With a change in administration usually comes a change in the United States Attorney, and the Southern District of New York is no exception.  Rather than leave loose threads, the current holder of the office, Michael Garcia, has chosen to close the door on a sordid chapter of New York history, the Eliot Spitzer scandal.

Don’t, I repeat, Don’t expect this to happen for you.  The SDNY never announces that it will not be prosecuting someone.  They did it for Spitzer.

Newsday and the New York Law Journal are reporting that Spitzer was not to be prosecuted.  This comes from one of the most unique documents I’ve ever seen, a press release issued by Michael J. Garcia to announce a non-prosecution.  Even the title of the release, which invariably names the target of government scrutiny, makes no mention of its subject.  Instead, it demurely says, “Statement of United States Attorney Michael J. Garcia.”  Gee whiz, I wonder what that’s about?

The release offers a few interesting insights about the government’s decision not to pursue Spitzer:

ELIOT SPITZER has acknowledged to this Office that he was a client of, and made payments to, the Emperors Club VIP. Our investigation has shown that on multiple occasions, Mr. SPITZER arranged for women to travel from one state to another state to engage in prostitution. After a thorough investigation, this Office has uncovered no evidence of misuse of public or campaign funds. In addition, we have determined that there is insufficient evidence to bring charges against Mr. SPITZER for any offense relating to the withdrawal of funds for, and his payments to, the Emperors Club VIP.

First, that Spitzer admitted violating the Mann Act, and then the release says absolutely nothing further on the subject.  Now some might argue that the Mann Act is old school, and nobody gets prosecuted for that anymore.  Yeah?  Tell that to ex-Judge/Jester Ronald Tills.  Apparently, word of this benevolence never made it to the Western District of New York.

Next, Spitzer was cleared of using public or campaign funds.  Huh?  No one ever suggested that Spitzer, a multimillionaire by way of his father’s real estate holdings, had his finger in the public till.  This is a red herring.

And finally, that “there is insufficient evidence” as to “any offense relating to the withdrawal of funds for, and his payments to, the Empire Club VIP.”  Now this is where it gets dicey.  He’s not cleared, but he’s cut loose under the “insufficient evidence” claim.  Notably, there’s no mention that it’s insufficient evidence of “money laundering.”  Those words are never mentioned.

But more curious is that money laundering is perhaps the singular easiest crime to prove under these circumstances because it’s simply a matter of following the money.  To state that the evidence is insufficient is bizarre.  Either it was shifted or it wasn’t.  Either he did it or he didn’t.  Insufficient evidence?  Please.

Garcia sums it up in this curious passage:

“In light of the policy of the Department of Justice with respect to prostitution offenses and the longstanding practice of this Office, as well as Mr. SPITZER’s acceptance of responsibility for his conduct, we have concluded that the public interest would not be further advanced by filing criminal charges in this matter.”

Had this been merely an issue of prostitution, perhaps this statement wouldn’t smell so disingenuous.  But the prostitution angle was only the obvious, most sordid, part of the problem.  So many other aspects of this matter are common fodder for the government, and result in a prosecution as predictably as the sun rises each morning.  As for Spitzer’s “acceptance of responsibility,” since when does the government mind kicking a man when he’s down?  Hey, that’s what they do best.  They have so much experience at it.

My issue isn’t with the government’s handling of this matter.  Giving Spitzer a pass on this one doesn’t offend my sensibilities, and seems a fine exercise of discretion.  My issue is that no one else will ever be the beneficiary of such kindness from the Southern District, not only getting a free ride on the admitted Mann Act violation if not the laundering, but their very own press release to announce a non-prosecution. 

If only this was the way it worked for everybody.

Scott Henson at Grits for Breakfast posts about an experience he endured today.  Scott says, “I hope readers will excuse this self-indulgent anecdote.”  I think it’s one of the finest posts I’ve ever read.

It’s about Scott, walking down the street of Austin with his granddaughter holding his finger, being confronted by the police because of his race.  For all the discussion and argument about what the police can or should do, this is as real a story as it gets.

Please go read Scott’s post.

The New York Times reports a truly bizarre tale in the case of Kareem Bellamy, who was released by Judge Joel Blumenfeld in Queens Supreme after a tape of another man confessing to the murder for which Bellamy convicted set him free.  The problem is that the tape is a fraud, as everyone now concedes.

