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On Protecting The Innocent, Or, Is There A Death Penalty Compromise? September 24, 2011

I don’t feel very good about this country this morning, and as so many of us are I’m thinking of how Troy Davis was hustled off this mortal coil by the State of Georgia without a lot of thought of what it means to execute the innocent.

And given the choice, I’d rather see us abandon the death penalty altogether, for reasons that must, at this moment, seem self-evident; that said, it’s my suspicion that a lot of states are not going to be in any hurry to abandon their death penalties anytime soon now that they know the Supreme Court will allow the innocent to be murdered.

So what if there was a way to create a compromise that balanced the absolute need to protect the innocent with the feeling among many Americans that, for some crimes, we absolutely have to impose the death penalty?

Considering the circumstances, it’s not going to be an easy subject, but let’s give it a try, and see what we can do.

Let’s Fix An Error Dept.: Apologies are in order, because in our last story we identified The Riverside Church in Manhattan as the place where George Carlin learned to be Catholic – and that could not have been more incorrect. Bad research was the culprit here, and it’s something that we’ll obviously be working to improve. So, once again: sorry, and my bad.

Now if all the states want to limit the imposition of the death penalty to just the guilty (and after what we just saw in Georgia, that’s no longer 100% certain), one way you could do it would be to make it a lot harder to prove guilt – and that’s what we have in mind for today’s proposal.

As you may recall, we convict today with a “burden of proof” that is described as “guilt beyond a reasonable doubt”; as we now know, it is possible to prove guilt, beyond a reasonable doubt, even when there’s a whole lot of reasonable doubt to be found.

In Davis’ case, he was given a chance on appeal to prove his innocence, and despite this conclusion from the Judge hearing the case…

“Ultimately, while Mr. Davis’s new evidence casts some additional, minimal doubt on his conviction, it is largely smoke and mirrors…”

…Davis was still executed.

So the way I would get at this problem would be to change the burden of proof in these cases: if you want to execute someone who is facing an aggravated murder or other capital charge, instead of “guilt beyond a reasonable doubt”, I would require “guilt beyond all doubt”.

If you can’t get to guilt beyond all doubt, but you can prove guilt beyond a reasonable doubt, then you could impose no sentence harsher than life without parole.

If this proposal had been in effect in Davis’ case, there could have been no execution after he argued that he was denied the effective assistance of counsel, because that would have erased “all doubt”; after that he would have had the rest of his life to demonstrate that he was wrongly convicted.

There are going to be a few reasons people might not like this proposal, and I’ll try to address some of them briefly:

Right off the bat, many will complain that because of the new burden of proof it will be virtually impossible to have executions at all; I would tell those folks that if that were to occur…then the system is working. The entire purpose of this plan is to make executions an extraordinarily rare occurrence and to move just about everyone on Death Rows nationwide to a “life without parole” future.

Beyond that, many will say that capital punishment is morally unacceptable under any circumstances, and to those folks I would respond that y’all make a pretty good point…but at the moment there are a lot of Americans who do not hold that moral position – and they have strong feelings too – and unless we can move them to a different point of view, then the best chance we have to prevent the innocent from being executed is to find some sort of compromise like this one.

(Don’t believe me about that “strong feelings” thing? How many of the readers here would be OK with the death penalty for Osama Bin Laden, if he were proved “beyond all doubt” to have been the person behind 9/11?)

A similar line of thought is expressed in the idea that we are seeing more and more voters who do oppose capital punishment, and with a bit of patience, this problem will go away.

After what happened to Troy Davis, I think there’s more urgency now than there was in times past, and that’s because we now see that at least one State will quickly kill a prisoner in order to “clear the case”, suggesting to me that patience is not as good an option as it was before.

Finally, I suspect many will feel that the effort to pass a proposal like this one would distract from the effort to end the death penalty, which is, again, a pretty good argument.

To those folks I would respond that we may get some states to end the death penalty today, but there are a lot of other states that are not going to want to give up the death penalty for some time to come (remember the people who cheered Rick Perry’s execution record?), and if we aren’t going to be able to end the death penalty completely, then I think we have to offer some sort of compromise; a compromise based on the concepts of “killing the innocent isn’t The American Way” or “you could still execute Osama” could appeal to voters who simply won’t give up on the death penalty altogether.

So that’s what we have for you today: even though I personally would prefer that we end the death penalty and just go to life without parole for all these crimes, I don’t think we’re going to achieve that in a lot of states; with that in mind I’m proposing a compromise that would protect the innocent by ending virtually all executions, even as it allows an extraordinarily difficult to reach exception that could satisfy those who absolutely do not want to see the application of the death penalty come to an end.

It’s an imperfect compromise, I’ll admit – but in a big ol’ swath of America that runs from roughly Florida to Idaho, it may be the best compromise we can make right now, and right now, in those places, that might have to be good enough.

Entirely Off The Subject Dept.: We are still trying to get signatures for the petition to change the name of Manhattan’s W 121st St (one block from Seminary Row) to George Carlin Street, and we need your help; you can sign right here. The goal is to reach 10,000 signatures by Monday, so…get to it.

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DADT Update: The Service Chiefs Report, The Republicans Fret April 11, 2011

There’s been a great deal of concern around here about the effort to prepare the US military for the full repeal of “Don’t Ask, Don’t Tell” (DADT), and I’ve had a few words of my own regarding how long the process might take.

There was a hearing before the House Armed Services Committee last Thursday that had all four Services represented; with one exception these were the same Service Chiefs that were testifying last December when the bill to set the repeal process in motion was still a piece of prospective legislation.

