supreme court. but if it does, the federal government will prevail by a vote of 8-to-1.

three probably unrelated thoughts on the health care bill

2010-03-23T07:22:00.000-07:00

1st -- i'm not saying that opponents of the legislation are bigots. at the same time, it is clear that the obama presidency has somehow made it possible for bigots to be bigots without facing social ostracism. my friend ron turner has a depressing collection of homophobic and racist taunts inspired by the health care bill over at his blog.

2d -- all the talk about legal challenges is preposterous. of course, all it takes to file a lawsuit are the paper and the filing fee. but there is not a non-laughable constitutional argument in support of any of the challenges i have heard about. and the posturing by attorneys general and fringe lawyers is an embarrassment to the profession. this must have been what it felt like to be an oncologist when linus pauling wrote a book about how vitamin c cures cancer.

3d -- speaking of racism and homophobia: the antipathy that i have heard directed toward nancy pelosi for a couple of years now is unquestionably sexist. grandpas can still run companies, but grandmas are supposed to dote on the grandkids and otherwise tend to domestic chores. and i am old enough to know that half of what i read in the paper is wrong or incomplete. that said, even if the nytimes story on nancy pelosi's role in maneuvering the health care legislation is only ten percent accurate, she still deserves the congressional gold medal, the presidential medal of freedom, and simple gratitude from thirty or forty million americans who wouldn't have health insurance but for her tenacity and impressive tactical judgments.

i don't know whether john yoo should go to prison . . .

2010-03-22T10:08:00.000-07:00

i think that is a very hard question. but i think he absolutely should not be given a platform from which he can continue to propagate his abhorrent view of presidential power. the first amendment required that skokie permit the nazis to march. but private institutions do not have to give equal time (or any time) to defenders and enablers of torture.

dalia lithwick has a terrific piece over at slate reporting on what sounds like exactly the kind of chaotic confrontation yoo relishes.

home schooling for the anti-obama-ites

2010-03-14T09:22:00.000-07:00

in searching the web for a comparative religion syllabus (which, by the way, i still have not found), i came across this hilarious post advising parents who were offended by obama's lesson for elementary school students.

you've got to love a blogger who uses onanism. and i bet this guy (i'm betting it's a guy) could write my comparative religion syllabus.

civil rights leaders and same-sex marriage

2010-03-13T09:00:00.000-08:00

i don't know that i would characterize marion berry as a civil rights hero, or even a leader. but he was there, of course. and he is well-known, and at least was a leader, of sorts. so it was fair for npr to pick on him this morning and use his opposition to same-sex marriage to highlight the opposition of many black leaders to same-sex marriage.

if there can be a better example of how religion and religious doctrine can blind someone to basic ideas of equality and fairness, i don't know what it is. the opposition of many blacks to true equality for gays and lesbians is rooted in their churches -- the same place responsible for the civil rights movement itself. irony isn't a strong enough word.

greenhouse on thomas

2010-03-12T09:14:00.000-08:00

linda greenhouse has a very nice piece on today's nytimes website dealing with clarence thomas. she mentions his silence, of course, but the piece is really about thomas's view that the 8th amendment does not protect prisoners from being abused by prison guards.

it's a chilling view, but as greenhouse points out, at least thomas is consistent.

i was a bit surprised by the number of comments on the website that defend thomas. they are significantly outnumbered by posts from the other direction, but there are still quite a few thomas defenders reading the nytimes.

thanks to lou (and to k and linco, of course)

2010-03-10T08:41:00.000-08:00

my brother stuart (bka lou) took better video of katya and lincoln than i did when i spoke at the brazos bookstore a couple of weeks ago. there's no footage of me, just of them, which is the way it should be (although i think that is me you can hear laughing at the very end).

you can watch it here.

the debate over whether "god" requires an upper case G

2010-02-22T12:17:00.000-08:00

my friend meredith duncan and i were discussing how there have been somewhere between 9 and 12 black churches burned in east texas since around the first of the year. yet neither of us has seen any mention in the media, including today's story on cnn, that the churches are in fact black churches.

meredith asked (sarcastically) whether this is because we now live in post-racial america. hah.

what is at least as astonishing as pretending that east texas is not still disturbingly racist is that there are a couple of hundred comments on the cnn website relating to the story. if any of them mentioned race, i missed it. but there is a vigorous debate as to whether, in this christian nation, one is required to write the word god with an upper case g.

(quoting here from dlmcc0202: "God is to be spelled with a capital "G". This is a nation of Christians. You have a right to freedom of religion in this country, but have no right to criticize a Christian for spelling God that way. If you dont like it you can leave this country. We wont miss you i promise.")

thanks to katya, lincoln, and brazos

2010-02-22T11:48:00.000-08:00

on feb 15th, i talked about my recent book at the brazos bookstore, a houston gem. the highlight of the evening occurred a few moments before i spoke, when katya and lincoln introduced me.

owing to my ineptitude as a videographer, i chopped off about half of katya's comments, but i got the tail end, and all of what lincoln had to say.

gays in the military

2010-02-12T14:51:00.000-08:00

nancy rapoport has a blog entry lambasting an oped in the wall street journal, written by a marine, arguing that it's a mistake to allow gays to serve (openly) in the armed forces. the logic of his argument probably means he is also opposed to gays' serving non-openly.

i can't say anything improving on her post, and she, as someone married to a marine, has more credibility that someone with no marines in his family (e.g., me). so just read nancy's piece.

the comments on the wsj website surprised me. obviously there is the predictable homophobia, but the majority of comments are critical of the oped.

thanks to jeff gamso

2010-02-07T10:29:00.000-08:00

jeff gamso, a criminal defense lawyer who also blogs, wrote a touching review of my book, the autobiography of an execution. as i told my wife, one nice review by a colleague and peer outweighs about a thousand negative reviews by people who don't know anything about the work.

the last lines of jeff's review literally made me gasp.

thanks, compadre.

my way is just so arrogant . .

2010-02-07T10:25:00.000-08:00

that if you sing it, i might have to kill you.

this article on the so-called my way murders should not make me laugh. it's not about japan, but it does remind me of bill murray in lost in translation.

are thoughtful people fatter than dolts?