Roughly four months ago, a judge vacated Mr. Bellamy’s conviction after the defense produced an audiotape in which another man confessed to the crime. In mid-August, the judge, Justice Joel L. Blumenfeld, released Mr. Bellamy on bail, pending a new trial.

But the informant who supplied the tape has since told the authorities that he staged the recording to “create this false evidence because I was paid thousands of dollars by the attorneys for Kareem Bellamy.” Mr. Bellamy’s lawyers acknowledged in court on Friday that the tape was fraudulent, but said they did not know it was fake when they received it.

Bellamy’s lawyer, Thomas Hoffman, together with a team from Cravath, Swaine & Moore, deny that they paid anyone to fabricate a tape.  But Hoffman explains that they didn’t even know about the existence of Michael Green, who claims his friend, Levon Melvin, supposedly confessed to the murder, until Green came to them.

In an interview after the hearing, Mr. Hoffman denied that he paid Mr. Green to create the tape. In fact, Mr. Hoffman said, the defense team did not know who Mr. Green was until he went to one of Mr. Hoffman’s private investigators and said that a friend, Mr. Melvin, confessed to the murder.

The prosecution never verified the tape when it first came to light because Melvin was a suspect in a murder.

Prosecutors have always been skeptical of the tape, a spokesman for the district attorney’s office said. They did not try to verify it before the murder conviction was vacated because the tape had made Mr. Melvin a suspect in the murder, the spokesman said.

But after Bellamy was freed based on the tape, Melvin found out from the New York Law Journal that he was supposedly the person who confessed to the murder.  He wasn’t pleased.

After Justice Blumenfeld vacated the conviction, Mr. Melvin learned from an article in The New York Law Journal that he had been mentioned as the confessed killer, prosecutors said. His lawyer contacted the district attorney’s office, prosecutors said, and said that Mr. Melvin had not killed Mr. Abbott and that he had never made a confession.

So what to do with this mess now?  With the prosecution screaming bloody murder, Judge Blumenfeld held firm in not resorting to the knee-jerk reaction of blaming the defendant, Bellamy, for whatever went on here.  In response to ADA Brad A. Leventhal’s demands that he reinstate the verdict and send Bellamy back to prison, the judge responded:

“No fraud has been proven yet,” Justice Blumenfeld said. “We haven’t had a hearing.”

And with certainty about who they want to get, as opposed to who engaged in wrongdoing, the prosecution picked its side.

Mr. Leventhal said the district attorney’s office planned to give Mr. Green immunity for testifying that he had fabricated the tape. He could have faced perjury charges.

Apparently, Leventhal has decided that he would much rather blame Hoffman and the defense, relying upon Green’s claims that he was paid thousands to fabricate a tape, then consider that Green pulled off a scam on the bunch of them.

While it’s possible that Green is telling the truth (at least now), it’s certainly not the likely explanation for this scenario.  Odd that Leventhal would prefer to side with Green over Hoffman and Cravath.  And maybe Bellamy has something to say about this?

And of course, none of this does much to answer the question of what to do about Kareem Bellamy, whose conviction was vacated and released based upon bad evidence.  But if people can be convicted and remain imprisoned on bad evidence, as a product of waiver or procedural defects, it will be interesting to see whether this will be a two-way street.

For a while, it appeared that Avvo was doing so well.  It made efforts to address many of the criticisms levied its way, particularly the taint faced by younger lawyers who were made to look either incompetent or questionable because they couldn’t produce the types of credentials that only come with time.  It beat the old-timer, Martindale-Hubbell, to the internet punch big time.  Avvo was definitely on the road.  Or so I thought.

Yesterday, Avvo sent out notice of yet another paradigm shift in its business plan.  I described the last one, Avvo Answers, as:

These are answers by lawyers to questions asked by potential clients.  This is awful.  Beyond the fact that the questions don’t provide sufficient information to formulate a meaningful answer, it is dangerous, seriously dangerous, to provide generic, sometimes erroneous, answers about complex legal issues.  The lawyers who contribute to this feature get the benefit of self-promotion, but do so at the expense accuracy and credibility.

And some of my best lawyer friends decided to play this game.  From what I hear, it hasn’t panned out too well for them.  The people who want free legal advice don’t want to pay good money to retain counsel.  Duh.

