Sneaking Suspicions |
 |
Sneaking Suspicions |
|
|
This page includes posts from January 26-February 8, 2003 in the usual reverse
order. Each posting on the home page is perma-linked to these
archive pages.
|
|
|
| Thousands of plungers and their friends gather just before the Plunge. |
|
|
| Several dozen Plungers running both in and out of the water. |
|
|
| One Plunger is still shocked at the cold, but happy it's over. |
There was an odd little coincidence to the movies we watched this weekend that also ties into the Columbia disaster.
It’s a matter of responsibility.
On Friday night we watched Barbershop, the fine and funny movie starring Ice Cube, Cedric the Entertainer, and several other great performers.
In Cube’s leading role as Calvin Palmer, he shows a young man struggling to accept his role as a budding leader in his South Chicago community. His inclinations were to break free from his inherited barbershop, and embark on an ill-considered get-rich-quick scheme. How he learns to appreciate instead what he already brings to his family and neighborhood, and then live up to the challenge of being steadfast in meeting those challenges, is the central theme of this film.
On Saturday afternoon we watched LOTR, The Two Towers.
It’s been so long since I read the Tolkien trilogy that I couldn’t tell you what Peter Jackson altered from the original work. Nonetheless, the idea of maintaining fidelity to one’s principles, if not one’s destiny, runs through the stories of many of the characters in the movie, be they elves, dwarves, hobbits, ents, or humans.
On Saturday night we watched About a Boy, a quiet little British film starring Hugh Grant.
In stark contrast to Cube’s character in Barbershop, Grant’s character Will is already rich enough to be able to do literally nothing. It takes a small boy, Marcus, played well by Nicholas Hault, to teach Will that a man without real responsibilities is not really a man at all. The story shows how Will becomes a real adult by helping others without expectation of personal reward.
The biographies of the seven crew members of the Columbia show without exception that these people understood and embraced the values of duty and devotion to goals higher than themselves.
They gladly accepted the risks and responsibilities of their chosen profession as astronauts, for the sake of advancing the cause of human knowledge.
The example the Columbia crew set is obviously more impressive than what any of these three movies could impart, in that fact is often stronger than fiction in imparting some basic truths. In all four cases, however, the lesson of responsibility is well presented, and worth noting.
Hardy perennials bloom at the beginning of each state legislative session.
This year’s new Delaware General Assembly is no exception.
A hardy perennial is a bill that is introduced at least once every session for consideration and adoption by the legislature. This bill is not only not considered and not adopted; it is also completely ignored, stuck in some committee somewhere.
For some reason, the bill’s sponsors and advocates are undaunted by constant defeat, and renew their efforts in the next session.
A classic example in Delaware is a bill to introduce the early 20th Century Progressive Era reforms of initiative and referendum into the Delaware Constitution. The text is repeated each time (this year it’s Senate Bill No. 24); it is introduced in the opening days of the initial January meeting of the General Assembly; and nothing happens.
For the last few years some folks have been trying to cultivate a new perennial, this time dealing with casino gambling. Unlike those pushing the initiative and referendum bill, however, this group has tried a new hybrid each year. Thus far their success rate hasn’t changed.
Delaware has slot machines at three horse racing tracks, due to an intriguing interpretation of the Delaware Constitution’s prohibitions against most forms of gambling. Lotteries are an exception, and that’s why one sees slot machines called “video lotteries” around here.
(The beauty of the English language is frequently on display in the law, don't you think?)
These folks would like to expand the field to include new gambling locations--namely, their places. In order to entice the General Assembly into increasing the opportunities for slot operators, this year’s version (House Bill No. 10) includes an impressive array of potentially tempting policy initiatives:
One-third of the annual balance of this Fund shall be used to preserve farmland and open space as determined by the Bond Bill Committee, one-third shall be used to provide financial assistance to residents who reside at Delaware long-term care facilities, and one-third shall be used to support Pre-Kindergarten initiatives.