2010-01-28T06:50:00.000-08:00

don't just read the transcript; listen to the entire 7-minute story. the gist of it is that the analytical part of the human brain does not do a very good job of multitasking, so if your brain is busy trying to remember a string of numbers, you will make bad food choices (e.g., you will eat a piece of fat- and sugar-laden cake, over a nice bowl of fresh fruit).

the experiment itself is perhaps not a creative tour de force along the lines of the determination that ants count their steps, but the development and testing of the hypothesis is still pretty damn impressive.

what does not make sense to me is that some of the smartest people i know are thin, while some of the lesser impressive people i know are hefty. i can think of various explanations for this conundrum, but it is nonetheless somewhat perplexing.

i think robert krulwich might have one of the best jobs in america.

thanks to GQ online

2010-01-25T08:58:00.001-08:00

GQ online has a new feature, called the first twenty pages. guess what they do?

so you can read the first twenty pages of my new book, the autobiography of an execution. but the sporting thing to do after you read those pages would be to buy the book and read the rest.

p.s. my grammar is not so good in the interview. so if you are an elementary school teacher, don't read it.

my blog entry at huffington

2010-01-25T05:48:00.000-08:00

i send my immense thanks to amy hertz over at the huffington post for letting me blog on their site about why i wrote my forthcoming book.

who do you believe?

2010-01-24T11:32:00.001-08:00

harry reid, when he says that joe lieberman lied to him? or joe lieberman, who says he didn't?

on a related not, five thirty eight analyzes some data showing that divorce rates are higher in states with bans on same-sex marriages. of course, with so many states in that column, it's hard to slice this data very thinly.

pat robertson and haiti

2010-01-18T14:52:00.001-08:00

not that anyone should pay any attention to anything pat robertson says -- didn't he blame 9/11 on tolerance for gays and lesbians? -- but his attribution of the natural disaster in haiti to haiti's having made a pact with the devil is connected to the end of slavery in haiti.

indiana press has a blog post that discusses something called the bois caiman ceremony, about which the historian david geggus has written. in short, the issue pertains to whether, prior to the commencement of a slave revolt in 1791, the revolutionaries sacrificed a pig in a voodoo ceremony.

there is some dispute as to whether this actually happened. let's give reverend robertson the benefit of the doubt and say it did (assuming this is even what he had in mind when he made his idiotic comment). then, if you strip away the intermediate steps, what you end up with is robertson's saying that the fact that some slaves two centuries ago thought they'd stand a better chance of emancipation if they engaged in animal sacrifice led to god's rewarding those slaves' great great great great great grandchildren with a disaster that kills several hundred thousand.

i suspect robertson would draw a distinction between voodoo sacrifice and, say, old testament sacrifice.

a supposedly fun thing i will definitely never do again

2010-01-18T08:42:00.000-08:00

the title is obviously borrowed from david foster wallace's brilliant essay. (i've added the word "definitely." david wallace left the door open. i am slamming it shut.) he was talking about a cruise. i am talking about running a marathon. which i did yesterday. which i will never do again.

there are several reasons i undertook this project. (a) i know several people who have run a marathon. my dearest friend jon liebman ran new york when he turned fifty. my wonderful colleague and even better friend meredith duncan ran the marathon a few years ago, and told me it was the most exhilarating thing she has ever done besides giving birth to her two terrific boys.

(on a related note, doctors say that kidney stones are the second most excruciating pain human beings regularly suffer -- the gold medal going to child birth. men suffer from kidney stones far more often than women, supposedly to even out the pain distribution among the species. i have never had a kidney stone. katya has had three. what is doubly or triply interesting about this is that we found out she was pregnant when we went to the emergency room with what turned out to be a kidney stone.)

back to our story: a couple of my friends are actually athletes. paul schwartz i think has run under 2:20, and might have even qualified for the olympic trials back when we were younger. i am pretty sure my pal norman stalarow has run under three hours. my friend charles katz, ENT extraordinaire, and one of my best friends since we met in seventh grade -- a lifetime ago -- has run something like 20 marathons, maybe thirty.

oh yeah, my brother steven ran the houston marathon when he was like 16 or 17 years old. he did not break a sweat. i mean that literally.

all the aforementioned, with the possible exception of steven, and maybe meredith, are athletes. and steven was young. and meredith is married to a pro bowl athlete. i have no significant athletic skill. but i have a lot of will, which sometimes bleeds into obduracy, as katya can attest. which brings us to reason (b): i figured that during my 51st year of life, i'd bite off something that i had not done, and that i would not particularly enjoy preparing for. i hate running. "hate" is maybe too strong. i do not like running. so what better activity to train for than a marathon.

i registered the day registration opened. we were in park city. i signed myself up for the marathon, and katya and lincoln up for the 5k. i paid with a credit card, like tying yourself to the mast.

when we got back to texas in august, i started training. in my case, training did not include giving up cigars or bourbon. it meant i ran four times a week, with one of those runs being long. i do not have the literary talent to convey how deeply i detested (and continue to detest the memory of) long runs. i'm not sure even david foster wallace could convey it, and his literary talent was exceeded by no one.

my long runs took place on fridays. the theory behind this is that i could wait until lincoln left for school, and i would not miss time away from katya and lincoln on the weekends. so every friday morning, at around 745, between the middle of august and the first of january, i would put on my ipod and plod around the city for an hour, two hours, three hours, four hours. i love music. i could sit in a rocking chair and listen to music for four hours. the music did not cause me to enjoy the running. it did help me to detest it a little less. a little.

then the injuries came. first my right hamstring. it started with a twinge. then it got so bad i couldn't walk without limping. running was out of the question. katya would give me deep tissue massage, and i would shriek in pain. lincoln enjoyed these moments very much. he would say i sounded like i was drunk. the hamstring healed. then i hurt the left one. then i injured my right achilles tendon. two more weeks off. then i injured my left. i finally knuckled under and went to see johannes, the world's greatest masseuse. he spent 90 minutes working on nothing but my legs, and then announced, "your legs are a mess."

my last long run was right after the first of the year. i ran 18 miles. when i got home katya asked me how i felt. i said, "i feel like i am about to throw up." she said, "yeah. you don't look so good."