But Avvo’s raison d’être was to provide a public service, to let the legal services consumer have a place where they could find legitimate information about lawyers in order to make a reasoned decision.  This, apparently, has not proven a sufficient business plan, meaning that Avvo needs a new plan.  Here it is:

We are about to take our first step towards offering advertising opportunities for attorneys on Avvo. At the end of this week, if you visit designated pages on the site, such as the attorney search results or profile pages, you’ll see featured attorney listings like the one below.

Over the next couple of months, we’ll be testing different designs and placements throughout the site in order to best optimize potential leads for attorneys like you. Right now, only claimed lawyers will be featured randomly in our advertising listings. Also, attorneys who have contributed by answering questions in Avvo Answers or who have submitted a how-to Legal Guide will be featured more often than non-contributing lawyers.

Do you have any feedback? If so, we would love to hear your thoughts on the new featured listings and any questions you may have regarding advertising opportunities on Avvo. Take a quick survey (the first 250 respondents will receive a $500 advertising credit upon completion) or e-mail your feedback or questions–we’ll respond promptly.

So much for legitimacy, to the extent it existed before.  Sure, many doubted that their gimmick, a single numerical rating, provided any measure of meaning or reliability.  After all, what distinguishes the lawyer who receives a 6.2 rating from the one who gets a 6.7?  The number was silly, and any consumer of legal services who ultimately selected a lawyer because of a .5 difference in the rating was just plain goofy.  We knew it.  Did they?

But now that Avvo has decided to abandon its claim of providing any legitimate insight to consumers, in favor of selling ad space to lawyers like all the other websites of the same ilk, it’s just another of the many versions of the Yellow Pages online.  To the extent that it’s purportedly honest rating system deserved any credence at all, that’s now shot to hell.  Now that Avvo lets money dictate who gets featured, and hence put in front of consumer eyeballs, the credibility of their ratings ceases to exist. 

No doubt, Avvo will contend that its rating are still legitimate, untainted by cashflow.  But it no longer matters.  The point of the service, to the extent it ever had a point, was that all lawyers had an equal shot at being discovered by consumers, who would then be capable of ascertaining their worthiness as assessed by Avvo.  That’s now a footnote to their cash and carry promotional scheme.  

Every business (and Avvo is a business) needs a way to pay the rent.  Apparently, the original business plan didn’t work, or at least not well enough.  So Avvo slid down the slope of disrepute, ledge by ledge.  It’s now hit the bottom.  Good night, Mark, Paul and all my other Avvo buddies. 

In the aftermath of an election that has certainly taken its toll on logic, rhetoric and American tolerance, Jim Lindgrin at Volokh Conspiracy argues that this election was the most corrupt in his lifetime.  He’s been around a while, so that’s saying something.  After noting that the Democrats are likely to make some changes in our institutions, he notes:

What we are unlikely to see over the next four years is progress on serious defects [citing to a New York Post article] in the press and the electoral process that this election revealed.

It is ironic that in 2008 we probably have two of the most honest and decent men running for president that we have had in a long time, and yet this has easily been the most corrupt election in my lifetime.

Essentially, Jim’s focus is on two aspects that have received much Republican attention, the ACORN voter registration scandal and the collection of illegal campaign contributions.  The third problem raised is the complaint that the mainstream media is controlled by liberals.

Last, the press’s performance in 2008 has been appalling. Unfortunately, we have a mediated democracy, mediated by the press. Until the newsrooms are integrated politically, it is difficult for citizens to get the information they need to make informed decisions.

At the moment, this all smacks of sour grapes.  It smells of a conservative effort at payback for the fiasco following the 2000 election, where hanging chads and a Supreme Court decision put the legitimacy of George W. Bush’s presidency in question.  So the effort this time around is to do the same to Barack Obama, though it’s got little traction since there is no doubt as to the legitimacy of his victory.  Indeed, the new argument by Orin Kerr is whether his 7 percent margin constitutes a “mandate”.

It’s impossible to quantify corruption, particularly when it’s entirely theoretical, so that a claim that this is the most corrupt election makes sense.  Many of Lindgrin’s fellow conspirators have already doubted his assessment.  The unfortunate truth is that there have always been claims of corruption during presidential campaigns, making it as American as apple pie.  Still, it isn’t a good thing, so Lindgrin’s point, that these are matters to be addressed and “fixed” in the interim, remains valid, even if this election wasn’t as corrupt as others.