At that time there was concern that the “combat arms” of the Marines and the Army were going to be impacted in a negative way by the transition to “open service”; the Commandant of the Marine Corps and the Army’s Chief of Staff were the most outspoken in confirming that such concerns exist within the Pentagon as well.

We now have more information to report—including the increasing desperation of some of our Republican friends—and if you ask me, I think things might be better than we thought.

The Governments of the States Parties to this Constitution on behalf of their peoples declare:

That since wars begin in the minds of men, it is in the minds of men that the defenses of peace must be constructed;

That ignorance of each other’s ways and lives has been a common cause, throughout the history of mankind, of that suspicion and mistrust between the peoples of the world through which their differences have all too often broken into war…

–From the Constitution of the United Nations Educational,
Scientific, And Cultural Organization (UNESCO)

So let me start with the good news; I’ll do that by telling you what I though would happen, compared to what the Service Chiefs are now saying is going to happen:

My guess was that, due to all the process involved, we could be looking at a full year for implementation, and if the Services felt that they had to rotate all the overseas deployed forces back to the USA before they could complete training, you could easily be looking at 18 months.

That, as it turns out, was wildly inaccurate.

The Vice Chief of Staff of the Army, Peter W. Chiarelli, reported Thursday that his Service might be able to report they’re ready to certify by May 15th of this year; to make that happen they are going to train the troops overseas and at home, both at the same time, and they wanted us to know that they’ve already completed much of the “train the trainer” work already. They also expect to certify after about 50% of the training is complete instead of waiting for 100%, and that’s because the leadership believes they’ll know of any implementation problems that are likely to crop up by then.

The most outspoken opponent of the change in December, Marine Commandant General James Amos, says that he’s seeing far fewer problems than he expected, and he believes the move to open service won’t have any serious impact on his force.

Here’s how the Defense Department reported Amos’ testimony:

A department [of Defense] survey last year showed that about 60 percent of Marines in combat units had concerns about the repeal, Amos noted, but those concerns seem to be waning. The general visited with Marines in Afghanistan over Christmas and spoke with their commander this morning on the issue, he said.

“I’m looking specifically for issues that might arise out of Tier 1 and Tier 2 and, frankly, we just haven’t seen it,” Amos said. “There hasn’t been the recalcitrant push back, the anxiety about it” from forces in the field.

Amos said the Marines’ commander told him, “’Quite honestly, they’re focused on the enemy.’”

The Navy says they expect to complete their Tier 3 training (the final phase of training) as soon as the end of June; Chief of Naval Operations Admiral Gary Roughead told the Committee that he foresees no problem achieving a successful transition to open service.

(A quick note to the reader: I have been known to write satirical stories with crazy made-up character names, but the actual name of the actual Admiral who is tasked with leading the Navy into the era of open service is actually…Roughead. Some may consider this to be evidence of Intelligent Design; I continue to disbelieve.)

Air Force Chief of Staff Norton Schwartz, who also seemed to suggest, back in December, that trouble might be waiting on the road ahead, seemed far more confident this week; it looks like the Air Force might have Tier 3 training wrapped up by the July 4th holiday.

The Service Chiefs also announced that those who have been discharged under DADT will be eligible to petition to return to the military.

There is today a mechanism in place within the Defense Department to consider the petitions of those who voluntarily leave the military and wish to reapply; that system looks at what jobs are available, and, if it meets the needs of the Services, a job offer is extended to the applicant. (The individual might not return at the same grade or rank they held when leaving, however, and that would also depend on the military’s interpretation of what best fits military “force structure” requirements.)

At the hearing the Committee members were told that those who were discharged under DADT could reapply under the same rules that exist today for those who leave voluntarily; the same system that’s in place today will “work” those applications.

There was some not unexpected bad news: Republican Members of the House are just so over the top on objecting to this one that it’s ridiculous and funny and maddening and just awful, all at once.

There was begging (“if there was just some way the Service Chiefs could convince the Chairman of the Joint Chiefs not to certify, then we could all be saved” was the gist of that one), and fake expertise (“when I served we were all afraid of ‘em, and I can’t believe today’s troops still aren’t” is the rough outline of how that argument went and California’s Duncan Hunter was an example of one Congressman who fit into that “genre”); there was even an offer to do another survey so we can “do what the troops really want” (I can save y’all the time and trouble: what they really want…is to get the hell out of Afghanistan).

If the Grim Weeper had been in the room, I’m sure he would have had a big ol’ blubbery cry over the tragedy that’s befallen the Nation on this somber occasion—and it’s a good thing he wasn’t, because I have no doubt such a display would have once again caused Tonstant Weader to fwow up, just like that time back at Pooh Corner.

Among the Republicans there was a lot of preoccupation with the potential for men, in combat, in those close, confined, spaces…men who are depending on each other, night and day…to be subject to the advances of other strong, powerful, muscular, men in a variety of manly uniforms—I mean, as far as I can tell, there are Republicans who see this as some kind of eventual “Livin’ La Vida Loca” kind of situation, only, you know, a bit more butch, and I would love to know what in the world they think life aboard a Ballistic Missile Submarine or on a Forward Operating Base in Southeastern Afghanistan is really like?

Oddly enough, the predominantly male Committee didn’t seem as concerned about the possibility of female same-sex relationships impacting military readiness and unit cohesion in a negative way; if anyone has a guess as to why that might be the case I’m sure I’d love to hear it.

The military, to their credit, did a lot of pushing back against the Republicans. For example, at one point there were questions as to whether this would cause an unacceptable number of troops to leave the all-volunteer military. The response: right now the real problem is that as we withdraw from Iraq and troopers come home to a bad economy, too few want to leave.