In other words, these new slot machines would provide for an Adaptive Reuse of Environmentally Damaged AreasTM, would help Preserve The Family FarmTM, would provide needed resources for Senior Citizens on Fixed IncomesTM, and also generate new income For the ChildrenTM.
I certainly give these folks points for creativity, and for managing to hit several hot button issues all at once.
Given my understanding of the lobbying effectiveness of the state’s racetrack owners, however, I also give House Bill No. 10 a 3% chance of ever actually passing either house of the General Assembly.
Earlier this month I quoted from a Paul Krugman column in the NYT about state revenue choices, in which he predicted how the states would obtain new money during the current fiscal crisis:
Since Washington shows no interest in helping, states will be forced into desperate expedients. Taxes, mainly taxes that fall most heavily on the poor and the middle class, will go up….
I then suggested Krugman was simply wrong, at least about Louisiana, a state we just visited. The post pointed out that effective January 1 Louisiana shifted a portion of its tax burden from its general sales tax to a new income tax, thus increasing the progressivity of its overall system.
If Delaware Governor Ruth Ann Minner’s suggestions in her budget address yesterday are enacted into law, then Krugman will also be proven wrong about the Blue Hen State.
Governor Minner discussed the fact that Delaware faces about a $300 million General Fund shortfall in the next fiscal year. She proposed that about half that amount should be addressed through various cuts and shifts out of the Fund. The other half would be the result of some targeted revenue sources.
For example, $89 million would come from increases in franchise taxes and fees charged to Delaware corporations and similar businesses, a net change of about 17 per cent from rates that hadn’t been altered since 1991.
Another $14 million would come from uncoupling the state’s estate tax system from the federal scheme, affecting about 300 taxpayers per year with estates larger than $1 million. Minner also said that if the Bush Administration succeeds in reducing or eliminating the federal tax on corporate dividends, she would seek similar uncoupling legislation to eliminate the hit on state tax revenues that would otherwise result.
In a good example of taking with one hand while giving with the other, at least in part, Minner also proposed increasing the permitted hours of operation of the state’s three slots operators, and also increasing the state’s take from that source by about $16 million.
Finally, Minner also suggested that Delaware bring its tobacco tax up to 50 cents per pack. That's still far below the charges imposed by neighboring states, but it would generate an additional $23.5 million in new revenue.
As I look at these numbers, I’m just not seeing a tax scheme that
fall[s] most heavily on the poor and the middle class….
Most of the new money results from tax exporting, to use a phrase Max Sawicky mentioned when we met recently. Delaware’s taxes on corporations, limited partnerships, and other business entities are the legal equivalent of the oil and gas severance taxes paid to states like Louisiana, Texas, and Oklahoma. Instead of paying for the privilege of removing a natural resource from the state for use all over the country, businesses from all over the country pay for the privilege of operating under Delaware’s business laws. Either way, the revenue is mostly paid from out-of-state sources, for which the exporting label fits very nicely (thanks, Max!).
The uncoupling proposal is aimed at the upper classes, since these death taxes are only due from large estates.
In contrast to the general impression about the state lotteries such as Powerball, I’m hard-pressed to agree that the income levels of those frequenting the slots parlors in Delaware are primarily poor or even middle-class. In addition, a sizeable number of the casino customers are from out-of-state, so even here there’s a bit of tax exporting.
The poor and the middle class will certainly be among those who contribute toward the final proposal for new income, the cigarette tax. The new tax will also be paid by every smoker from every other income group, so it can’t be argued successfully that the entire $23.5 million will come from the downtrodden.
I’m sure that some other states’ proposals for raising new taxes will eventually fit Krugman’s dire prediction. On the other hand, it was a bit presumptuous for the NYT columnist to imply that every state would think that tapping those with thin wallets first would be the best way to find the money they think they need.
He should have given the state politicians a bit more credit.