Not that the next President won’t have plenty on his hands when he takes office, but the federal government has plenty of arms and legs to handle other matters as the President spends his time thinking hard about the biggest issues.  As holes reveal themselves, there’s no reason why others in lesser agencies in Washington can’t spend some time filling them.  The next four years will be a particularly good time to do so, since the validity of the election of Barack Obama will never be seriously questioned by any beyond the hardcore lunatic fringe.

But there’s one aspect of “corruption” noted by Lindgrin that will never be subject to a “fix”.  The media, for which Lindgrin cites to a New York Post article to prove that it was really bad.  Now Lindgrin teaches at Northwestern, so he might not be aware of this, but the New York Post is not exactly a respected source of news in New York.  It’s a kooky, funny, hard right-wing tabloid.  Fun to read on the train ride home, but not to be taken seriously.

America has developed a two-path media, the mainstream media which is derided as the eastern liberal elite because they are weighed down by thought and research, and Fox News, which is fair and balanced as long as you believe in political alien abductions.  On the night of the election, Sean Hannity spewed some of his harshest vitriol at the next President of the United States.  He has a right to do so.  He has no right to demand that the rest of the media adopt his bile.

The fact that the mainstream media has heard and seen what Lindgrin hears and sees doesn’t require it to become their focus.  Perhaps the best answer is that any bias, and I have no doubt that there is bias whenever someone has to pick between reporting about competing views of reality, is one that the media comes by honestly.  They hear the claims and arguments, and make their decision on what and how to report.

Lindgrin sees this as a defect in the press, because there aren’t enough of his kind in the newsroom.  Neither side has the right, or the ability, to ram their positions down the media’s throat, forcing them to report news to favor their views.  To the extent that the mainstream media doesn’t reflect right wing views is the natural by-product of their experience. 

Even if a new gang in Washington fixes the problems that arose this time around, like voter registration fraud or campaign contribution tracking, not to mention the wealth of more localized issues like telling blacks the wrong day to vote or Hispanics that they will be arrested if they show up at the polls, there will be new problems four years from now.  The stakes are too high for some to allow democracy to proceed without a little help, and they will find ways, whether old or new, to try to game the system.  It’s the American way.

There is, however, one issue that everyone should agree is unacceptable, though I assume that even this would raise dispute.  Every vote should be counted.  It is intolerable that new-fangled voting machines have problems tabulating votes.  It is intolerable that states are rewriting laws to prevent lawful voters from casting their ballots.  It is intolerable that ballots are constructed in a manner that confuses any voter. 

When we engage in the next campaign for the presidency, there will be someone playing “dirty tricks” somewhere, and there will be others screaming fraud and corruption.  But in the end, this is what democracy produces, no more or less “corrupt” than demanding that voters have a clue why they vote the way they do.  If we can at least assure every voter the right to cast a ballot, though, we’ve accomplished something.

There are many sad, worthy people who suffer from grave injustice and lack the wherewithal to fight it.  But none so worthy as the once mighty, now fallen, Bernie.  Forget those poor men, like Troy Davis, who might be executed despite doubt of their guilt.  Worry about those who have served us faithfully, almost achieving greatness as a National Czar, before hitting the skids.

Newsday announces that a party has been planned to raise money for Bernie’s defense.

Friends of Bernard Kerik, the former New York City police commissioner, are trying to raise funds to help pay his legal defense bills.

Kerik’s friends plan to hold a fundraising party Dec. 1 at a banquet hall in his hometown of Paterson, N.J. Organizers are asking for a minimum donation of $75 per ticket.

Coordinator Anthony Modaffari says there has been an “overwhelming outpouring from the law-enforcement community seeking to assist Kerik.”

Rumor has it that cops are selling their hollow-point bullets on the street to raise cash for Bernie.  They love him that much.  In case you’re considering something more substantial, Bernie needs about $1 million to cover the cost of his trial.  I don’t know if that includes lunch and limosine transportation to and from court.

But if Bernie needs money so desperately, and doesn’t want to sell off his most cherished remaining assets (like the nominating letter for Homeland Security Honcho), why not just ask his old pal Rudy Giuliani for some loot?  It’s not like Rudy isn’t making a bundle off his influence.