They also spent a lot of time pointing out that “standards of conduct” already exist to manage sexual contacts and harassing behaviors between opposite-gendered persons, and that those very same rules will be used to manage issues of conduct in a same-sex context.

Risk mitigation is suddenly very important for some Republicans, and they do not want to repeal if there is any risk at all that the move could impact combat readiness or pose a hazard to the force.

That line of logic led to one of the most stupid questions I have ever heard asked in a hearing, ever, in decades of actually paying attention, and it came from Republican Vicky Hartzler (MO-04).

What she was trying to do was to show that the Generals would not want to recommend policies that add to the risk facing the troops. What she had been told was that the future risks of open service were as yet unknown (hard to know today with 100% certainty what the future holds), but that, based on progress made so far, the risks seemed to be low and that mitigations seemed to be in place for currently identified potential problems.

But what she asked the commanding officers of four military services was…wait for it…whether they had ever recommended sending their troops into heightened risk environments?

They actually all kind of seemed a bit stunned by the question—but they kept their poker faces—and then they reminded her that sending troops into combat is actually a bit of a high-risk activity.

The deer then jumped out of the way of the headlights, and the hearing resumed.

Look, folks, I am not passing along any news when I tell you that DADT still scares the loose buttons off a bunch of suits in Washington and that they still want to have this out anyplace they can—but it is news to find out that they are ahead of where they could have been over at the Pentagon, and that all the Service Chiefs do really seem to be on board, at least publicly, and that they are all reporting fewer problems than they expected as this process moves forward.

In a tough week it’s nice to report good news, and I think this qualifies—and if things continue at this pace, we could see certification and full open service before Labor Day.

Now I know we don’t usually give Labor Day presents, and to make it worse, we’re hard to shop for…but if there’s one thing everyone loves to get, it’s a More Perfect Union—and I bet once we try it on, there’s no way it’s going back.

 

On Taking It Back, Or, Wisconsin Recalls, Explained March 14, 2011

News is suddenly moving so fast that it’s becoming hard for me to keep up; that’s why we’re not finishing the story today that we just began Tuesday. You know, the one about Titan Cement suing two North Carolina residents who appear to be doing nothing more than speaking the truth.

Unfortunately, other important news has forced itself to the front of the line, and it’s going to demand that we break schedule, whether we like it or not.

That’s why today we’re going to be talking about Wisconsin, and how workers there are fighting back against the State’s Republican legislators and Governor, who seem to have gone out of their way this past three weeks to govern without the consent of the governed.

It’s kind of chilly today in Wisconsin…but I can assure you, things are heating up fast—and it ain’t because of spring.

“I will tell you this: Any business where two partners don’t trust each other, any business where one party says, ‘You need to do X, Y and Z because I told you,’ is a business that is not only not run well, it is a business that can never be as successful as it can be,”

–Former National Football League Players’ Association executive director DeMaurice Smith

As so often happens, we need a bit of background:

In Wisconsin, a recall involves first, the collection of signatures, then, if you get enough, a recall election.

Once the proper papers have been filed, those who want to recall an elected official have 60 days to gather signatures for a recall petition that equal 25% of the number of votes cast in the prior gubernatorial election in that “political subdivision”.

What that means in English is that if you’re looking to recall a State Senator and the last time a Governor ran, 50,000 votes were cast in that Senator’s District, you need to gather 12,500 signatures in 60 days to force a recall election in that District.

The election is not to ask the question: “Should this officeholder be recalled?”

Instead, the incumbent will run against other candidates, and whoever has the most votes either keeps or takes over the office.

It is possible that multiple candidates will emerge from within the same Party; if that happens a “recall primary” election is held.

A primary would take place four weeks after the signatures are turned in, the recall election itself would be six weeks after, and both elections would be held on a Tuesday; all of this according to Article XIII, Section 12 of the Wisconsin Constitution.

You can’t recall someone until after they’ve been in office for a year, so the Governor can’t be recalled…today…but because the Senate elects half of its Members every two years there are a group of State Senators who can be recalled; they were elected in 2008.

If three Republicans were to be recalled and replaced by Democrats, the State Senate would change from majority Republican to majority Democratic.

If you’ve ever been to Embarrass, Wisconsin (home of The Chair That Grew), you’ve visited Robert Cowles’ 2nd District. (For the record, it’s more or less 100 miles due north of Milwaukee, and there’s some football team that plays in Green Bay that’s also in his District.) He’s been a Senator since 1987, and in ’08 he ran unopposed. His District voted 52-46 for Obama over McCain in ‘08, and chose Bush over Kerry by almost exactly the same margin in ‘04.

I do not have a feel for who might run against him, but I have some calls out to try to get an answer; if I learn more, we’ll add it to the story.

One Senator who might be in trouble is Alberta Darling (so far as I know, she’s unrelated to cricket great Joe Darling), who represents District 8, which is basically Milwaukee’s northern suburbs.

In ‘08 she only won by 1007 votes (of about 100,000 cast).

It’s worth noting, however, that her District cast the most votes for Governor in 2010; as a result her opponents will be required to gather more valid signatures than in any other District (20,343, by one reckoning).

Her opponent last time was Sheldon Wasserman; he’s a former State Representative, an OB/GYN from Milwaukee, and a member of the State’s Medical Examining Board.

(On a side note, it looks as though the Governor might be messing with the Board as well; he refused to allow two recent physician nominees selected by the Board to be seated, and he’s apparently looking to nominate his own people.)

Just as in District 2, this District voted for Obama in ’08, and Bush in ’04.

