The stories are legion of police, New York or elsewhere, taking a dim view of people memorializing their conduct by video or still photography.  Photography is not a crime, so why do police persist in making it so?  Because they can.

Long-time  New York Times freelance photographer Robert Stolarik found out what it’s like to be treated like the riff-raff.

Mr. Stolarik was taking photographs of the arrest of a teenage girl about 10:30 p.m., when a police officer instructed him to stop doing so. Mr. Stolarik said he identified himself as a journalist for The Times and continued taking pictures. A second officer appeared, grabbed his camera and “slammed” it into his face, he said.

Mr. Stolarik said he asked for the officers’ badge numbers, and the officers then took his cameras and dragged him to the ground; he said that he was kicked in the back and that he received scrapes and bruises to his arms, legs and face.

The police, of course, fall back on their generic excuse, that Stolarik was given a “lawful order” and disobeyed.  The lily was then gilded:

The Police Department said in a statement that officers had been trying to disperse the crowd and had given “numerous lawful orders” for both the crowd and Mr. Stolarik to move back, but that he tried to push forward, “inadvertently” striking an officer in the face with his camera.

The police said that Mr. Stolarik then “violently resisted being handcuffed” and that, in the process, a second officer was cut on the hand.A video of the episode taken by one of the reporters who was with Mr. Stolarik shows Mr. Stolarik face down on the sidewalk, beneath a huddle of about six officers.

After all, photographers seem to be a very violent bunch, always doing something with justifies a pile of officers throwing them to the ground and piling on, the requisite knee to the small of the back so that it’s clear that someone will suffer pain, and it won’t be the cops.  Why six officers?  The others didn’t notice the take down in time to join the pile?

Naturally, charges were levied against Stolarik (note that I do not call him “Mr.” as does the Times, just as they don’t call other folks “Mr.” when it’s not one of their own) for obstructing governmental administration and resisting arrest.  He was apparently given a DAT with a return date in November, thus distinguishing him from the norm of a night in a holding cell at Central Booking. Somebody had the good sense not to push the envelope that far, and no doubt by the time Stolarik returns to court to answer the charges, everyone will forget this ever happened.

But what will the New York Times do about this?  This time, it’s not some local yokel photographer in some backwater getting his camera seized and head bashed.  If there is any newspaper with the ability to bring this issue to a head, it’s the New York Times.  So, gray lady, what do you plan to do about it?

George Freeman, a lawyer for The Times, said the episode was “especially distressing” because the newspaper had been working with the Police Department since the Occupy Wall Street protests last fall, in which some journalists were denied access to certain areas or were arrested, to find ways to prevent the police from interfering with journalists in the course of their work.

Compromise the First Amendment.  Cooperate with the police.  Beg for their indulgence. 

There has long been a concern about the media’s gutless embrace of law enforcement in order to smooth their way when “doing their job.”  They need cops to talk to them, giving them some “inside scoop” so they have more to write about then the official statement. They need access to crime scenes, disaster scenes, newsworthy events, that are under the control of the police. Without this access, how are they supposed to write stories, take pictures, report the news?

There are two ways to accomplish access.  The first is to come to an agreement with the guys with guns, where they won’t step on too many toes, make too many waves, annoy the men in blue.  After all, compromise is always the easiest, smoothest path.

The downside, of course, is that compromising access means they compromise their objectivity, their right to unearth the news and report it.  They report what they’re allowed to report.  They report only as much as the cops permit. 

The other way is to assert freedom of the press and make the biggest stink possible about this outrageous police abuse.  This way involves being tough. It means they could make some enemies. It means they would have to fight for their rights.  It all sounds so hard and unpleasant.  Compromise is such a beloved concept anyway.

Where will compromise take the New York Times after the arrest of Robert Stolarik?  Maybe they will agree to allow their photographers to be thrown to the ground, but agree to only four cops on his back?  Maybe the cops can smash his face on the pavement but not put a knee in his back? 

Or maybe the Times will agree that its photographers will only take pictures approved by the NYPD, and the cops agree not to arrest their people any more.  Will both the cops and the Times be happy with this compromise?

And maybe Stolarik will get an ACD come November, with a promise to behave himself by complying with police commands, just as they expect of every photographer.

Update: To the extent that some see this as a potential “turning point” in the revolution, with dreams of the New York Times fighting the good fight to finally put an end to police abuse of photographers, it should be noted that this story did not appear in the dead tree paper on page one, above the fold.  In fact, it appears on page A18, the last page of the section, below the fold. 

While the message may be subtle, it’s nonetheless clear.  The Times isn’t going to war over this. No matter how many barrels of ink they have stashed away, it will not be spilled on behalf of Stolarik.  