January 30, 2003
A warning for new dads
Here’s a stern warning for brand new fathers, courtesy of a decision this week by the Seventh Circuit Court of Appeals:
If your baby’s mother says she needs money for Pampers® products, you should make every effort to make sure she receives it.
Otherwise, there could be some ugly consequences.
A woman referred to in the opinion as “Pat Doe” contacted the sheriff’s office in Macon County, Illinois. Doe told Deputy Sheriff James Root that Sean A. Peck was in possession of crack cocaine and cannabis. She told the officer that she’d been in Peck’s house in the last two days, and that Peck showed Doe large packages of the illegal drugs that he told her he planned to sell.
Doe had her reasons for making the call:
Doe told Root that she wanted Peck punished because he was not paying for diapers for their child and that she thought Peck should be arrested because he was dealing drugs.
Root did not know Doe, and so he asked her to come to the police station and make the same statements under oath, which she did. Root also did a record check and confirmed that Peck had a prior drug conviction. He then obtained a search warrant from a local judge, and found over five grams of crack at Peck’s residence.
On appeal from his conviction on the drug charges that followed, Peck argued that there was insufficient probable cause for the issuance of the search warrant. After reviewing the facts and the law, the Circuit Court agreed with Peck.
Unfortunately for him, that wasn’t the end of the analysis:
[B]ecause the evidence was admissible based on the good faith exception to the exclusionary rule of United States v. Leon, 468 U.S. 897 (1984), we affirm the district court’s denial of Peck’s motion to suppress….
[M]ost CIs [Confidential Informants] have a bias against the defendant or something to gain from giving their statement…. The fact that the police used Doe’s statement even when they knew she was biased was not unreasonable. In fact, her relationship with Peck may have made her story more credible because, as someone close to Peck, she was more likely to know that drugs were in the house other than someone not close to Peck. Though the police did not take the steps that we require to demonstrate probable cause, the measures that they did take when receiving the information from the CI were sufficient to show their good faith reliance on the warrant.
Some guys take a bit more time than others to understand that their whole world changed when they first heard that memorable phrase, “You’re a daddy!”
Peck will now have some not-so-quiet time in the Illinois correctional system to contemplate that fact.
Delaware maintains two different broad-based cultures within its smallish boundaries.
The northern part of the state is a near classic example of the old Northeast industrial city-suburban ring model. The southern part of the state is equally classic, with a mix of farms, small towns, and beaches.
Occasionally you see the clash of these two cultures exhibited in the legislation introduced into the General Assembly.
This week’s example is Senate Bill No. 29, sponsored by seven upstate legislators and one from Dover, the state capital in the middle of Delaware.
It would forbid dogs from riding in the beds of pickup trucks and similar open vehicles.
The fines for this new traffic offense would run from $25 up to $230, depending on one’s status as a repeat offender.
Now, I’m sure the upstate legislators have a good reason or two why they want this bill enacted into law.
Perhaps there’s a concern that somebody’s Doberman Pinscher would jump off and attack someone in a mall parking lot. Maybe the concern is that the dog would be bounced out of the back while bombing along the Interstate.
On the other hand, down where I live this kind of proposal will provoke hot-blooded reactions from a whole mess of folks.
There are few sights more common along Sussex County roads than a somewhat muddy pickup truck, with a black lab or Chesapeake Bay retriever poking his head out to the side to catch the air from behind the cab, maybe shifting to the other side at a stop sign.
(Well, chicken haulers might actually be a bit more common sight, but other than that, you get the idea.)
This bill will be attacked as un-American, and as a basic assault on a fundamental American freedom—the right to keep one’s big ol’ dog from messing up the inside of the truck.
The bill’s primary sponsor is a Senate Republican, and the bill was assigned to the Senate Agriculture Committee. These two facts combined will most likely produce only one result:
Nothing’s going to happen with Senate Bill No. 29.
It just so happens that the Democrats dominate the state senate, and downstaters predominate on the Agriculture Committee.