Sheila Harsdorf, who currently chairs the Senate Committee on State and Federal Relations and Information Technology, was sent to Madison to look after the interests of the State’s westernmost District, “The Fightin’ 10th”, as Sir Rev. Dr. Stephen T. Colbert, DFA, would say.

Even though she thinks State workers are taking too much from the public Treasury…her relationships with the Federal Government are so good that she had no problem taking in $195,000 in Federal farm subsidies over a ten-year period for Beldenville’s Trim-Bel Valley Farms, of which she just happened to be a 50% owner as recently as 2008 (for all I know, she may still be an owner, more current information was unavailable).

This is another one of those Districts that went for Obama in ’08 by about just the same margin as it went for Bush in ’04.

Luther Olsen of the 14th (located about 40 miles or so due north of Madison) is another farm owner; he owns 20% of Waushara’s Riverview Farm; they also happily accepted at least $58,502 of your money and mine, because Olsen, like Sheila Harsdorf, apparently believes that’s a better use of our money than, you know, paying a public school teacher or something.

(Fun Fact: did you know Golda Meir, the former Prime Minister of Israel, used to be a Milwaukee public school teacher?)

Olsen did not face an opponent in ’08…and once again, this District went Obama in ’08, Bush in ’04—although it went about 4 points farther for Bush than for Obama.

And that brings us to Randy Hopper.

This District (the 18th, which most notably includes Oshkosh and Fond Du Lac) is another one of those Republican seats that are considered among the most “gettable”; that’s because just 163 votes separated Hopper and his ’08 opponent, Jessica King.

There’s also this:

“I have a lot of correctional facilities, a couple universities, and a couple of tech schools [in my district]. I have the second largest population of state employees in the state.”

Hopper also chairs the Senate Education Committee…and there’s also a story going around that his wife is telling people that he’s been providing some “private lessons” to his 25-year-old mistress down in Madison; this according to the MAL Contends… blog—and that’s not going to help a family-values candidate.

He owns two radio stations, one an AM-talk Ag Report and Hannity broadcaster, the other an FM station that caters to the “music at work” market; this may allow him to mitigate some of the potentially-about-to-occur bad publicity, and certainly can’t hurt at election time.

Perhaps the most unrepentant Republican during this process has been Glen Grothman of the 20th (which actually, literally, includes Fredonia, and that has to have some deeper meaning…), and he can afford to take a strong stand.

This guy might well be a mortal lock in this District: the Sheboygan area is one of the most reliably Republican-voting regions of the State over the past 30 years, and of all the Senate candidates who faced opposition in ’08, he won with a larger margin of victory than any of ‘em. (He didn’t get 61% of the vote in ‘08…he won by 61% of the vote.)

(Fun Fact #2: Our friends at the Milwaukee Journal Sentinel created these two most excellent voting trend maps for your dining and dancing pleasure; they illustrates how Wisconsin can swing wildly back and forth between Republican and Democratic “electoral domination”.)

Moving on: Mary Lazich, of the 28th, occupies another seat that is going to be tough to get—her District encompasses Milwaukee’s western suburbs (a reliably Republican voting region; in both ’04 and ’08 Republican Presidential candidates won with over 60% of the vote), she did not face an opponent in ’08, and this is another District that will require more than 20,000 signatures to force an election.

“…Fate has been hounding me like a Mormon missionary with an Amway franchise…”

–A. Whitney Brown, appearing on the television show Almost Live!

We’re going to complete today’s “Recall Roundup” with one of the most vulnerable of all the Senators: Dan Kapanke, the Senate Majority Caucus Chair (and a pretty good ”get” if you’re running a recall campaign). He’s from the 32nd, which is all the way across the State from Milwaukee, on the Minnesota border, pretty much in Wisconsin’s southwest corner.

He won by less than 3 points in ’08, his District voted 61%-38% for Obama over McCain…and 53%-46% for Kerry over Bush in ’04, which is the largest margin of any of the 8 Republican Senators currently under recall threat. (Go back and have another look at those voting trend maps, and look at what’s happened to this corner of the State.)

He’s hard right on social issues, but the Farm Bureau loves him.

He is quoted as saying that he expects the signature gathering effort in his District to be successful (only about 15,400 signatures are needed) …and he’s also quoted as having the belief that there is such a thing as a Wisconsin State Senate arrest, despite the presence of an “immunity from arrest” clause in the Wisconsin Constitution.

As of March 8th, 57% of voters in the 32nd would rather have “generic” than Kapanke in a recall election, and they had to close the road outside his house on Friday to keep the hundreds of peaceful protesters gathered there safe.

Now before we close today…we need to offer “big ups” to DavidNYC, who posted a fantastic interactive results spreadsheet at the Swing State Project site; we’ve been referring to it a bunch in this story and you should have a look at it yourself.

And with all that said, that’s today’s “scorecard”, folks, and you can keep track of all the races—or volunteer to help—from one handy location: WisconsinRecall.net…so bookmark the spot, help out any way you can, and let’s start with Wisconsin…and then move on to Ohio and Indiana and Michigan next.

 

On Being A Titan, Part One, Or, See It, Say It, Sue It March 9, 2011

Got a simple little story for you today of a multinational corporation that wants to build a great big cement plant in North Carolina really, really, bad, and the local opposition to what appears to be a corrupt and distorted decision process.

Two local activists in particular have drawn the ire of Titan Cement, the Grecian corporation who seeks to build the plant—and because the Company doesn’t like what the activists have been saying about what the impact of that plant will likely be or how the deal’s going down…they’re suing Kayne Darrell and Dr. David Hill, residents of North Carolina’s New Hanover County, and the two folks who are doing the complaining the Company dislikes the most.