by that point, of course, i was more than half way across the english channel. no way would i turn back.

so on saturday night, january 16, year of our lord 2010, katya and lincoln and i checked into the hilton americas hotel, adjacent to the george brown convention center, site of the start and finish of the chevron houston marathon. with around 9000 others (plus 13000 running the half marathon and 7000 or so running the 5K), i lined up on a perfect january morning. the first song on my randomly shuffled ipod was jeff buckley's hallelujah. how's that for karma. the second song was k.d. lang's version of hallelujah. i only have 600 or so songs on my ipod. i unplugged the music at about mile 24.5, b/c there was so much street music and spectator support that i didn't need it. the last song i listened to was defying gravity, by the cast of glee.

for the first 8 miles or so, the marathon and half marathon are along the same course. from my spot in the pack -- i.e., solidly toward the rear -- the crowd never thinned. in past years, when i have run the half marathon, the congestion has been a hassle. this year, everyone was attempting to pass me. the hassle was on them. i hereby apologize. when the half split from the whole, at near the intersection of montrose and main, there was finally plenty of room. i no longer needed to be worried that some speedster -- defined as anyone faster than eleven-minute miles -- would flatten me. i promptly tripped.

for me, the nicest part of the run was probably miles 8-13. partly this was b/c the crowd had thinned. partly b/c this part passed first through the museum and rice univ areas, which are beautiful, and then through west u., which was absolutely packed with spectactors passing out orange slices, water, gatorade, and tissue. two young girls near the corner of auden and university were passing out donut holes. (what a city.) partly b/c i was not yet in agony.

but the agony was not far off.

i don't know who says houston is flat. it's got mountains like park city. the first, the westpark hill, had to have been about a twenty percent grade. the later hills on allen parkway were even steeper.

i had convinced myself that when i hit mile 19, and turned right on woodway, and headed back toward memorial park, thence to downtown, that my adrenalin would kick in, and i would cruise on home. that prediction proved wildly mistaken. the pain began at mile 19, and did not let up. i kept waiting for the so-called runner's high. it never came. i feel seriously misled, betrayed actually.

so i developed a coping strategy. i would set my eyes on someone who was walking, and concentrate on nothing other than catching that person. i was still being passed by all sorts of physiques -- tall, short, thin, very thin, thick, very thick -- yet i remained capable of catching up to people who were walking. i made two vows to myself at mile 19: don't walk, and drink at every station. i violated the second vow. at mile 20, i decided not to drink until mile 22. i just could not bring myself to veer over to the water table. i needed to get under 6 miles to go before i could think of anything else besides finishing.

one important detail i forgot to mention: you know those tiny reflectors in the middle of the street, used to divide the lanes? they stick up maybe 1/4 inch above the pavement? well, at mile 11, i tripped on one and nearly fell. at about mile 15, coming through the galleria area, i nearly tripped on another. both times, i managed not to fall on my keester, but barely. at mile 20, running adjacent to two twenty-something year olds, i tripped for the third time. one young woman wearing pink and looking like she had maybe run a mile said to me, "you know, you need to pick up your feet when you run." i interpreted that as flirting.

i was accustomed to such youthful insouciance. when my brother steven ran the marathon in 1980 or so, he ate a banana at the finish line then headed off to play a pick up basketball game. my brother stuart reminded me of this history.

i saw katya and lincoln a half mile from the finish. that gave me a surge of energy that lasted until just before i saw sharon and tom giordano a quarter mile from the finish, which was enough to get me across the finish. there was a woman inside the george brown holding one banana. she surveyed the hundreds of people in the hall and chose me to offer the banana. she was well-trained.

i found katya and lincoln in the family meeting area. katya looked at me and started laughing. i had salt crystals from dried sweat in my eyelashes and eyebrows, and covering my face and neck.

we came home and i spent an hour in the hot tub, thirty minutes in the steam, then thirty more minutes in the hot tub. then i showered and got in bed. lincoln served me another banana. i sat in the massage chair for two hours while watching the vikings crush the cowboys then the the chargers lose to the jets. i feasted on two buffalo burgers for dinner, drank two beers, and went to sleep at nine.

today, one day later, i actually feel pretty good. i am better able to focus on the support i got from my family, and the support that i and 28,000 other people got from the literally hundreds of volunteers who set up the course, pass out water and apples and pretzels, provide entertainment, clean up our mess, and simply offer an encouraging word to total strangers.

but my strengths are my weaknesses. there are some things i do not forget. i will remember the pain, of the training and of the run itself. it is possible i will indeed be tempted, but i will never do this again.

if you need another reason to send money to haiti

2010-01-15T15:05:00.000-08:00

. . . just look at these before and after photographs, courtesy of google earth.

if you are inclined to donate but have not yet done so,check out bill clinton's oped in yesterday's washington post, which mentions several ways one can give.

more on the reid mishugas

2010-01-12T11:52:00.000-08:00

over at science blogs, ed brayton has an analysis of the harry reid kerfuffle i would find compelling even if i hadn't more or less said what brayton says.

but that's not what caught my eye about the piece. what i like is his observation that harry reid might be too nice to be the majority leader. brayton would prefer a brass knuckles brawler like chuck schumer.

i don't know anything about the senate in recent years, so i don't know which characteristic is preferable, confrontation or conciliation, in the majority leader. but i have been thinking for several long months now -- going all the way back to obama's maddening accommodation of joe lieberman, or, before that, to his selection of rick warren as the invocation speaker at his inaugural -- that obama might be too nice to be an effective president. i don't know whether he'd rather be loved than feared, because i don't know him, but he acts that way. it's a mistake because senators and members of congress are a cross between a seven-year-old brat and a dog of average canine intelligence. on such creatures, you have to inflict pain when the creatures misbehave, or they will misbehave again.

(let me add that i am not a spanking advocate, whether children or dogs are involved. by pain, i do not mean physical pain. i think obama needs to convey that it is not costless to cross or resist him. nearly five hundred years later, the prince remains the most persuasive piece of political advice ever offered. take just one plum committee chairmanship away from a bonehead like joe lieberman, and the boneheads of the world will be more careful next time.)

harry reid a racist? good grief.