 

Soon after the death of Chavis Carter hit the internet, emails started coming in. Did I see it? What did I think? And, naturally, can you believe the Jonesboro, Arkansas cops just murdered this kid?

Carter suffered a single, fatal gunshot wound to the head. He was detained on Saturday night following a traffic stop in Jonesboro, about 2 1/2 hours north of Little Rock, after officers said they found marijuana and empty baggies. Officers searched him twice, handcuffed him and placed him in the back of a police car, police said. Not long after, police said, he was found slumped over, with his head in his lap and a gunshot wound to the head.

Well sure, I can believe.  But I don’t know it. Nothing about the death of Chavis Carter makes sense.  Twice searched, yet he still had a gun in his possession?  Possible, but highly unlikely.  The windows of the police cruiser were closed, so no shot fired from a third part outside.  The bust was for a small amount of pot, hardly anything for a young man to commit suicide over.

So it’s got to be the cops? Except witnesses bear out the cops story, that they placed him in the cruiser and a short while later found him dead.  To execute a cuffed prisoner this way is nuts.  It’s not that I can’t believe it might conceivably happen, but it’s such an absurd thing to do that absent some piece of evidence to support it, it’s hard to believe.  

Jonesboro Police Chief Michael Yates says the police-claimed circumstances of Carter’s death “defies logic.” He called it “bizarre,” and, for once, no one disagrees.

Those inclined to find the police at fault rushed to find the police at fault.  And they may be right, but their fury and hatred proves nothing about what happened. It proves only that they are as inclined to rush to judgment as the other team is to blame a defendant.  They seized upon possible minute distinctions in media reports of the police write-ups to show it was a murder and a cover-up. 

“I think they killed him”, said Teresa Carter.  In an administrative summary released Friday, officers said Carter was not handcuffed in the back of the car, at first. Then was taken out, handcuffed, and searched.   

Monday officers said a metal thumping noise first alerted them to the shooting. Now they are saying a smell, maybe gunsmoke alerted them and they found carter slumped over.

The mind plays tricks when trying to make sense of the senseless, but it’s neither a discrepancy nor an answer.  It is a grieving mother trying to understand why her son is dead.

The FBI is now going to investigate the case.  Maybe they will make sense of it, but they only have limited information available.  Coming after the fact, without so much as seeing the scene, make it difficult.  There is a dash cam, which may answer all questions, but why, if it does, has it not been disclosed?  This factors tends to militate strongly toward blaming the cops.  If the dash cam showed something else, one would suspect the Jonesboro police to paste it on Youtube within seconds, proving they did nothing wrong.

But it’s still speculation at this point, which is why I wrote nothing about what Charles Blow calls the Curious Case of Chavis Carter.  While his words drip with skepticism, Blow does all he can do. Ask the unanswered questions.

Yet, “specifically, how Carter suffered his apparently self-inflicted gunshot wound remains unexplained.”

That is the question, isn’t it? How do police officers search a man twice and find a small amount of marijuana but miss a handgun? And how does that man, who had been handcuffed, use that gun to shoot himself in the head?

It’s not impossible.  It’s certainly far-fetched.  People have offered scenarios that reflect Carter trying to rid himself of a concealed weapon that somehow survived the frisk, by dropping it on the floor and trying to move it under the seat of the police cruiser so it wouldn’t be discovered.  With his body contorted, his hands behind his back, trying desperately to slide the gun off the seat and onto the floor, it fired and struck him in the temple.  That’s one bizarre, twisted story, but as any criminal defense lawyer can tell you, bizarre twisted stories happen.  Not often, but sometimes.

When people sent me emails and links about this death, they expected me to write something.  After all, this was certainly a fascinating case, and clearly within my ballpark.  Yet I wrote nothing.  I was stymied.

Blow asks all the right questions, but there is nothing as yet, and there may well never be, meaningful answers to these very hard questions.  So what do we do?  Retreat to our respective teams and root for our side?  We ridicule the other side for doing this, and yet should we do the same?

There are times when a fascinating, horrible story comes to light.  A young man is dead under circumstances that defy logic.  And there is nothing more to add.  To think there is some insight to what happened to Chavis Carter given the known “facts” is to indulge in speculation colored by bias.  That enlightens no one, and feeds the mindless antagonism that too often frames the debate over police abuse and misconduct.  No side is entitled to fill in the blanks with whatever serves their agenda.

I had nothing.  I wrote nothing. That’s the best I can do until there is information that changes the landscape.  I’m sorry to have disappointed those of you who think I should have had an answer, but I’m not sorry for coming up empty when that’s the only legitimate view one can have under the circumstances.