The Company further claims that they were slandered and defamed by the damaging statements that were uttered by the two at a county commissioners’ meeting and that they have lost goodwill and the chance to do business with certain parties as a result of these statements.

But what if everything the Defendants said was not only true…but provably so—and the Company was, maybe…just looking to shut people up by sending teams of lawyers after them?

As I said, it’s a simple story today—but it’s a good one.

We have tomorrow
Bright before us
Like a flame.

Yesterday, a night-gone thing
A sun-down name.

And dawn today
Broad arch above the road we came.
We march!

–From The New Negro, by Alain Locke

So here’s the deal, as it sits today: for a number of years now Titan Cement has been looking to build this great big cement plant near the environmentally sensitive North Carolina coast (part of the site includes 600 acres of “pristine wetlands”), and part of running a cement plant is running cement kilns.

Ya gotta cook limestone, sand, and clay, along with some other ingredients, at very high temperatures (above 2700 degrees F), which sort of fuses everything together; that makes “clinker”, which eventually becomes cement, and that’s why you need giant kilns and, often, pre-heater towers.

You need fuel for those really hot kilns and towers, and our friends at the Army Corps of Engineers advise that, in the kiln fuel game, you can actually kill two birds with one limestone by burning hazardous waste as a substitute for anywhere from 20% to 50% of your original “fuel of choice” (which is often coal).

According to the Corps, you can burn 12 tons of fuel an hour in one kiln, and that means up to six tons of…

byproducts of pharmaceutical, cosmetic, and electronics manufacturers;
solvents and inks used to print newspaper and other publications;
solvents used to recycle paper;
dry-cleaning solvents;
paint thinners and paint residues;
sludge from the petroleum industry;
used motor oil;
agricultural wastes;
and scrap tires.

…might be going into the mix every hour—and as it turns out, that stuff might contain:

…arsenic, cadmium, chromium, lead, nickel, thallium, and zinc.

Now if you’re burning that stuff, it’s either going up the smokestack or out the door as a component of the clinker you just made, and if you live anywhere near this plant, you’re going to be at least a little concerned…and if you have the impression that the people who are trying to get the permits are running a big ol’ hustle to get those permits, you’re going to be even more concerned…and it looks like that’s what’s been going on…and if you put all this together, and you lived in the neighborhood, you might show up at a local County Commissioners’ meeting and say something like this

“From lawsuits for price fixing and court-ordered mine closures of Titan’s Florida plant, to allegations of corruption coming from Raleigh, to emails raising suspicion whether Titan was ever even considering any other location, which would make incentives completely unnecessary, the clouds of corruption grow dark as new controversies emerge almost daily.”

…or this…

“The bottom line is we know from numerous studies that if we build this thing, more children will get sick, a handful of them will die. We also know from the adult studies that more adults will get sick and quite a few more of them are going to die as well. Which ones? Can’t tell you. That makes it difficult, but there will be some.”

…which are the two utterances which are today at legal issue. (Ms Darrell is being sued for the first statement, Dr. Hill, the second.)

The reason we are all gathered here today is to figure out whether either of those statements are truthful or not…because if the statements are truthful, they cannot be either slanderous or defamatory.

So let’s break it all down, one clause at a time:

Ms. Darrell talked about lawsuits for price fixing, and sure enough, CemWeek (“Global Cement Industry. Knowledge”) ran a story in October of ’09 entitled “Nine US cement companies accused of price fixing”, describing a lawsuit filed for price fixing in which Titan was one of the Defendants.

Court-ordered mine closures? Coffey Burlington, attorneys at law, recount their success with a certain case on their website (Sierra Club v. Army Corps of Engineers, Rinker Group, Tarmac America, Florida Rock Industries, APAC-Florida and Miami-Dade Limestone Products Association), which did in fact result in a court-ordered mine closure of Florida facilities operated by Tarmac America, which is a Titan subsidiary.

Allegations of corruption? How about this, reported in January of 2010 by the Wilmington, NC, StarNews:

A corporation that shares an address and president with a Titan America subsidiary bought a Wilmington office building for more than twice its tax value from Democratic fund-raisers under scrutiny by state and federal prosecutors.

To add to this element of the story, the current Governor, Bev Perdue, has asked the State Bureau of Investigation (SBI) to look into Titan’s permitting process, which is something that usually follows allegations, if I recall correctly.

Let’s move on: the folks in the Wilmington, NC, area have a private economic development committee that has negotiated secretly with Titan for some time; the result of that effort was the decision to provide $4.2 million in local government incentives to Titan.

But here’s the thing: if Titan never meant to build anywhere but on that one site, and they still hustled the community for the incentives by using the threat of building somewhere else…well, that’s why Ms. Darrell was talking about:

“…emails raising suspicion whether Titan was ever even considering any other location, which would make incentives completely unnecessary…”

In 2008, Keith Barber, he of Wrightsville Beach Magazine, documented Titan’s multi-decade interest in this particular location:

Titan has made very little effort to conceal the fact it plans to move forward with construction of a cement plant and limestone mining operation on the banks of the Northeast Cape Fear River. In a 2005 interview with Titan CEO Aris Papadopoulos in Cement Americas magazine, Papadopoulos confirmed the Greece-based company had been considering building a plant in Castle Hayne for nearly two decades…

… In addition, even though the permitting process is 18 months to 2 years out, the North Carolina Department of Transportation (NCDOT) Web site reveals that CSX Railroad is already constructing a new spur track at the site of the proposed Carolinas Cement Company.

The Charlotte News & Observer documents the existence of those pesky emails in a January 2010 editorial:

…[Titan lobbyist John] Merritt said he would talk to then-Commerce Secretary Jim Fain. Earlier, he had advised a company spokeswoman on how to respond to questions without raising suspicions that Titan might not qualify for a state grant.