2010-01-10T15:17:00.001-08:00

so harry reid offers his opinion that barack obama got elected, despite being black, because he: (a) is light-skinned and (b) doesn't sound black.

and michael steele, the black head of the republican party, says reid is a racist -- which is a little like phyllis schlafly saying gloria steinhem is a misogynist.

you can think that harry reid is right or wrong, or that he shouldn't have said what he did or should have, but the idea that his comment is racist is preposterous. the fact that a black got elected president in the US is widely regarded as momentous and historical. all reid is saying, as i understand him, is that it is less momentous and less historical than one might think. in other words, we should not be complimenting ourselves too loudly on having conquered racism in the US.

reid's point is that obama has characteristics -- and i think there are others besides the two reid identifies -- that negated some (some, not all) of the racist headwinds obama confronted. those racist headwinds are still apparent. has there ever been another president whose remarks to schoolchildren were boycotted by parents who kept their kids home instead of allowing them to hear the president?

if i accuse a prosecutor of striking blacks from the jury of one of my clients, and the prosecutor points to one black juror he accepted, and i say, yeah, but that black is a cop, my observation is not racist; it is offered to explain why the prosecutor would accept a juror notwithstanding the juror's race. reid's analysis is analogous. his comments are not racist; they are the opposite of racist.

whereas steele's comment that reid should resign is just idiotic.

executing the retarded in texas

2010-01-08T09:10:00.001-08:00

renee feltz has a superb piece in the current texas observer that uses the case of daniel plata to suggest that texas has continued to execute the mentally retarded, despite the supreme court's decision in atkins v. virginia, which prohibits the execution of the mentally retarded.

there are a number of reasons for this lawlessness. one of them is the testimony of george denkowski, who testified in nearly thirty cases in texas raising the issue of mental retardation. although he has agreed in a handful of cases that the inmate is in fact retarded, he denies that an inmate is retarded far more often, even in cases where the evidence of retardation -- as in plata -- is overwhelming. this is known as the i know who butters my bread phenomenon.

the article in the observer also has a video clip of my colleague kathryn kase, who has represented plata heroically.

how the universe looked when it was less than one billion years old

2010-01-07T12:38:00.000-08:00

this most recent photograph from the hubble, which combines a recent image with one from six years ago, is breathtaking.

the accompanying press release from nasa provides a helpful explanation.

now what i wonder is: do the people who think it was a waste of money to learn that ants count their steps when they leave home to go find food also think that this is a waste of money? or is exploring the universe different?

my dog is autistic

2010-01-07T12:17:00.000-08:00

our dog franklin -- he's pictured with me over there to the right -- is very sweet. but he is not the brightest bulb in the chandelier. katya and i have discussed this in his presence, as he tries for the upteemth time to dig through the sofa in order to reach the tennis ball underneath it.

after two supremely smart dogs (whitney and winona), and a kid who is smarter than both of us combined, we were due for this. it's not as if he is dumb in an absolute sense -- he is still smarter than the smartest dalmation or irish setter, for example -- but there just seems to be something missing there.

lately i'd been thinking about how he can seem to be very analytical, yet also not learn. for example, he will open the door from the kitchen to the garage, quickly scan the garage to see whether there is anything in the recycle bin he wants, and then either let the door slam shut and remain in the kitchen if there isn't, or absorb the cost of being locked in the garage until we notice him out there if there is. if you watch him do this, you can almost see him conducting the cost-benefit analysis.

and yet, if he tries to lick eggs of lincoln's plate at breakfast today, and i smack him across the snout, and he does it again tomorrow, and i smack him again, he will look at me like we have never had this encounter before.

so today i came across this article, suggesting that a genetic defect can cause canines to exhibit OCD. i'm thinking of performing a little experiment and buying risperidone from my online pharmacy, and seeing if that steepens his learning curve a little.

i will report back with results.

an atheist as the quintessential christian

2010-01-06T12:29:00.000-08:00

my cousin randy friedman, who teaches at SUNY-binghamton is an expert on the philosophy (and maybe the theology, too, if there's a difference) of mordecai kaplan, the inventor of reconstructionist judaism. a few years ago, randy and i were talking about something having something to do with religion, and i went on my usual spiel about how religion is a regressive, divisive force, and randy said that my argument was very kaplan-esque -- which he meant as a compliment.

i recalled that conversation today when i read nathan schneider's supremely interesting piece in the guardian, called theology for atheists. schneider reports that the philosopher Slavoj Žižek says that atheism is the true christianity.

that's provocative, but what's far more interesting is schneider's own suggestion that while religious ideology inspires self sacrifice (here meant literally, as in suicide bombers), secular ideology does not. i wonder about that. it is certainly incorrect historically, as the very existence of the USA establishes (although i suppose some reductionists could collapse republican ideology into some form of protestantism -- but that would be a silly argument). and i don't even think it is true now. most people who enlist in the military are willing to die for a secular ideology. they'd prefer not to -- and that preference may well distinguish them from suicide bombers -- but they are prepared to.

debating the meaning of "tectonic" with adam liptak

2010-01-05T14:25:00.000-08:00

It is dangerous to disagree with Adam Liptak’s legal analysis, but I think I am going to have to. Liptak’s column in today’s New York Times discusses the decision of the American Law Institute to abandon the death penalty.

(The ALI is a supposedly elite group comprised of around 4000 lawyers, judges, and academics. I say “supposedly” because I am a member, and so I think I can say that membership has a lot to do with whom you know. As a federal judge whose name I will not reveal once said, the major qualifications for getting appointed to the federal bench are: (i) having a law license, and (ii) being friends with your U.S. Senator (or being a friend of a friend). The same might be said for membership in the ALI. But I digress.)

Liptak points out that when the death penalty was reinstated by the U.S. Supreme Court in 1976, after a brief four-year hiatus, the framework shared by the death penalty laws that the Court upheld was created by the ALI. Essentially, this framework was designed to insure that the death penalty be reserved for the so-called worst of the worst.

Over time, a deep fissure developed in death penalty law. On the one hand, defendants facing the death penalty were allowed to place before the jury any and all so-called mitigating evidence – that is, evidence that would warrant a life sentence, rather than a death sentence. On the other hand, juries could not be given too much discretion, because the consequences of too much discretion tend to be impermissible discrimination. So states had to channel the jury’s discretion to try to wall off the factors juries were not supposed to take into account, while permitting them to take into account everything else.