Jared Rapp has a great career ahead of him as a lawyer.  Not only because his win before the Michigan Supreme Court in  People v. Rapp was a significant victory for free speech, not to mention an important smack down for “meter maids,” regardless of gender, who believe that no mere citizen has the right to orally challenge their official acts, but because he did something that few people do.  He took a small but important fight all the way to victory.

From The Fire :

On September 16, 2008, Rapp received a parking ticket on MSU’s campus. He approached a nearby MSU parking enforcement employee to complain about the ticket. When Rapp began shouting, the employee called campus police from inside his service vehicle, the standard procedure for responding to an upset parking ticket recipient. Rapp was charged with violating MSU Ordinance § 15.05, which reads:

No person shall disrupt the normal activity or molest the property of any person, firm, or agency while that person, firm, or agency is carrying out service, activity or agreement for or with the University.

Rapp was eventually convicted of violating this ordinance for his tirade against the parking enforcement employee.

Rapp based his case on the 1987 US Supreme Court case Houston v. Hill which found unconstitutionally overbroad under the First Amendment a municipal ordinance that made it a crime to interrupt a police officer. The justices in that case stated police should not be given the ability to arrest individuals for words or conduct that offend them. A majority of the Michigan justices found the MSU ordinance was even broader in scope than the Houston ordinance.

“Like the ordinance that the United States Supreme Court invalidated in Hill, the verbal disruptions that the MSU ordinance criminalizes are not limited to those containing fighting words or obscene language,” Justice Diane M. Hathaway wrote for the Michigan court majority. “Instead, the MSU ordinance explicitly criminalizes any disruption of the normal activity of persons or entities carrying out activities for or with MSU. Not only does the ordinance fail to limit the types of disruptions that are prohibited, it also protects a much broader class of individuals than the ordinance at issue in Hill.”

The majority pointed out that other statutes already prohibit physical assault, so the MSU ordinance in large part criminalizes speech. Rapp did lose his argument that the state should pay the costs he incurred defending himself against a prosecution based on an unconstitutional statute. The justices found no statutory basis for awarding such costs in a criminal case.

Well, not quite a kid, as Jim von der Heydt came to law school after having taught English at Phillips Exeter Academy (where rich parents rid themselves of their baby at their earliest opportunity).  But now that he’s going into his third year of law school, a “rising” 3L as it’s now pretentiously called, he gets to be a kid again (and will therefore be called “the kid” hereinafter).

For some inexplicable reason, Dan Markel  invited the kid to post at PrawfsBlawg about his experience as submissions editor at Cleveland State Law Review.  Yes, apparently there is a law school called Cleveland State, and far be it for me to tell anyone in Ohio that Cleveland is not a state.  The point of the kid’s posts are to advise scholars as to what he, as Lord of Submissions, thinks of their efforts.  He began at the beginning, with cover letters, which he takes seriously despite common wisdom that nobody actually reads them.

From this ignominious start, the kid took a fascinating turn.  His second post, Reaching the Merits, raises a fundamental, and often ignored, lesson for all lawyers, and most people:

To every issue there is a “threshold issue”; before any question is asked there are motions in limine; the countervailing facts are not yet ripe for consideration; can subject-matter jurisdiction be addressed before prudential standing, or do we even need to reach that question? 

There, in the holy of holies, adorned with wisps of emergent satori, is the lama.

“Sheldon,” she says.  “Come home!”

The problem is that most articles editors say that cover letters are irrelevant and that they never read them. So if you’re asking us for the best cover letter, no responses may in fact be our “Zen” answer.

(Incidentally, you might also find that you get more of a response if the reader knows what the post is about in the first paragraph, above the break. If you make readers work their way through a lot of writing before you get to the point, relatively few readers will still be reading by then.)

Posted by: Orin Kerr | Aug 3, 2012 6:01:09 PM

Unfunny joke and turgid post.

Sorry.

Posted by: Barbara Seville | Aug 3, 2012 8:08:14 PM

Initially, whether a “joke” is funny or not is a matter of personal opinion.  Whoever Barbara Seville is (and I was unable to figure it out), to take the time to post a comment that she didn’t find the post funny is a monumentally douchy move. It wasn’t patently offensive. It wasn’t dangerous or destructive. It’s not to your liking? Who cares, you pompous, narcissistic fool.

But the real irony is calling the post “turgid.”  Turgid is the stock in trade of academics, for whom pedantism is the air they breath.  The post was no more turgid than pretty much anything else posted at a law prof blog, and given that it opened with a joke (even if unfunny to someone who thinks the blawgosphere owes her humor that matches her personal sensibilities), it’s about as unturgid as it gets.