“It is very important that the company not do anything that suggests that this is the only site you are looking at,” Merritt e-mailed. And sure enough, in its application for incentives Titan asserted that it was considering sites elsewhere.

Let’s jump in for just a second and take a look at where we are:

Ms. Darrell made this statement…

“From lawsuits for price fixing and court-ordered mine closures of Titan’s Florida plant, to allegations of corruption coming from Raleigh, to emails raising suspicion whether Titan was ever even considering any other location, which would make incentives completely unnecessary, the clouds of corruption grow dark as new controversies emerge almost daily.”

…and based on what we’ve seen so far, every single word of that statement turns out to be absolutely, provably true:

–There was a price-fixing lawsuit.
–There was a court-ordered mine closure of Titan’s Florida plant.
–It’s alleged that something funny was going on with that office building, and North Carolina’s SBI is investigating.
–We did in fact discover that emails exist raising suspicions as to whether Titan was considering any other location.
–And here we are, talking about one of the new controversies that emerge almost daily.

Today’s tale of legal bullying is running pretty long already, and we still have half of the story to go…so let’s take a break for today, and we’ll pick this up by looking at the statement made by Dr. Hill when we get together next time.

In the meantime, if you’re keeping score…I’m thinking that after Round One, it’s Defendants, 1, Titan, 0.

 

On Starving In Prison, Or, Who Gets Pardons In Florida? December 30, 2010

If you were with us on Christmas Day you heard the story of Betsie Gallardo, who, unless something changes quickly, is going to be intentionally starved to death in a Florida prison after being convicted of spitting on a cop.

In fairness, the State did not decide simply to starve her; instead, the Department of Corrections (DOC) first chose to withhold any further treatment for her inoperable cancer…and then they decided to starve her to death.

Her adopted mother is trying to get her released on humanitarian grounds; the DOC recommended in October that she be allowed to go home and die, the Florida Parole Commission refused.

Governor Charlie Crist chairs the Executive Clemency Board, who could also agree to let her go…and so far, they’ve also refused to take action.

Funny thing is, the Governor and his Board have been more than willing to step in when other Floridians requested pardons and commutations, even in situations that seemed a lot less dire.

Today, we’re going to look at that history—and to be honest, as with many things in the Sunshine State, from the outside…it all looks a bit bizarre.

“Forgiveness, particularly at this time of year, is a very worthwhile message for all of us to be reminded of…”

–Florida Governor Charlie Crist, December 9, 2010

So right off the bat, if you’re 21 years old and you’re having sex with a 15 year-old, you’re looking at some trouble if the police find out. In fact, you’re going to be regarded as a sex offender in the eyes of the law if you’re doing something like that and you get caught.

But as it turns out, in Florida, if you marry the young person in question, you can get a pardon. In fact, it comes up often enough that they’re called “Romeo and Juliet” pardons, and the Executive Clemency Board actually handed out a couple of them in 2009 to John Kemp and Virgil McCranie, who were dating 14 and 15 year-olds when they were originally convicted.

Actually, you don’t even have to marry the minor in question if you can obtain their consent for the underage sexual encounter and demonstrate a reasonable degree of remorse: that happened to Gregory Allen, who was 40 when he was convicted of having sex with a minor.

Describing the events that led to Allen’s conviction, Alex Sink, who was not elected Governor to replace Crist:

“…later expressed frustration with the state’s classification of people as sex offenders even though they may have been convicted of having consensual relations.”

Suzanne Squires killed her own daughter and seriously injured another woman while driving drunk, and just this month the Board commuted 12 years of her 23-year sentence so that she could return home to her family.

18 year-old Jennifer Martin was driving way too fast, and in the eventual crash she killed one of her passengers, and injured another, although she was sober when she did it; she received the second commutation granted by the Board under Crist’s chairmanship when her 16 year sentence for manslaughter by culpable negligence was cut in half in 2009.

The Doors’ Jim Morrison, who is not at risk to die in prison, was posthumously pardoned by the Board just this month for an indecent exposure “event” that took place in 1969. Reached for comment, Morrison suggested that these were strange days indeed when he could be pardoned in death and Betsie Gallardo can’t be pardoned in the final days of her life.

Donald Keehn lent a neighbor $7,000. When she couldn’t repay the debt, he drove by her house and shot up the place—five times.

He was 88 at the time, she was 66, but instead of starving him to death because of his cancer, congestive heart failure and kidney failure, the Board chose to commute half of his five year sentence in 2009 and set him free.

Remember when I suggested that Florida, to the outside observer, seems a bit bizarre?

Well…consider this:

If you date underage girls in ”Chain Gang Charlie’s” Florida you can get a pardon or a commutation. In fact, if you do…they even have a special name for it.

If you kill someone drunk driving—or even driving sober—there might be a commutation for you, too.

Did you ever wag your penis onstage 40 years ago, then die, and now you’re having trouble finding a job because of your besmirched reputation? Governor Crist wants to help—and the Board has his back.

Have you ever committed a series of drive-by shootings, and then developed a series of serious physical problems that make you seek a commutation so that you can go home and die? Florida will find a way to let you out.

On the other hand, if you spit on a cop, and then you develop inoperable cancer…and your name’s Betsie Gallardo…Florida not only won’t let you out of prison to go home and die—they’ll starve you in prison, just to make your death come a bit faster.