That doesn't mean Senate Bill No. 29 won't be helpful to some legislators. There are at least two practical reasons for that statement:
(a) Someone from upstate will be able to campaign for re-election on the fact that they introduced this bill; and
(b) Someone from downstate will be able to campaign for re-election on the fact that they killed this bill.
And that’s how the clash of the two cultures will be resolved on this issue.
In Oregon v. Kennedy, a 1982 decision about prosecutorial misconduct, the Supreme Court recognized the difference between simply being in a fight, and picking one.
This week the Eleventh Circuit Court of Appeals held that the Alabama state courts were under no obligation to eliminate that distinction.
Weaver Lee Hawkins, IV went to trial in 1998 on charges that he trafficked in marijuana and failed to pay a drug tax.
When his vehicle was originally stopped, there was a shoebox and a ziplock bag stored inside the passenger compartment. Part of the weed was inside the bag, and the rest was wrapped in plastic and stuffed in the shoebox.
The trial centered on whether anyone could smell the marijuana. That’s because Hawkins claimed he didn’t know anything about the drugs, even though he was driving the car.
The prosecutor argued that nobody could miss the distinctive aroma of the weed in the shoebox. The only problem was that the evidence technicians had re-wrapped the marijuana in thick plastic evidence bags, which were also heat-sealed.
(There’s no indication the technicians did this to maintain either that remarkable fresh scent or the weed’s potency, by the way. It appears to be standard evidence handling protocol.)
The prosecutor apparently thought the case was going to be lost if he couldn’t make sure the jury smelled the marijuana in the same storage condition existing at the time of the seizure. In a move reflecting, shall we say, a game approach to justice, he tricked the court reporter into providing him access to the sealed marijuana bags. He then cut open the bags, and put the marijuana in the shoebox.
The ploy worked. Hawkins was convicted. Shortly thereafter, however, Hawkins discovered the prosecutor’s bone-headed move, and filed for a new trial.
He won that motion, but failed in his attempt to bar a second trial on double jeopardy grounds. During the retrial, there were no similarly stupid tricks, and Hawkins was convicted again. After being sentenced to 10 years, he then appealed unsuccessfully to the Alabama appellate court.
Hawkins then took his claim for habeas corpus relief to the U.S. District Court, and won. The state of Alabama then challenged that ruling before the Eleventh Circuit, and obtained a reversal.
The Kennedy rule dealt with situations where prosecutors deliberately screw up some part of the case, in clear view of the defense, in order to goad the defense counsel into successfully moving for a mistrial. Unfortunately, this sometimes happens when the prosecution thinks it’s about to lose a case, but also believes it could win in a second trial if it had a chance.
Under Kennedy, if the trial judge concludes that picking the fight with the defense was part of a plan to obtain a mistrial, it can bar the second trial instead. The accused then walks, based on the wrongdoing of those who pushed the legal envelope too far.
However, in Hawkins’ case the prosecutor’s screw-up wasn’t aimed at instigating a mistrial motion:
Unlike Kennedy, this case involved hidden misconduct. The prosecutor's conduct was concealed; the conduct was intended to obtain a conviction, not to push the defendant into moving for a mistrial before verdict. The prosecutor's misconduct in this case is materially different from that described in Kennedy and is not -- to say the least -- clearly covered by the Kennedy rule.
In addition, the Circuit’s review of the case was limited by the fact it came to the court under the Antiterrorism and Effective Death Penalty Act (AEDPA). While Hawkins argued for an extension of the Kennedy rule to his case, AEDPA limited his chances for creating any groundbreaking rulings to deal with this kind of prosecutorial misconduct:
Congress through AEDPA has limited the ability of federal courts to grant a writ of habeas corpus. We are limited to those cases where the state court reached a decision that was contrary to, or an unreasonable application of, clearly established federal law as set out by the Supreme Court. This case is not one of those cases. The federal courts, under AEDPA, lacked the authority to interfere with the Alabama conviction.
Hawkins will now stay in jail.