In short, death penalty law had at its very heart a fundamental contradiction. Juries were to base their decision on personal characteristics of the defendant so as to identify the worst of the worst. Yet certain personal characteristics (like race and sexual orientation, for example) are irrelevant. Consequently, basing a decision on personal characteristics of the defendant is a recipe for all kinds of impermissible discrimination.

Now, as an academic matter, I am not so sure that there really is a deep contradiction at the core of death penalty jurisprudence, but most people think there is, including the people that count most: the Justices on the Supreme Court. So for the past thirty-four years, the courts have struggled with this intractable problem.

As Liptak points out, Justice Scalia solved the contradiction, or tension, by deciding that states could restrict a jury’s discretion as much as they wanted to. If everyone who kills a cop, for example, automatically gets sentenced to death, then juries will have less opportunity to favor white cop-killers over black cop-killers in dispensing punishment. But Justice Scalia’s solution has a price, because it means that juries also do not get to distinguish between a cop killer with an IQ of 110, and one with an IQ of 70.

Consequently, excepting Justice Scalia, most judges, and most commentators, kept tinkering with the variables, hoping to produce a regime that discriminated, but not unlawfully – that is, a regime that discriminated in a good way by singling out the worst of the worst, while eschewing all forms of invidious discrimination.

Sixteen years ago, in a case from Texas, Justice Blackmun, who had once agreed with Justice Scalia that states could restrict jury discretion any way they wanted to, changed his mind. The Court’s efforts to create a just death penalty system had failed. “From this day forward,” Justice Blackmun famously wrote, “no longer shall I tinker with the machinery of death.”

But his colleagues kept tinkering: ruling out the death penalty for accomplices who neither took a life nor knew that a life would be taken; prohibiting the states from executing the mentally retarded and juveniles; demanding that lawyers representing capital defendants perform robust investigations into their clients’ backgrounds to try to ascertain all the reasons their clients should be spared from death. But the thing about dikes is: they keep springing holes. As Liptak observed, the ALI finally concluded that the death penalty system is irretrievably broken.

I agree with Liptak about all that. Where I think he’s wrong is in his assessment of the ALI’s significance. This is how he puts it:

There were other important death penalty developments last year: the number of death sentences continued to fall, Ohio switched to a single chemical for lethal injections and New Mexico repealed its death penalty entirely. But not one of them was as significant as the institute’s move, which represents a tectonic shift in legal theory.

Liptak quotes three well-known academics – Franklin Zimring, Sam Gross, and Roger Clark – who agree with him and think the ALI’s action is a big deal. In some sense, I suppose, maybe it is. But if the measure of import is impact, I don’t think the ALI decision means much at all.

Of course, my view is shaded by where I work and live, and Texas is an interesting place. In 2009, there were 52 executions in the U.S. 24 of them were in Texas. In 2008, a year where a de facto moratorium existed until June, there were 37 executions nationwide, of which 18 were in Texas. Liptak himself wrote a column not too long ago noting that Texas was on a pace to be carrying out two-thirds of the nation’s executions. The lesson is: If you aren’t changing things in Texas, you aren’t changing things.

So whether the ALI’s shift really is tectonic boils down to the question of whether it will matter in Texas, and I remain deeply doubtful about the prospects of that. The courts in Texas have been brazenly ignoring the U.S. Supreme Court, and even the Constitution itself, for years now. We execute people who are mentally retarded, who are mentally ill, whose lawyers abandon their clients, and whose juries systematically had all people of color removed. These are not subtle constitutional violations; they are egregious, and they are common. Police and prosecutors run amok, defense lawyers sleep, and judges – state and federal both – do nothing about it.

So now the ALI has said that the experiment has failed, that the death penalty regime remains lawless. That is undoubtedly true. But it has been true for a generation. Mr. Liptak’s analysis doesn’t persuade me because I don’t see any reason to believe that the truth will begin to matter in Texas just because the ALI has finally seen it.

I obviously hope that Adam Liptak, and Professors Zimring, Gross, and Clark are all right and that I am wrong. But to accept that the ALI’s change is tectonic, at least down here, requires that you believe that Texas prosecutors and judges care a whit about what a bunch of elitists think. I don’t think they do. The death penalty will undoubtedly die, even here, but not because the members of the ALI have finally acknowledged the obvious.

polar bears in galveston

2010-01-02T10:23:00.000-08:00

katya and lincoln continued their annual tradition of swimming in the gulf of mexico on new year's day. i am confident no one else in galveston besides the two of them swam yesterday. here they are, still in the warmth of the house, steeling themselves for the bracing water:

it was about 45 degrees outside, and a stiff wind was blowing in from the north. in other words, it was cold. here they are about to dive in. do they look happy?

here you can see them, but they are far enough off shore that you cannot see the pain on their faces:

here they are emerging. franklin got out first. smart dog:

then katya and lincoln sprinted for the shore. he won:

i've decided not to post pictures of the two of them recovering in the bath. steam coming up off the bath water made it not such a great photo.

correction to the black eyed pea recipes

2010-01-02T10:06:00.000-08:00

lincoln reminded me that in 2009, i did not make a salad. well, i did make a salad, but it was not my entry into the iron chef competition. my entry was a relish that i spooned onto stoned wheat crackers. the salad was for our actual dinner.

this year, i intended to make a salsa, but katya announced that she was going to make a salsa. and she did. and it was delicious. it was mostly tomatoes, with onion, carrots, and of course b.e. peas.

lincoln also reminded me that his soup last year was not made with chicken broth. it had a water base, and he decided it was too bland. so this year, he made a soup with homemade chicken stock, filled with onions, carrots, and b.e. peas, and topped with a chiffonade of carrot leaves.

because i did not make a salad last year, i decided to make a sort of salad this year. i grilled lettuce leaves, and filled them with a melange of vegetables, featuring b.e. peas, dressed with vinegar and a little soy, topped with b.e. peas and diced tomato.