Wanna discuss any of this with the Board? Here’s some handy contact information for Crist and the other three members:

Charlie Crist, Governor of Florida
(850) 488-4441
E-mail: charlie.crist@myflorida.com
http://www.flgov.com/contact_governor

Bill McCollum, Attorney General
(850) 414-3300
Click here to e-mail Mr. McCollum
www.myfloridalegal.com/contact

Charles Bronson, Commissioner Florida Department of Agriculture and Consumer Services
(850) 488-3022
commissioner@doacs.state.fl.us
http://www.doacs.state.fl.us/

Alex Sink, Chief Financial Officer Florida Department of Financial Services
(850) 413-3100
Alex.Sink@myfloridacfo.com
http://www.myfloridacfo.com/

I don’t know how many of you remember the show “Daria”, but all of this reminds me of an episode of Sick Sad World—except that in this case the application of outside pressure is having an effect on the DOC…and that means we need to keep the pressure coming.

If we drag them to it, kicking and screaming, I’m sure the State of Florida will be just as compassionate and humane toward Betsie Gallardo as they were to all the other fine folks you read about here today—and with your help we’ll be able to write a happier ending to what has been, so far, a rather unhappy story.

 

On Living With Idiots, Or, An Open Letter To Islam September 9, 2010

Dear Islam,

You know, it seems like every time I write a letter I have to begin by apologizing for not having written in so long, and that’s the case again today.

We only get a few days of real summer up here every year, and I was out having fun at golf tournaments and doing a bit of climbing around the local hills—and you know, I do love doing a bit of nothing at all from time to time—but while I was away, things have gotten even crazier than usual around here…and I’m sorry to say, you’ve been on the pointy end of the crazy stick, which is something that never should have happened.

Things have been so nutty that you’re probably thinking America has something against Islam—in fact, you might be wondering if we have something against our own Constitution.

Well, we don’t, most of us, and I’ll take a few minutes today to help y’all understand just what is going on in this country.

So you’re going to be hearing a lot about this disturbed guy in Florida who thinks that he can save the world by burning Qu’rans on September 11th—and you’re going to be asking yourselves: “Why would America allow anyone to do that?”

Well, the answer’s kind of paradoxical, and it has everything to do with the same Constitution that protects freedom of religion in the first place.

You see, it also protects the concept of freedom of speech…which, in itself, probably requires a bit of an explanation.

Freedom of speech, as you can imagine, isn’t absolutely free (for example, there is the famous “yelling fire in a crowded room” example), but to a far greater extent than you might think, we really are able to say things that would shock most of you not living here.

At the moment, just to illustrate the point, we have all kinds of people suggesting the President is taking the country in the wrong direction, or a secret Muslim (as if that were somehow bad)…or even that he’s some sort of weird mixture of Stalin and Hitler and Satan Himself who was born in Kenya…and every one of them is free to stand on any street corner and hold a sign proclaiming exactly that, just as much as they want.

Matter of fact, those are the same people that are mad at you, Islam, for the moment, even if they know nothing about Islam…and that brings me right to the next thing I need to tell you.

The only reason a lot of Americans are mad at you, Islam…is because there’s an election on, and the only way Republicans can win elections is to try to scare Americans into thinking that the United States will instantly collapse from whatever useful threat they think up—unless enough of us vote Republican.

Now in normal times, Islam, Republicans would be trying to scare us about gay people trying to eat our babies, or something equally stupid, but that hasn’t been working as well as it used to lately—and what they would really like to say this election cycle, they can’t (“Those Jesus-hating liberals elected a nigger and now they’re gonna impregnate your daughters and gay marry your sons!”)…and that leaves you, Islam, as the next most desirable overt target for Republican fear-spreading professionals.

(You and, of course, those “illegal aliens” who are busily beheading people in the Arizona desert every night.)

Now there is no doubt that a portion of our population is entirely ready to jump on this bandwagon with no encouragement at all, and that’s where we get the fools who think having a Qur’an BBQ party somehow makes some kind of sense.

My guess is that about 20% of us are that stupid—and based on our current population, that means about 60,000,000 fools are bumping and stumbling their way across the American landscape on any given day, struggling, as Aimee Mann says, “with the undertaking of simple thought”.

Apparently because it’s just hanging there, many of them sort of slide down and congregate in Florida, and sure enough, a few of them did gather together in that particular State to form into the human blood clot that planned this little 9/11 protest, and that’s how we got to where we are today.

Now I’m sorry that we can’t just bring this to a stop, but we do allow idiots to say their piece in this country, whether it’s a good idea or not…so they do, even if the Government and The Not Blindingly Stupid Among The Population don’t like it…and all I can really tell you by way of consolation is that as soon as Election Day is past, much of this will come to an end—unless it works so well that Republicans keep it up for a few more election cycles, until it fails to work any more.

Anyway, Islam, try not to let it upset you too much, try to keep in mind that this is really about American electoral politics and the desperate need to create fear (which is all the Republicans have left)…and most importantly, try to keep in mind that if good old-fashioned American racial segregation was back in style then no one would even be talking about you—instead, the same people that are on your back today would all be doing their best Dr. Laura impressions 60 or 70 times a day, and they’d go right back to assuming Muslims and Hindus and Sikhs are all the same people, just like they did in happier times.

So that’s what’s been up around here, and I hope to hear from you soon as well—and of course, if you’re in the neighborhood sometime, drop me a note and we’ll go grab a coffee and laugh as the fools walk by.

Your friend,

fake

 

On Avoiding Blame, Part One, Or, Hear No Evil, See No Evil, Drill No Evil. September 2, 2010

I am one of those people who will actually watch those boring, boring, hearings on C-SPAN that most of us flip right on past while watching TV, and this past week I’ve been watching one of the longer events the channel broadcasts…but it’s been far from boring.