Sadly, the kid responded to the second comment with acquiescence,

Agreed.

It’s in the nature of shaggy-dog stories to be shaggy, but the argument got woolly as well.

I’ll have more organized thoughts on legal academia’s neglect of juries, and the complexity of “fact-finding,” in a later post.

Posted by: Jim von der Heydt | Aug 3, 2012 9:14:46 PM

While it’s understandable that a “rising 3L” would be reluctant to tell a commenter to blow it out her butt, the time to decide whether your post is shaggy or woolly is before you hit publish, not afterward. There’s no shame in telling a pompous, narcissistic fool to get lost.

As to Orin’s comment, the kid did much better:

“relatively few readers will still be reading by then”
Yes, those are the ones I was writing for. The others will ignore the post (with, apparently, one exception).

In the same way, editors that value the cover letter will value a good one, and editors that don’t will ignore one. It’s hard to see the merit in ignoring the former, even if there are fewer of them.

Posted by: Jim von der Heydt | Aug 3, 2012 9:19:01 PM

Exactly.  Like I said, the kid gets it.

The Criminal Justice Section of the New York State Bar Association has a long and honored tradition of equivocation so that no one’s feelings are hurt.  Unlike specialized bar groups, the section includes defense lawyers, prosecutors and judges, where disagreements are tempered by civility and the assurance that all will be shown “respect,” meaning that it’s better to compromise on the evisceration of constitutional rights than call anyone out so that they can share a glass of sherry afterward in camaraderie.

Then came Marvin.  Marvin Schechter is a past president of the New York State Association of Criminal Defense Lawyers, and the  only defense attorney member of the commission formed by the National Academy of Sciences that produced the report, “Strengthening Forensic Science in the United States: A Path Forward.”  And now (at least as of this writing, as it might change by the time you read this), Marvin is the chair of the CJS.

In the NYSBA Criminal Justice Section Newsletter, there’s a “message from the chair” column. As Marvin’s the chair, it’s his message.  And following a decision out of the Bronx by Judge Edgar Walker in People v. Waters, where the court held that the prosecutor engaged in an “affirmative act of deceit” by withholding Brady material. 

The Bronx District Attorney, Rob Johnson,  argued that the judge was wrong as the withheld material, that a key witness changed his story, wasn’t Brady:

True, the decision was written by a judge. But both the decision and Schechter seem to ignore the fact that the material in question was inculpatory rather than exculpatory, which was fully explained in our motion to reargue the case, which the judge denied without detailed analysis. That’s right, the versions of the witness’ testimony which were more favorable to the defendant had been fully disclosed and were already in their possession for use as impeachment material.

Assistant district attorneys do not emerge from law school with a genetic disposition to hiding Brady material.  Instead this is something which is learned and taught.

The reliance of the district attorneys association on a recent handbook it prepared is telling. The handbook asserts that prosecutors need only disclose “material, exculpatory information.” But Vance certainly knows that is simply not the standard set forth by our courts and guaranteed by our Constitution.

While it does not serve the best interest of our profession for Willstatter to commend Marvin Schechter, chair of the Criminal Justice Section of the New York State Bar Association for his baseless and reckless claim that “state and federal prosecutors frequently withhold evidence favorable to a defendant,” it’s unfortunate that he omits Schechter’s shocking and calumnious charge in a recent column he authored as chair of the section that the district attorneys of this state teach young prosecutors to violate the Brady rule as a matter of policy.”

The current Chair of this section did not accuse District Attorneys of not training or poorly training Assistant District Attorneys on Brady. He accused us of actually teaching Brady violations.  I can express my outrage, but I cannot feign surprise that these are the opinions of our current Chair.  His opinions would be just that, his opinions, and of little note except that he expressed them as the chair of our Criminal Justice Section.  I seek no apology from our current chair – his beliefs are his own and I can*t imagine that he would sincerely apologize for his outrageous statements.  I do, however, seek a clear statement from this committee, not just that the current chair*s statement is not the view of the committee, but specifically disavowing his statement that District Attorneys intentionally teach Brady violations.

“There is nothing new in what I said. There is nothing outrageous in what I said,” Schechter said. “D.A.s are responsible for the training of the assistant D.A.s when they come to their offices and we have yet to see from the D.A.s any explanation of why these Brady violations are occurring in the record numbers they are occurring and in the seriousness in which they are occurring.”

The real shame is that the district attorneys demonstrate far more concern with salvaging their dignity after this well-deserved smack than they do about  Brady failures and wrongful convictions, which they persist in sloughing off as if they can’t possibly imagine how such isolated incidents continue to occur. 