In footnote 4, the Circuit Court also made this comment about the AEDPA:
To have their decisions protected by AEDPA from federal court interference, the state courts need not be innovative or prophetic about the direction the Supreme Court will go and go there first. The state courts must fully, faithfully and reasonably follow legal rules already clearly established by the Supreme Court of the United States. The state courts cannot narrow the Supreme Court's legal rules, but state courts are not obliged to widen the rules. Whatever AEDPA is or was intended to be, AEDPA is no Congressional command for activism in the state courts.
From this and the other AEDPA decisions I’ve read, it seems like this case is a good example of the Federal courts respecting Congressional intent. Congress wanted to reduce some of the second-guessing that can sometimes occur when a Federal court reviews a state court’s decisions. The Circuit Court’s reversal of the District Court here should act as a reminder of that purpose.
I’m no fan of overzealous prosecutors, but this opinion smells about right.
January 27, 2003
Taking the Plunge 2003
About 2,000 folks with more charitable impulses than working brain synapses will run into the Atlantic Ocean just off the Rehoboth Beach Boardwalk on Sunday, February 2, at about 1 p.m. Several thousand others will be on hand to hoot, cheer, and hold the towels and blankets.
She will maintain the family tradition, in which at least one of us immerses ourselves for the sake of Special Olympics.
Last year's event raised well over $300,000 in about 35 seconds.
I wrote a short post about the Plunge last year, and followed it up with a second piece describing the actual experience of diving into very cold water on purpose.
This time I plan to remain on the beach, and join my wife in holding the blanket for our daughter to run into as she sprints back to the beach.
If any readers of SneakingSuspicions click on the bear below and make a pledge, and also take the additional step of letting me know about it, I will duly note your participation here, with great thanks. There's a link at the Polar Bear site for online contributions, and you can also send contributions directly to the following address:
Special Olympics Delaware
University of Delaware
Newark, DE 19716-1901
In case you were wondering about taking the Plunge yourself, the ocean water temperature today is about 33 degrees Fahrenheit, and it's highly unlikely to warm up any by Sunday.
That's a bit beyond refreshing for most sane types, but it's your choice.
January 26, 2003
Winter at the Beach
Our dog Rocky joined my younger daughter and me in a walk around the Point this afternoon.
The Point is the tip of Cape Henlopen, where the Delaware Bay meets the Atlantic Ocean. We started on the Bay side, and walked around to the Ocean side to return to the state park's parking lot.
It was a great day for a stroll along the beach, as these two pictures show:
|
|
| This view looks north toward the point, from the Delaware Bay side. By the way, that's ice piled up along the shore edge, not saltwater foam. |
|
|
| This is one of the area's two lighthouses, along the inner breakwater. There is a small patch of open water beyond these ice floes. |
January 26, 2003
The Graceless Whipsawing of Maureen Dowd
I haven’t been reading Maureen Dowd lately. Something about her tone seemed just too consistently bitter to expect any enjoyment out of the process.
This morning was an exception, based on a short post by Glenn Reynolds noting her sorta-kinda retraction of her carrying forward the faulty TIME story about wreath-laying at the Confederate Memorial.
This portion of Dowd’s column was graceless, as it turned out. To the extent the piece expressed remorse at being caught up in TIME’s error, it was vitiated by the kind of whipsawing that also appeared in the main subject of her essay.
Is this column indicative of her usual work?
Consider the following:
The first whipsawing begins with the lead paragraph, in which Dowd makes a few snarky remarks about the Superbowl, the ads that run during the game, and how men are slaves to their appetites for snacks, beer, and sex.
Nothing too original here.
Then she veers off to note a USA Today story discussing alleged libidinal changes among men and women, a direct challenge to the stereotyping she relied upon in her opening.
In fact, the column’s first five paragraphs are only a long lead-in to the apparent object of her disaffection, Defense Secretary Donald Rumsfeld—except that even then she can’t help whipsawing a second time.
Dowd slams Rumsfeld for his recent remarks about Vietnam draftees, while carefully avoiding any mention of his written apology for those statements.