all three dishes are pictured below:

each of us tasted all three, then voted. i saved the ballots:

as you can see from the ballots below, the bronze medal went to me (two third place votes and one first (thanks, kerm)). katya took silver (one first, one second, and one third (she voted herself third)). lincoln won the gold, with a first place vote and two seconds. he also won the sensitivity award, telling me that even though he cast a third place ballot for my dish, it was still very good.

as they say in college station, wait til 2011.

black eyed peas

2009-12-31T10:16:00.001-08:00

this year, for the second time, katya, lincoln, and i will compete in our own version of iron chef. each of us will use black eyed peas as the centerpiece of a single dish, then we taste them all and vote on the best one. the voting is not by secret ballot. strategic voting cannot be prohibited, but it is frowned upon.

i can't find any authoritative answer to why southerners (is it only southerners?) eat black eyed peas on new years; there seem to be various theories. i don't even like them. but lincoln and katya do not allow me to substitute black beans or pintos.

last year, i made a salad of black eyed peas and grape tomatoes, with bits of chopped dill pickle, on a bed of butter lettuce, dressed with fresh lemon juice and walnut oil. lincoln made soup, using chicken broth as the base, and loading it up with onions, b-e peas, and carrots. it was delicious. i honestly cannot remember what katya made. i think it might have involved hummus. i am pretty sure her dish came in third place, though.

franklin did not like any of the dishes.

this year i plan to make nachos, covering tortilla chips with b-e peas, spooning on a home-made salsa of roasted tomatoes, onions, and garlic, and dusting it with a little shaved reggiano. i'll report on the contender recipes (and the voting, of course) in 2010.

merry new year.

yes, ants count

2009-12-27T15:13:00.000-08:00

in november, npr had a story on an experiment that proves that ants count their steps. the full report, published in science, is not, so far as i can tell, available for free on the web, but there is an interesting short discussion on science blog.

basically, scientists followed ants to their food source, then divided them into three groups. call them short (S), regular (R), and long (L). for the R group, they did nothing. for the L group, they lengthened their legs by attaching pig hairs, essentially having these ants walk on stilts. for the S group, they cut off their legs. (they say this happens to ants all the time in the desert. i don't know. i poked around to see whether PETA or anyone else complained, but i could not find anything.)

so you now have three groups of ants. they all walked to the food with the same number of steps (more or less). now, on the return, the S group did not make it home; the same number of steps that got them to the food left them short of home. the L group walked too far; the same number of steps that got them to the food had them overshoot their home. the R group made it back.

to confirm, the scientists then followed the ants again the next day. listen to the report on NPR or read about it if you are interested. i am interested at the moment in a related, but different topic: namely, is this experiment a waste of time and money?

i think it is elegant, cool, and exciting. but at least one person i respect and admire (i will mention no names at this point, so as not to embarrass her), thinks this is worthless knowledge, in the sense of having no practical application or no application that will help human beings, and it is therefore a waste of taxpayer money.

in reality, this debate is academic, b/c the experiment was carried out by germans, but let's say that were not true, and that it had been carried out by scientists who received funding from public sources. would it be a waste of money? i just don't think so. isn't acquisition of knowledge, regardless of its practical applications, part of the definition of human progress?

in addition to which, as i think bertrand russell said, there is much pleasure to be gained from useless knowledge.

immediate action required

2009-12-24T10:53:00.000-08:00

there is no better indication of the republican party's ineptitude than this: i got a letter, from my good friend michael steele, chairman of the republican national committee, which he sent "to gauge where [i] and other grassroots Republicans stand on the critical issues facing our nation." he said he needed to hear back from me right away. well, in that he (or the RNC, anyway) was paying for the postage, i obliged.

there was so much bold typeface and so many underlined sentences in my friend michael's letter to me, not to mention dozens of elipses and exclamation points and UPPER CASE, that it was hard to figure out what the most important points were, but what hooked me was the invitation, on page four, where my friend michael asked me (ME !) "to play a very important role in our resurgent effort to move our Party forward." i swear i felt like sally field.

i therefore filled out the survey, communicating to michael that, yes, i do "support amnesty for illegal immigrants." i think that some of my own ancestors might have been illegal immigrants. i told mike that i do think the availability of healthcare in the US will increase if the federal government dictates pricing to hospitals. i added a small marginal narrative, which i hope he reads, wherein i told mike that when i had non elective eye surgery a few years ago, costing nearly $30,000, the insurance companies dictated the prices to doctors and hospitals, and i don't think they care more about my welfare than the government. i also mentioned to mike that two-thirds of the bills came from people i never had any contact with, a fact that made it hard for me to police the charges. i told mike i'm elated the government is going to handle this impossible task. oh yeah, i finally told mike that at least i had insurance.

my good friend michael closed by telling me that "[t]he future of the Republican Party is in [my] hands." boy, i hope he's right.

larry mcmurtry

2009-12-23T09:22:00.000-08:00

he's in the middle of writing a three-volume memoir, and today on NPR he said that, in his opinion, he has not written a "great" book. he said he has written some good books, but nothing great. many readers of lonesome dove would disagree with that modest assessment.

just when you think joe lieberman cannot be any more pathetic

2009-12-21T13:36:00.000-08:00

you are proved wrong. unless you believe the nytimes forced krugman to publish this "clarification" based on a complaint by someone besides lieberman.

report on declining death sentences

2009-12-18T11:47:00.001-08:00

the death penalty information center released its annual report today, revealing that, across the u.s., there were fewer new death sentences imposed this year than in any year since the death penalty was reinstated in 1976. the report, and various commentators, attribute the decline to several factors, including attention paid to exonerations as well as the availability of true life without parole as an alternative punishment.

without downplaying the significance of either of those factors, there is another that warrants mention: namely, the much better job trial lawyers are doing in selecting juries, and in putting on effective cases at the punishment phase of the trial. the role of advocacy is reflected in several data, but one i will mention is that while there were nine new death sentences in texas in 2009, there were four cases where prosecutors sought death but the jury returned a life sentence. in other words, in approximately one-third of the cases where prosecutors asked the jury to sentence a defendant to death, the jury refused.

a reinforcing loop develops: when prosecutors do not get death in cases where they ask, they are increasingly reluctant to ask. as they grow increasingly reluctant to ask, defense lawyers are more aggressive in getting them to take death off the table. in 2009, for example, there were 300 or so cases in which prosecutors could have sought death. in the old days, they would have sought it in half of them. not any more.