The prosecutors want to be treated respectfully. So do defense lawyers and defendants. If they want to have a civil and respectful discussion about why things go wrong, then it starts with some harsh truth, one of which is that they are not teaching their people the full scope and depth of Brady.  Show us you deserve the respect you crave by conceding that there is a huge problem. Then work together to fix it.  Afterward, we can sip sherry.




 

The  New York Times reports that Goldman Sachs is investing $9.6 million in a New York City program intended to reduce adolescent recidivism.

In New York City, Mayor Michael R. Bloomberg plans to announce on Thursday that Goldman Sachs will provide a $9.6 million loan to pay for a new four-year program intended to reduce the rate at which adolescent men incarcerated at Rikers Island reoffend after their release.

The Goldman money will be used to pay MDRC, a social services provider, to design and oversee the program. If the program reduces recidivism by 10 percent, Goldman would be repaid the full $9.6 million; if recidivism drops more, Goldman could make as much as $2.1 million in profit; if recidivism does not drop by at least 10 percent, Goldman would lose as much as $2.4 million.

An interesting bet, though its unclear how a reduction in recidivism produces a direct return for Goldman beyond a government handout. 

If the jail program does not succeed, MDRC can use the Bloomberg money to repay Goldman a portion of its loan; if the program does succeed, Goldman will be paid by the city’s Department of Correction, and MDRC may use the Bloomberg money for other social impact bonds, said James Anderson, director of the foundation’s government innovation program.

It seems that if they just floated a bond, it would cost a lot less, but then the government would have to pay it back regardless. This way, Goldman (and guarantor Bloomberg Philanthropies) takes the hit if the program fails.  Still the amount involved may be significant for kids at Rikers, but falls a bit shy of Goldman’s monthly bagel budget for new staff meetings.  Yes, Goldman is that kinda rich.

There is nothing wrong with doing well by doing good, and if Goldman can make enough money off it to fund clerical staff bonuses for one office for one year, that’s great.  But where will this money go?

The Goldman money will finance a program called Adolescent Behavioral Learning Experience, or ABLE, as a part of the Bloomberg administration’s year-old Young Men’s Initiative, which seeks to improve prospects for black and Latino adolescents. The jail program, which will offer counseling and education for an estimated 3,400 incarcerated adolescent men each year, will be run by two nonprofit organizations, Osborne Association and Friends of Island Academy, and overseen by MDRC.

Currently, nearly 50 percent of young men released from Rikers reoffend within a year.

This is where it gets scary. The  ABLE program is blessed with positive jargon, lofty goals and abject cluelessness.  Like almost every program that rises from the loins of academics, it’s high-minded, politically correct and grounded in utter fantasy.  For example:

Increase the number of high school graduates that are college and career ready by investing
in targeted group of test of schools to test, refine, and document best practices—then disseminate these practices system-wide

Ohh. That’ll fix ’em.  It’s got nothing to do with teachers that suck, parent(s) with no culture of education, no ability to pay for college even if they ever got there, no jobs, street-life where a kid is more likely to be tossed against a wall by a cop doing stop and frisk than fed three meals a day. Nope, the schools just need to be told of “best practices.” Problem solved.

There is a group in polite society that comes into contact with these adolescents on a regular basis. Can you guess who they are?  Correct! That would be criminal defense lawyers, and most likely institutional defenders.  They can tell you what they see in young people committing crimes, but nobody asks.

Want to stop crime by black and Latino youth? Give them the hope of a job.  Their role models for the past few decades are drug dealers, the only people in uptown Manhattan driving fancy cars and wearing flashy jewelry.  They get the women. They drink Cristal. They live the good life. 

Want to stop crime by black and Latino youth? Give them a reason to believe that they can walk down the street without having some cop grab them, throw them against the wall and haul them off to central booking because they didn’t like their attitude. No one becomes vested in law abiding society when they’re treated like garbage.

Want to stop crime by black and Latino youth? Give them a reason to believe they will some day own a home, put their kids through college, make it to old age without getting a bullet in their head.  They aren’t going to care about being educated in public schools if it leads nowhere. They need to believe they can do better, have a better life, by going to school and learning rather than hanging on the street corner selling dime bags.

Want to stop crime by black and Latino youth?  Give them a reason to believe that one day, they will be able to join polite society rather than be perpetual outcasts, looked at with hatred and disgust by the agents of the government who make absolutely certain that they know their place, at the bottom of society’s ladder, where they will stay for the rest of their lives.