Kerik’s legal troubles proved a troublesome albatross for Giuliani when the former mayor mounted his Republican presidential bid. The other GOP contenders at the time – former Massachusetts Gov. Mitt Romney and Sen. John McCain (R-Ariz.) – strongly questioned Giuliani’s judgment for his relationship and continuing loyalty to Kerik.

Giuliani – dogged by questions about Kerik, questions about shifting of mayoral security expenses for visits to Judith Nathan, with whom he then was having an extramarital affair, and his stances on abortion and illegal immigration – ended his presidential campaign in late January after finishing third in the Florida primary.

But that’s all water under the bridge now, since Rudy’s not even on the political bus anymore, no less driving.  Of course, if Bernie could just give Rudy a call at Bracewell & Giuliani, or Giuliani Partners, no doubt he would have before demeaning himself in such a tawdry, public way.

So if you love justice and care for your fellow man, please give to Bernie Kerik.  Give it to him long and hard.  Show Bernie, and dearest friend Rudy, the same compassion that they showed the rest of us. 

Update:  This came in via Jason at The Modernist, an interview by VBS.TV of Bernie on how he feels about being on the south side of the legal system.  Regardless of how you feel (or care) about Bernie, this is worth it just to appreciate how those whose lives were spent putting others under the gun feel when it’s their turn to find out what being a defendant really means.

Much has changed in the past few hours, but the next few months will see just how much.  Notwithstanding the hyperbole that characterizes campaigns, the more thoughtful have wondered whether Barack Obama will be much more centrist than arguments to the contrary would suggest.

As the task of putting together the staff of a new administration begins, one question looms large for those of us on the criminal defense side of the courtroom.  We love our country just like our adversaries.  We believe in the Constitution, often to a fault.  We want the best for the American people.

Will there be a seat for us at the table?

Over the past generation, discussion of crime and constitutional rights has ranged from tough to tougher.  There has been no prominent voice suggesting that we have gone too far, have trampled rights under the weight of mindless platitudes and knee-jerk jingoism.  The fervor with which politicians of all stripes have claimed support for the law-abiding over the lawless, knowing full well that this was never the real division, has frozen our voices out of the conversation amongst decision-makers.

Has time come for a more reasoned, rational conversation?

After eight years of a Republican administration, we’ve found it convenient to base our explanation for the Department of Justice’s harshness on extreme right wing politics.  But in the next administration, that explanation won’t be available to us anymore.  So will we need it?

It is hard to imagine that the next attorney general will be the reincarnation of Ramsey Clark, or that much of anyone would want such a thing.  But a more balanced approach to law and order, one that stopped using the leverage of the entire federal government to beat the individual into submission, wouldn’t be so bad.  Rather than the black and white vision of crime that has prevailed, a more proportional approach would be a nice change of pace.

Sure, it would require many Americans to do something that they haven’t done in many years: Think.  Granted, there is always the possibility that they could hurt themselves, spraining that unused muscle by the sudden effort to flex it.  But with the tenacity that characterizes the American spirit, they could push through the pain to arrive at the realization that balance and thought are good things.

There are many, many people amongst the criminal defense bar who have the skills and desire to help this country in a broad variety of capacities.  We possess attributes that would help to achieve fairness and balance.  We are every bit as much of the American spirit as those who slam the prison doors shut.  We don’t expect to have the loudest voice in the discussion.  Just a voice.  Just a chance to add another perspective to thoughts about what our future should bring.

In the past, Democrats has been nothing more than Republican-lite on the issue of crime and punishment, civil rights and personal freedom.  Perhaps America is ready for better this time.  Let’s see if President-Elect Obama can find a place at his table for someone who has been relegated to sitting at the table farthest away from the jury.

While support for presidential candidates varied, I have never been prouder to be a part of the blawgosphere based upon its reaction to the election of our 44th President, Barack Obama. 

The reaction has been uplifting, in the belief that regardless of who, and how strongly, one thought would make a better president, so many have put that aside and noted two critically important things:  That we have broken a barrier by electing a black man to be President, not because he is black but because we believe that he is the right man for the job, and that we will now go beyond partisanship to work together to overcome our nation’s problems.

Surveying the blawgosphere this morning has made my appreciate the good will and broad-mindedness of my brothers and sisters, regardless of our political views.  Consider David Giacalone at f/k/a, who succinctly writes, “for choosing hope over fear, unity over division, and our values over our resentments.”  And Dan Hull at What How About Client?, who voted for John McCain, states that “America is built to last.”