She then cites other “Rummy” expressions of macho attitude, and quotes both French and German officials for their reactions.
She shifts her intended irony toward Secretary of State Powell, calling him the Administration’s “flower child.”
The whipsawing takes place immediately, however, as Dowd’s talent for snide is aimed right back at the French and the Germans. She notes their “condescending yapping,” and compares the current situation to the 19th Century continental hauteur described in the novels of Henry James. In an unsubtle reference to 20th Century events, Dowd continues her attacks on the Europeans:
The allies have no moral authority on the subject of standing up to tyrants who invade their neighbors and gas their own people. And they have no interest, as American conservatives do, in helping Israel by getting rid of Saddam.
At last, Mr. Bush has found a compelling rationale for his Iraq policy: France and Germany are against it.
After reading this essay, I’m left wondering exactly what Dowd’s own position on the Hussein matter might be. She’s obviously no fan of the Bush Administration, but seems to take equal glee in slamming the Europeans who oppose the Administration’s urging for direct action against the Iraqi dictator.
Even if both sides deserve this kind of whipsawing snarkiness, where is she? What is Dowd’s solution? Is this just an opportunity to take shots at others without providing alternatives to those which Dowd seems to so dislike?
If so, there’s not much point in taking her seriously.
The whipsawing then concludes with the commentary about the wreath-laying. It also has the benefit of being wrong again, this time on the comparison she uses to blunt her grudging semi-admission that she should not have relied on the TIME story in a prior column:
Time has since corrected the story, saying [Bush] didn't revive the custom, but simply continued it.
I would still ask: Why keep a tradition of honoring the Confederacy while you're going to court to stop a tradition of helping black students at the University of Michigan?
As John Rosenberg could explain in detail, there was no such “tradition” of assisting students at Michigan, at least while giving that word its usual meaning. The point-giving challenged by the Bush Administration is of recent vintage, and it replaced a flawed unconstitutional attempt at increasing black enrollment.
In any event, if a government has a tradition of treating others unfairly because of their race, why should that tradition be respected?
On the other hand, respect for the dead common soldiers from both sides of the Civil War is a honorable tradition. I don’t recall Ms. Dowd challenging either of the last two Administrations about the same practice.
If this column is typical of her recent work, I’ll probably take a break from reading any more of this Dowdiness for awhile.
Note: for more on Ms. Dowd and others who have literally troubled themselves over the TIME error, click here and here.
January 26, 2003
Puzzle pieces
We really enjoyed watching Adaptation last night, the new movie starring two Nicholas Cages.
The film brought back together director Spike Jonze and writer Charles Kaufman, who made the fun but out-there Being John Malkovich.
When we saw Malkovich, my wife and I had very different reactions. I was fascinated, and she couldn’t stay awake.
This time we both liked the movie, and found ourselves laughing either lightly or loudly together during many scenes.
In one respect, Adaptation reminded me of one of the consistent elements of the movies written and directed by M. Night Shyamalan.
In The Sixth Sense, Unbreakable, and Signs, there was no cheating. Each piece of the plot needed to make sense of the conclusion was presented during the film. Sometimes the clues were hidden in plain sight, but they were there nonetheless. In each case most of our post-movie moments were devoted to confirming that fact.
Adaptation also gives legitimate hints throughout the movie about the ending, while remaining sufficiently ambiguous to leave viewers hanging on every word and visual clue.
Great puzzle. Great fun.
Contact Information:
Fritz Schranck
P.O. Box 88
Nassau, DE 19969
USA
fschranck-at-
sneakingsuspicions.com
Home Page
Table of Essays
Links to the Weekly Archives
Official small print disclaimer: This is, after all, a personal web site. Any opinions or comments I express here are my own, and don't necessarily reflect the official position of my work as a government attorney or any of my clients.
That fact may become obvious later on, but it needs to be said here anyway.
© Frederick H. Schranck 2002-2003