These kids aren’t lab rats. They’re kids. They want what everybody wants, a cool future where they can be someone, have expectations of a happy, successful life.  With this expectation, there’s no reason to bother with school.  Why would anybody suffer a dozen years of school with a teacher reading the Times until his pension vests so that you can someday get a minimum wage job behind the counter of Popeye’s Chicken, where the best part of the day is smoking a blunt with the homies while hoping some 16-year-old gal will loosen up enough to let you become baby-daddy?

They need jobs. Well paying jobs. Like everybody else.

They need respect, to be treated better than animals by the uniformed representatives of the other side of society who walk their streets to make sure they don’t get too full of themselves.

They need to believe that if they play the chump game, go to school, study, work hard, fly straight, they can do better than they would selling dime bags on the corner.  The biggest joke of this initiative is that the guarantor of the Goldman Sachs loot is the same fellow who values stop and frisk above the constitutional rights of the adolescents he says he wants to help.  You can’t have it both ways, Mayor Bloomberg. You can’t treat them like trash while telling them how much you care about them.

Got a program that can do this?  At any price?  I didn’t think so.

There is hard science. There is soft science.  And then there are really heart-warming stories that seem to have some sort of connection to science, in a non-analytical sort of way.  Which of these do you suppose the Texas Court of Criminal Appeals prefers?

Via Danielle Citron* at  Concurring Opinions,

On August 7, Texas plans to execute Marvin Wilson, a man who received a 61 on the standard Wechsler full-scale I.Q. test, a score placing him below the first percentile of human intelligence and far below the I.Q. threshold for mental retardation (MR). His adaptive functioning registers at an even lower percentile. In 1998, a Beaumont jury convicted and capitally sentenced Mr. Wilson for the 1992 murder of Jerry Williams, which allegedly occurred after a fight at a gas station.

Mr. Wilson was diagnosed with MR by Dr. Donald Trahan, a court-appointed, board certified neuropsychologist with 22 years of clinical experience as an MR specialist. (See this addendum to his report as well).  

Utilizing the AAMR/AAIDD’s clinical criteria for mental retardation, Dr. Trahan met with Mr. Wilson for eight hours, reviewed his school and medical records, and administered or evaluated a battery of leading neuropsychological testing. He examined Mr. Wilson’s memory, language development, adaptive skills, conceptual reasoning, practical skills and other scientifically-recognized indicia of mental functioning. Taking into account all of that data, Dr. Trahan concluded that Mr. Wilson clearly had mild MR.

At Mr. Wilson’s MR hearing, the state presented no evidence whatsoever; it has never offered any expert opinion, in any form, challenging Dr. Trahan’s clinical diagnosis. The state court actually reasoned that Mr. Wilson did not have MR because he “functioned sufficiently in his younger years to hold jobs, get a drivers license, marry and have a child.” 

Texas, however, has translated the Supreme Court’s categorical ban on executing offenders with MR in a way that does not, in practice, exempt most offenders with that intellectual disability. Instead, Texas has improvised a set of “Briseño factors” (named after the Texas decision that announced them) to determine which defendants with MR actually receive the Atkins exemption.

The Briseño factors are not used by any scientists or clinicians in medical practice, and they are not recognized by the AAMR/AAIDD. The Texas Court of Criminal appeals—the state supreme court for the purposes of criminal adjudication—has actually indicated that it formulated the Briseño factors with Steinbeck’s Lennie in mind.  Although literature can tell us much about society and  law, by my lights, it should not replace or disregard well-accepted scientific measures of evaluation.  That no doubt seems obvious to our readers, but no so to the Texas Court of Criminal appeals.

In other words, the CCA decided to base their test for mental retardation on a character in a novel instead of science. 

In the comments to Citron’s post, it was suggested that this was merely “line drawing” by the court, so that only the most severely retarded were saved from death, and that the ordinarily retarded who did not hold elected positions would still be subject to frying.  Oh no. This argument does not fly.

While the question of where along the spectrum of mental retardation the cut off should be may be subject to some debate, the Briseño factors have no place in the discussion.  These aren’t founded in anything, other than a darn fine book.  But it’s fiction.  It’s not the measure of human intelligence, or a scientific basis upon which a bunch of judges can rule.  Having read the book (or at least most of it), the judges of the Court of Criminal Appeals are not suddenly qualified to craft factors for a scientific or medical diagnosis.

One of the dirty little secrets of the law is that judges get to make decisions about things they don’t understand.  Take technology for instance.  Medical and scientific stuff as well.  It’s not that they don’t think they understand.  They attribute knowledge of all sorts of stuff to themselves, often after listening to cherry-picked experts who present their views as if no one could possibly differ.  Except all the other experts in the same field, who aren’t put on the stand.  Yet, the judge who hears it now believes she is imbued with such depth of knowledge as to rule on the validity or consequence of a scientific fact, and that ruling will be perpetuated by scientifically-challenged judges in perpetuity.