But the win for Obama, our first black commander-in-chief, is a great moment for the United States–that aggressive young country which could never square ideals with reality. Let time put my reservations about President-elect Obama to rest. Everybody won.

One of the most moving statements comes from Mark Draughn at WindyPundit, a libertarian through and through, who can still appreciate the good this vote brings:

Barack Obama is going to piss me off in all kinds of ways over the next four to eight years, but now, in this time of dreams between the election and the inauguration, I’m enjoying the fact that the United States of America is going to have a black president.

. . . we now know how the story of American racism ends: The racists get their asses kicked.

While such generosity of spirit was not universal, even Above the Law made space for this news, despite its lack of impact on associate layoffs and private personal encounters. 

The lawprofs reaction ranged from the exuberant, Marc John Randazza at The Legal Satyricon, to the reluctantly positive Ilya Somin and David Bernstein, and the gracious, Orin Kerr and Eugene Volokh at his Conspiracy.

The earlier arguments over who would be more willing and adept at reaching “across the aisle” are now past, and have shifted from the candidates to us, the citizens.  America has a new President.  Will we put aside the anger, sniping and nit-picking that has characterized politics and polarized Americans? 

If our goal is to overcome the problems facing our country, perhaps we can continue to debate policies and appointments as vigorously as before, but without the overtone of hatred and anger that permeated the discussions.  We will not, and should not, agree on everything, indeed most things.  But we can do far better in raising the tone of discourse.

Moving forward, there are a few things that we should all be able to agree upon.  Barack Obama is a smart, well-educated man of good will.  Barack Obama has inherited a nation with substantial problems for which there is no magic bullet.  Barack Obama will be compelled to make choices in his approach to curing our problems with which many will disagree, but choices must be made and there is no choice with which everyone can agree.  Whether or not you agree with the choices, Barack Obama will make his choices in what he believes to be the best interest of America.

The election is over.  The American public has spoken.  Let us hope that they have spoken well, and do what we can to contribute to the best outcome for everyone. 

And to my friends in the blawgosphere, regardless of your politics, thank you for seeing the positive and demonstrating that this is a place for the thoughtful and concerned.  The blawgosphere has done itself proud today.

Update:  And from my buddy, St. John’s Lawprof John Q. Barrett, steward of the Jackson List, this passage from FDR’s 1939 post election speech:

With the direct control of the free choosing of public servants by a free electorate, the Constitution has proved that this type of government cannot long remain in the hands of those who seek personal aggrandizement for selfish ends, whether they act as individuals, as classes or as groups.   It is therefore in the spirit of our system that our elections are positive in their mandate, rather than passive in their acquiescence.  Many other nations envy us the enthusiasm, the attacks, the wild over-statements, the falsehood intermingled gaily with the truth, that marks our general elections, because they are promptly followed by acquiescence in the result and a return to calmer waters as soon as the ballots are counted

Amen.

The trial of Alaska Senator Ted Stevens was a mess from the outset, but aside from rampant prosecutorial misconduct issues, who would have thunk that his right to a trial by jury would have a horse racing story attached? 

As the Anchorage Daily News explains,

Juror No. 4 in Sen. Ted Stevens’ federal corruption trial, otherwise known as Marian Hinnant, didn’t leave to attend her father’s funeral in California, as she told the judge at the time.

Instead, Hinnant had a plane ticket to see the Breeders’ Cup at Santa Anita Park outside Los Angeles and didn’t want to miss it, she told the judge today when he ordered her to court to find out why she’d left town and lost contact with him, forcing him to replace her just hours before the jury found Stevens guilty last week.

“I just wanted to go to the Breeders’ Cup,” she told reporters outside the courthouse in a rambling and incoherent interview.

Why should we assume, just because us lawyers are all fascinated by our own doings, and court stuff, and politics, and criminal law issues, that jurors care too?  Sometimes, the only thing going their minds is, “how do I get out of here and down to Santa Anita?”

Had there been 11 votes to convicted on day 1, my bet is that Hinnant would have made the 12th vote.  Convict?  Same deal.  Not that she didn’t care at all about her responsibility as a juror, but that Santa Anita was calling and, well, she cared more about the ponies.  Hey, jurors have real lives too, ya know.