in our office, john niland, who runs our trial project, and kathryn kase put on nearly 35 trainings for trial lawyers around the state in 2009. the trainings stress jury selection techniques and mitigation investigation. sometimes, all it takes to get death off the table is the prosecutor's understanding that it is going to be hugely expensive to obtain a death sentence. what makes it expensive is that the defense lawyers defend their clients aggressively.

it might be overstating it somewhat to say that john and kathryn are largely responsible for the decline in death sentences in texas, but it might not be.

the best part about living anywhere but connecticut

2009-12-15T09:46:00.000-08:00

is that joe lieberman is not your senator.

so a couple of days ago, after hearing the whining joe lieberman on npr yet again insisting he is not in the pocket of the insurance companies, which is about as believable as tiger woods saying nothing matters to him more than his family, i was going to post something about how detestable lieberman is. now i do not need to. gail collins has pretty much said everything that needs to be said, and (as usual) she has said it perfectly.

there is one additional despicable feature of lieberman's public persona collins does not mention -- namely, that when it comes to grandstanding, lieberman arguably has no equal. before the bodies were cold at fort hood, he was planning to hold hearings.

at least my senators don't pretend they're saints, or that they aren't republicans.

sarah palin wannabes

2009-12-10T12:53:00.000-08:00

i am especially fond of 3d, 4th, and 5th places in this contest of people who are trying to write like sarah palin.

fifty foot waves

2009-12-08T14:08:00.000-08:00

when you fall off a fifty foot wave, you can break an ankle. that's what happened to tom carroll. you can follow the eddie aikau tournament live, but even if you are not interested, you should check out the photos.

death penalty arbitrariness

2009-12-04T07:36:00.000-08:00

by coincidence, on the day after texas executed a man who was almost certainly mentally retarded, but whose claim of mental retardation was never effectively litigated owing to the incompetency of the state habeas lawyer, linda greenhouse has an oped on the nytimes website dealing with what greenhouse calls selective empathy. she is writing about how the supreme court intervenes and grants relief in some cases, while doing nothing (or, worse, taking relief away) in other cases. she calls that phenomenon selective empathy. i would just call it arbitrariness.

in defense of dow and black, part 2

2009-12-03T07:36:00.000-08:00

in this part, i will say more about the claim we tried to raise, as well as the timing.

10. the claim we raised in the petition we filed on november 17th was a batson claim. batson prevents prosecutors from removing people from the jury venire on account of their race. simpson had two blacks on his jury venire. both were removed by prosecutors. simpson was a black man who murdered an elderly white woman. her name was geraldine davidson. she was eighty-four years old. it was an especially gruesome crime. simpson's jury was all white.

11. in june 2005, the supreme court decided a batson case called miller-el, and granted relief to thomas miller-el, a texas death-row inmate. the court said several interesting things in the decision, many of them having to do with how an inmate is permitted to establish that the prosecutor is lying when he or she says that the reasons for striking minority members from the jury venire were not based on race. for example, if a prosecutor says, "i did not strike juror X because he is black; i got rid of him because his cousin is in prison," and the defense thinks the prosecutor is lying, how do you prove it? miller-el addressed issues like that one.

12. in april 2009, the cca permitted a texas death row inmate who had previously raised and lost a batson claim to re-raise it. the cca acted on the basis of the supreme court's decision in miller-el. i (and many other lawyers) believed that the cca's decision would permit several other inmates to relitigate batson claims.

13. to make out a batson claim, you need to know the race of the people on the jury, as well as the race of people whom the prosecutor struck. you cannot get that information from reading the transcript. you can sometimes get it from cards the potential jurors fill out. those cards are in the trial file, but they are not publicly available. in other words, and in short, raising a batson claim involves a significant amount of factual investigation, and that investigation cannot occur without materials contained in the trial file. the trial file is not publicly available. it is held by the inmate's lawyer.

14. we did not get the trial file until november 9 -- eight days before the execution. nor could we have gotten it sooner. the file filled twenty banker's boxes. it was not organized. there was no index. a lawyer in our office spent two entire days organizing the boxes and determining their contents. on november 11, six days before the execution, we found in one of the boxes a folder with pictures of the jurors. that is what enabled us to conclude that the jury was all-white.

15. as this abbreviated history suggests, we literally stumbled onto the batson claim. we had been entirely focused on other issues. in particular, simpson was indisputably mentally ill (and severely so; he had been treated with anti-psychotic medications for six years leading up to his execution) and arguably mentally retarded. simpson first wrote us in may 2009. from the time we learned about the case at that time, until less than a week before the execution, our entire attention was to the mental health and mental retardation dimensions of the case.

16. professor jordan steiker represented us at the show-cause hearing in the cca. i am biased, of course, but i think he did a superb job on our behalf. the texas lawyer report of the proceedings is accurate, if incomplete. as professor steiker told the court, our three choices were: (1) not to file a petition raising the batson claim, (2) to do what we did and file inside the forty-eight hour window, (3) to file what i believed was an incomplete petition raising the batson claim outside the forty-eight hour window. choices (1) and (3) would not have served the client. indeed, i think we would have been derelict if we had done either of those things. my judgment was that choice (2) best served the client.

17. moreover, the cca's rules permitted us to pursue choice (2); those rules simply required that we explain why we were pursuing that choice. in the context of this particular case, the explanation of why we pursued choice (2) shades into an explanation of why the petition was incomplete outside the forty-eight hour window, and that explanation is obvious, i think. see paragraphs 13 and 14, above.

18. the explanation we provided to the court is a somewhat more detailed version of this post (coupled with the part 1 post).

in defense of dow and black, part 1

2009-12-03T06:18:00.000-08:00

i am not hugely interested in getting bogged down in the details of In re David Dow and Katherine Black, No. WR-57,060-03, Court of Criminal Appeals of Texas. (i will get bogged down in details later, in part 2 of my defense.) but i do want to clarify a few factual errors that have crept into news coverage.