But at least those judges, misguided as they may be, have attempted to rely on something resembling a scientific foundation.  In Texas, they prefer something even more scarce than scientific knowledge: a Steinbeck novel.  The bottom line is that Lennie is safe from execution.  Just Lennie.

In a New York Times op-ed, Andrew Hacker has brought joy to every slackoisie who has to take off his shoes and pull down his pants to count to 21.  Finally, someone has bought into the argument made for generations that it’s something no one will ever need. Hacker’s highly controversial view is it’s time to rid our schools of demon algebra.

A TYPICAL American school day finds some six million high school students and two million college freshmen struggling with algebra. In both high school and college, all too many students are expected to fail. Why do we subject American students to this ordeal? I’ve found myself moving toward the strong view that we shouldn’t.

This debate matters. Making mathematics mandatory prevents us from discovering and developing young talent. In the interest of maintaining rigor, we’re actually depleting our pool of brainpower. I say this as a writer and social scientist whose work relies heavily on the use of numbers. My aim is not to spare students from a difficult subject, but to call attention to the real problems we are causing by misdirecting precious resources.

When the going gets tough, the tough go shopping for something not so tough.  It’s not my place to defend the honor of algebra, or any mathematical discipline, and others have already done so.  Frankly, I have no particular feelings about algebra at all.

What is disturbing, however, is that Hacker’s argument is grounded in fact that learning algebra is hard.  Things that are hard make people frustrated and unhappy.  When they get frustrated and unhappy, they don’t want to do it. And so, per Hacker, they drop out of school and go on to lives as rock musicians and cable installers. 

Breaking news: Life is hard. The solution to dealing with hardship isn’t to tell Buffy and Jody that whenever something is hard, they can pretend it doesn’t exist and go on to subject they enjoy.  The solution is to foster a culture where young people toughen up, work harder, overcome their frustration and unhappiness and get it done.  Hacker doesn’t like that solution.

Remember “whole language”?  It was a similar effort by educators to dumb down difficulties faced by students.  Why, the theory went, should students suffer the rules of spelling, punctuation and grammar and stifle their innate brilliance?  Why not look beyond archaic rules and allow students to air their genius free of constraints?  Why indeed.

The reason soon became apparent. First, they produced incomprehensible words, because they couldn’t spell.  The problem with incomprehensible words is that the creator might have some clue what the word was, but no one else did. Then they couldn’t sling together a sentence, so that if there was a thought buried within, no one would ever know. And finally, the truth came out: Little junior was not the reincarnation of ee cummings.

Contrary to the flighty supposition, not only did the elimination of rules free students from the constraints that enabled communication, but from anything remotely resembling thought.  The rigor of applying rules to letters came hand in hand with the rigor of thinking.  Whole language certainly made things easier, but the price was far greater than its advocates anticipated.  Students not only failed to learn the rules of written communication, but lost the ability to think along with it.  On the bright side, they were too dumb to realize how dumb they were, and were pretty darned happy about how easy it all was.

What Hacker offers is a variation on a theme.  If his argument was limited to the view that algebra was simply no longer a necessary component to live a generally educated life and to participate as a member of society, maybe he would be on to something.  After all, the care and feeding of horses is no longer a general necessity, and no one is worse off for the inability to groom or shoe a horse.  A few, whose work requires such specialized knowledge, still know how to do it, and that’s good enough for society.

But his argument goes wrong:

Algebra is an onerous stumbling block for all kinds of students: disadvantaged and affluent, black and white. In New Mexico, 43 percent of white students fell below “proficient,” along with 39 percent in Tennessee. Even well-endowed schools have otherwise talented students who are impeded by algebra, to say nothing of calculus and trigonometry.

California’s two university systems, for instance, consider applications only from students who have taken three years of mathematics and in that way exclude many applicants who might excel in fields like art or history. Community college students face an equally prohibitive mathematics wall. A study of two-year schools found that fewer than a quarter of their entrants passed the algebra classes they were required to take.

“There are students taking these courses three, four, five times,” says Barbara Bonham of Appalachian State University. While some ultimately pass, she adds, “many drop out.”

This is the new way to avoid failure.  Get rid of anything that’s hard, rub Timmy’s tummy and tell him how smart he is. Problem solved!  And then comes the kicker:

It’s true that students in Finland, South Korea and Canada score better on mathematics tests. But it’s their perseverance, not their classroom algebra, that fits them for demanding jobs.