While Hinnant’s secret concern for horse racing might be disturbing enough, and her premature announcement of her father’s death might be disconcerting, her explanation to the court takes the joke to a new, far deeper, level.

“She apologizes to the court. In fact, her father did not die,” Kramer said. “The story about her father was just one that popped into her head.”

Hinnant cut in, however, and in a thick drawl gave a rambling, incoherent and completely baffling monologue about her former employers in the horse-racing industry in Kentucky. She mentioned drugs, wiretaps and horse racing but made little sense.

“I’m not the one who was selling the drugs; I’m not the one who was doing the drugs,” she said, a comment that baffled nearly everyone in the courtroom.

She said she felt a bit guilty about leaving behind her responsibilities but that she really wanted to attend the Breeders’ Cup.

For those of us who profess to believe in the merit of voir dire, note that she made it through the “penetrating” selection process of federal court, past two groups of lawyers, and onto the jury.  Nobody noticed that she was, oh, slightly off-kilter. 

Yes, this is a funny story about a nutty person.  But it’s an apocryphal story about the value of jury selection.  No matter how hard we try to vet the jury for the prejudiced and the crazy, it remains a crap shoot.  Anybody want to argue again about whether this is all voodoo?

The old joke is that a Republican is a Democrat with a mortgage.  And a Democrat is a Republican under indictment.  The first part of the joke may be subject to review under the circumstances, since a mortgage these days means different things to different people.  No longer does self-interest demand that government forsake those in need.

But after a long, funny and grueling campaign season that has lasted longer than most first felony offender sentences, the day has come to do something about it.  An old Calvin and Hobbs comic that I taped to a bookcase in my office had Calvin saying something to the effect that, by never reading a newspaper, never listening to the news and never voting, he could never be wrong and would never be responsible for anything bad that happened. 

There are many people who profess to “know” the answers to some very big questions facing America.  For the most part, they prove their knowledge by challenging others to disprove them.  This, of course, is a gimmick to fool the unwary by shifting the burden of proving their solution to their opponents, when they can’t affirmatively prove that they have any better answer than anyone else.

Don’t be afraid of being wrong today.  The future is always an unknown, and carries no guarantees no matter what others say or how loudly they say it.  The best one can expect is that we reject that which we know to have failed, and move forward with as much hope and promise as we can muster. 

We know that the Bush administration has been perhaps one of the greatest failed presidency’s ever.  We know that Republican control of Congress and the Presidency was a disaster. 

The question now is whether we want to be put through the same wringer again, even though we’re being told that it’s not the same, it’s new and improved, it’s mavericky.  The real question is whether we will accept the same policies with new names and shinier descriptions.  Can we be fooled?

Barack Obama offers different policies and approaches.  Whether they represent the answer to our problems is unclear.  He’s exceptionally smart and well-educated, something that I consider important even though the anti-intellectual force that bolsters the self-esteem of Joe Six-Pack will call me names for saying so. I am not a fan of people who fall back on “common sense” to answer the question “why”.

Perhaps the thing that brings me the most comfort is the people who will make up Obama’s future cabinet, seen in this photograph.

Notice the somewhat taciturn fellow on the far right?  That’s Jim Chen, dean, blawger, maverick.  Notice the stick in Obama’s hands?  It looks remarkably like the one Teddy Roosevelt used to carry. 

With Jim Chen sitting only one person away from Barack Obama in this photograph of his potential cabinet, I feel comfortable that Obama will have good minds and trustworthy people around him. 

The most important thing that Obama brings to the table is hope.  We haven’t had much of that in a long time.  With no one to inspire us, to inspire our children, to elevate our national focus beyond making the quick buck and driving a new Mercedes, and instead look to bettering humanity, we are a far lesser people than we should be.

While I am not persuaded that John McCain, a man I admired for his integrity for years but who has compromised himself to win election, will offer anything other than the failed Republican orthodoxy, I will not vote against him.  While Barack Obama has not persuaded me that his policies are the “answer” to the serious problems we face, I will vote for him.  I will vote for the most expeditious end to war in Iraq possible, so that no young man or woman dies needlessly to promote political slogans designed to manipulate the ignorant.

But the most important reason I will vote for Barack Obama today is that I believe he will invigorate Americans with a positive message of hope for the future and inspire us to be better than we have been.  It’s been a long time since America had a President who inspired us to be better human beings, and I want that for myself and my children.