1. at approximately 4 o'clock p.m. on tuesday november 17, kate black and i filed a successive habeas petition in the cca, raising a batson claim. the essence of the argument was that, in a previous case, the cca had ruled that the supreme court's decision in miller-el was new law, such that certain inmates who had previously raised batson claims could re-raise them. our argument was that our client, danielle simpson, was similarly situated to the inmate the cca had permitted to relitigate a batson claim, so he (simpson) should be permitted to re-raise the claim as well.

2. the cca has a rule, known as miscellaneous rule 08-101. you can read it here.

3. in september 2007, several lawyers and i represented michael richard, who was executed on september 25, 2007. the case has attracted attention because we asked the cca to stay open late so we could seek a stay of execution based on the decision of the supreme court, announced that very morning, to examine the legality of the lethal injection protocol used in kentucky (a protocol similar to the one used in texas).

4. several media reports, including the the austin american statesman, and the justly famous grits for breakfast, have suggested that rule 08-101 was enacted in response to the richard litigation. that is not correct. richard was executed in september 2007, and as the texas lawyer (among others, including the statesman and grits) has pointed out, the rule was not promulgated until june 2008. the more likely trigger for the rule was the charles hood litigation.

5. on june 18, 2008, hood was scheduled for execution, but by the time the litigation ended, the prison said it did not have enough time to carry out the procedure. hood, not richard, is the likely inspiration for rule 08-101, which the cca announced less than a week after the hood debacle. (the hood case is famous because the trial judge had carried on a clandestine affair with the prosecutor. the cca announced that the secret affair did not warrant giving hood a new trial.)

6. the u.s. court of appeals for the fifth circuit has a similar rule. it is local rule 8.10. it formerly required lawyers representing death row inmates to files motions for stays of execution five days in advance of a scheduled execution. the fifth circuit has modified the rule, and it now requires motions for stays of execution to be filed seven days in advance. the rules are available here.

7. in implementing rule 08-101, the cca expressly stated that its rule was being modeled on the fifth circuit's rule. both rules permit stay motions to be filed inside the announced window -- that is, the fifth circuit allows stay motions to be filed inside the one-week window, and the cca permits stay motions to be filed inside the forty-eight-hour window.

8. i therefore think it is a mischaracterization to say that black and i missed a filing deadline. we did not miss a deadline. we filed a stay motion less than forty-eight hours before an execution. we are allowed to do that under the rule. the rule simply requires that if we do do that, that we also file a statement explaining why we were unable to file the petition sooner -- i.e., outside the forty-eight hour window.

9. we filed a statement explaining our actions. ms. black did not sign the original version, because we thought she did not have to. both our names were on the petition, but i was the one who signed it, so i also signed the explanation of why we were filing the motion twenty-six hours (rather than forty-eight) in advance of the scheduled execution. once the cca indicated to us, in the show-cause order, that it believed ms. black was also required under the rule to sign the statement, she did sign and file a statement, identical to the one i had filed.

in part 2 of my defense, i give more details on the claim we were raising, and why we raised it when we did.

life imitates art again for the accused fort hood killer

2009-11-16T08:01:00.000-08:00

i am a fan of andre dubus III. earlier this year i read his most recent novel, called in the garden of last days. the book imagines the last days of one of the 9/11 hijackers. much of the book is set in a strip club that the hijacker regularly visits. i have noticed an affinity that many religious fundamentalists have for skin clubs and porn -- not just muslims, but christians and jews. this seems meaningful.

in any case, this morning's news reports that nidal hasan "unwound" at strip clubs in the days leading up to the fort hood massacre. either dubus is more of a genius than i realized, or hasan read his book. possibly both.

a most memorable contracts class

2009-10-29T12:24:00.000-07:00

my contracts students, who are smart, hardworking, conscientious, and decent, proved today that they are also hilarious. here they all are, dressed in my uniform. it is a winsome group and, excepting me, of course, a handsome one.

race awareness and racism

2009-10-20T07:09:00.000-07:00

my friend ron turner's blog has a link to an essay by monique fields (of the root). fields wrote about how her four-year-old daughter was already cognizant of people's skin color.

i was happy to see that fields had read an excerpt of a fascinating book by po bronson and ashley merryman called nurture shock. my wife and i have a nine-year-old boy. she and i read nurture shock and had a few moments of self-congratulation (we seemed to be doing a few things right), and a few more moments of sheer terror.

one of the chapters deals with how to educate kids about race. it turns out to be a parenting error to ignore race, because kids can see that people look different from one another. basically, you cannot hide anything from children. education about race starts with that fact.

if they grow up believing that white people shouldn't marry black people, and vice versa, then you've probably made a parenting error.

more willingham stuff

2009-10-19T07:32:00.000-07:00

if you haven't been keeping up with this story, that has proven to have much stronger legs than i would have suspected -- at least everywhere in the u.s. besides texas -- you can pretty much be up to speed by reading: this article in the new yorker by david gann, whose long piece last month remains the most complete discussion of the subject; and this superb summary by steve mills of the chicago tribue, who is easily one of the finest investigative journalists working today.

there is also an interesting political analysis by wayne slater in today's dallas morning news.

willingham's trial lawyer

2009-10-19T07:18:00.001-07:00

governor perry and cameron willingham's trial lawyer (a fellow named david martin) are running neck-and-neck for the title of most obscurantist texan. for the argument that the trial lawyer -- using that term in the loosest possible sense -- deserves the gold, read this hilarious post by richard barbuto .

my last post on obama's peace prize . . .

2009-10-13T08:23:00.000-07:00

if he pulls all the troops out of afghanistan, i will do an about face and say he deserves it. until then, the best line belongs to hitchens: "It would be like giving someone an Oscar in the hope that it would encourage them to make a decent motion picture."

actually, i think the academy might have already done this. but it is still a great line.

turning down alfred nobel

2009-10-12T07:41:00.000-07:00

of the three people i am aware of who have turned down the nobel prize -- pasternak, sartre, and le duc to -- le duc to is the most relevant to obama.

as maureen dowd pointed out in yesterday's nytimes, any peace prize that is awarded to henry kissinger but not gandhi is laughable to begin with. but what is especially interesting about le duc to is that he was the co-winner with kissinger. unlike old henry, however, le duc to said there was no peace in vietnam, so no thank you.