Well, we certainly wouldn’t want to teach American students to persevere.  That sort of thing is for Canadians, and they can keep it, thank you very much.  They may be well educated and capable of greatness, but American children will all be all smiles and have degrees from prestigious colleges that will enable them to rock the world with their ability to weave baskets.  Hah, sad Canadian math freaks!

Hacker then addresses the criticism of his vision of an algebra-less world:

What of the claim that mathematics sharpens our minds and makes us more intellectually adept as individuals and a citizen body? It’s true that mathematics requires mental exertion. But there’s no evidence that being able to prove (x² + y²)² = (x² – y²)² + (2xy)² leads to more credible political opinions or social analysis.

Had he paid any attention at all to American political opinions or social analysis?  We’re a nation of idiots, proving so in every quadrennial exercise.  The exertion required to perform algebra involves a muscle in desperate need to exercise: the brain.  The ability to engage in linear, rational thought is what allows us to solve basic algebraic equations.  It’s pretty good for other stuff too, even if our occupations never require us to perform quadratic equations per se.

The underlying message here is that our nation remains dedicated to the removal of barriers to self-esteem and happiness at the cost of, well, everything else.  Perhaps our drop-out rate is what it should be, and reflects the distribution of talent and intelligence across the spectrum. 

More likely, however, is that it reflects the slackoisie attitude toward hard work. Sorry, kids, but better you learn to persevere, because it’s not going to get any easier later.  The way to win the War on Algebra is to overcome it, not surrender.

At Above the Law, Mark Herrmann (the  famous author and curmudgeon) offers another bit of insight from the corner office they give to in-house counsel that  carries over to the well of the courtroom.  After an introduction that makes utterly no sense to me, Mark reaches his point:

The first “Are you sure?” did not arise in a legal context. A guy got off a subway, emerged from under ground, pulled out a map, and told the woman he was with: “We should walk this way.”

She asked, “Are you sure?”

Now look: The guy had a map in his hand; he had just emerged from under ground; and he was considering the situation. I have a creeping suspicion that he wasn’t sure; he was probably giving his best assessment of the situation.

Given that, I don’t think his companion was actually asking whether he was sure; she knew that he was uncertain. Rather, his companion was setting the guy up for a fall: Fifteen minutes from now, when this couple was lost in a bad part of town, she could blame him for having put them in this situation — because “I told you that this was the wrong way!”

It’s not hard to picture.  At the tail end of the retirement party for DEA Special Agent Jones, who went seven years beyond his 20 and out, a dweeby guy he never met before walks up to him and asks if he can have a word.  They walk to a quiet corner of the room, and the dweeby guy tells Jones that his pension is gone.  Poof, gone. The government needed some cash to make a big buy in a sting operation, and it used the money that was supposed to go to fund his pension.

Unfortunately, the sting went bad, and the target got away with the money. It’s gone.

Jones listens.  When the dweeby guy stops talking, Jones says,

Are you out of your mind? That’s my money. My pension. I earned it. It wasn’t yours to lose. Screw (actually, he uses a harsh expletive, but this is a family-safe blawg, so I’ve toned down Jones’ language) this.

“Your driver was shot in your truck,” said the caller, a business colleague. “Your truck was loaded with marijuana. He was shot eight times while sitting in the cab. Do you know anything about your driver hauling marijuana?”

“What did you say?” Patty recalled asking. “Could you please repeat that?”

Commandeered by one of his drivers, who was secretly working with federal agents, the truck had been hauling marijuana from the border as part of an undercover operation. And without Patty’s knowledge, the Drug Enforcement Administration was paying his driver, Lawrence Chapa, to use the truck to bust traffickers.

At least 17 hours before that early morning phone call, Chapa was shot dead in front of more than a dozen law enforcement officers – all of them taken by surprise by hijackers trying to steal the red Kenworth T600 truck and its load of pot.

For its part, the DEA has not admitted that it was using Chapa as a spy because its official policy is not to comment on whether someone was an informant.

In documents shared with the Houston Chronicle, he is demanding that the DEA pay $133,532 in repairs and lost wages over the bullet-sprayed truck, and $1.3 million more for the damage to himself and his family, who fear retaliation by a drug cartel over the bungled narcotics sting.

“When you start a new business, there are obvious pitfalls you go through, a learning curve,” said Patty, who before buying his two trucks worked in the pharmaceutical industry. “But who would ever be ready to deal with this?

“How am I — a small businessman, father of three, American Joe from Texas — supposed to make a claim against a federal agency that has conveniently shrouded itself behind a red, white and blue cloak of confidentiality and secrecy?”