The Coast Guard and what used to be the MMS were in Houston looking into what caused the Gulf oil spill and they’re taking testimony from representatives of the involved parties…and let me tell you, this is more than just an accident inquiry—it’s also a warm-up for the lawsuits that are surely going to follow.

We’ve had dozens of trial attorneys basically conducting a deposition process, witnesses who can teach a master course in “plausible unawareability”©, BP employees who have taken the Fifth and refused to testify at all, and, overseeing the entire process, a retired Federal District Court Judge and a Coast Guard Captain who might very well be on the way to trading his eagles for stars one day soon.

Do you really believe all those “we’ll make it right” BP commercials?
If you watch this hearing, that impression may well change.

When I talk on the stage, people often have the impression that I make up things as I go along. That isn’t true. I know a lot of things I want to say, I’m just not sure exactly when I’ll say them.

–From Lenny Bruce’s book How to Talk Dirty and Influence People

So if we’re going to keep this story under any kind of control, we’ll have to compress a lot of detail into some rather broad and sweeping statements, otherwise we’ll be at 3000 words before we know it.

Here’s the scene: a nondescript conference room in Houston is set with a table for the several Board members, who are drawn from across the Federal Government, including the old and exceptionally dysfunctional MMS (the Minerals Management Service), which has sort of morphed into the brand-new Bureau of Ocean Energy Management, Regulation, and Enforcement (the BOEM) and the Coast Guard.

In front of them is another table for the witness and their attorney, and right behind them are three very, very, long tables that are set up for the possibly four dozen attorneys that represent all the “parties of interest” who are involved in the hearing and require a bit of desk space (among that group are lawyers for BP, Transocean, Halliburton, certain individuals involved in the incident, and the Republic of the Marshall Islands, where the now sunken vessel was “flagged”; that Nation is conducting their own investigation). Behind that are rows of “gallery seats” for the interested public.

(You can see the entire thing by visiting the C-SPAN site…but do grab a beverage and some snacks first.)

The way this all works is that the Board begins the process of eliciting information by questioning the witness themselves. Next up is the attorney for the Marshall Islands; the witnesses’ attorney and employer’s attorney then “cross examine”, and then every other lawyer in the room gets a crack at the witness, should they so desire.

Wrangling” all of this from his Co-Chair seat is retired Federal Judge Wayne Andersen; the Coast Guard has a “good cop/bad cop” team on the Board (the Board’s Recorder, Lieutenant Robert Butts, and Co-Chair Captain Hung Nguyen, respectively). Mssrs. David Dykes (the other co-chair) and Jason Matthews, who are representing BOEM on the Board, are among the technical and regulatory experts who are also asking some very pointed questions.

Since many witnesses also represent Halliburton, BP, and Transocean, there is very much a “trial of the century” atmosphere in the air…and everyone is trying to protect their own interests at the expense of the others.

As is common in these situations, the witnesses are busily playing “duck and cover”…and I have been privileged to watch what has essentially been the construction of the “pyramid of denial” by a team of master craftsmen.

Now these folks don’t deny like you or I would deny, instead, they have far more sophisticated techniques of obfuscation that they employ.

The first method: imagine a group of people, sitting in a circle, each pointing a finger at the person to their left.

Later, we saw a new approach: imagine a group of people, sitting in a circle, pointing both fingers at the people sitting to either side of themselves.

Even later, it became a three-dimensional game, as some of those in the circle began pointing either upward or downward…and the most sophisticated of all had personal attorneys available at the witness table to do some of that pointing for them.

Another effective tactic is to never be the person actually in charge of whatever it is someone wants to know about…and if your company operates worldwide, there are lots of places to move from, and to, along with lots of potential “shifting responsibilities”; sure enough, there are witnesses here who seem to be “Johnny-not-on-the-spot” over and over and over again.

The Fifth Amendment’s protection against self-incrimination can also provide a shield that’ll keep you out of the witness chair; that’s why BP engineers Mark Hafle and Brian Morel and Deepwater Horizon’s BP day shift manager Robert Kaluza have not given testimony to the Board.

Now this is not something your normal “mom and pop” denier can typically pull off, and that’s why it appears that at least some of these companies require an entire corps of specialists who don’t actually know anything at all, just so they can appear before courts and investigative boards such as this one, where they either “don’t recall”, or they spend an astonishing amount of time not looking into this “casualty”, as it’s described by those involved in the investigation.

One example that leaps to mind is a certain BP executive who, even though he’s in charge of the “drilling and completions” operations on various BP owned and leased oil rigs in the Gulf of Mexico, reports he has never read any information regarding this accident that BP might have developed since the April 20th event, and has never spoken to a BP investigator to enquire as to whether any “lessons learned” exist that he can apply to the operations he oversees.

There’s so much more to talk about—and apparently we’ll need a Part Two to make that happen—but for today what we need to know is that there has been another week of hearings, that if you watch those hearings you’ll have seen basically a 1/12th scale model of the lawsuits that are already piling up in Louisiana, Texas, and Federal Courts, and that if you watch certain portions of the hearings you can see bombast, tough questions…and the kind of elbow bending and finger pointing that can only lead to severe arthritis later on in life.

Next time, we’ll be talking about “command and control” on the Deepwater Horizon (did you know an oil rig is actually a ship?), about what actually happens down a well, and about why things like “centralizers” and “channeling” matter—a lot.

In the meantime, if you want to get your homework on, all the hearings, in more or less backwards order, can, as we said before, be found at the C-SPAN site…which is why we appreciate them very much.

So either get deeply buried in what will become the legal soap opera of the decade…or run away, quickly, depending on your needs…and when we meet again, we’ll have quite a bit more story to tell.