I consider Obama’s presidency to be a mixed bag. There are things he has done that I support (Ending DADT, credit card reform) and things that I oppose (PPACA, Cash For Clunkers, GM Bailout, increasing CAFE Standards, offshore drilling moratorium). A lot of the things that really inflame fellow Leaguers (drone attacks) don’t particularly inflame me. There is at least one thing he has done that has sent me through the roof, however. Not because it’s of tantamount importance in the greater scheme of things, but because of how unnecessary it was and how I simply cannot put a positive spin on it.

I speak of the Administration going from “As a general matter, [we] should not focus federal resources individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.” and “We limit our enforcement efforts to those individuals, organizations that are acting out of conformity…with state laws.” to “The intertwined subjects of medical marijuana, Montana law and medical necessity have no relevance to determining whether the government has proven the crimes charged in the indictment … Marijuana is a Schedule I controlled substance under federal law … and can’t be dispensed under a prescription.”

I don’t expect much from Democrats when it comes to pot legalization. I expect less from Republicans not named Gary Johnson. The most that can be said is that McCain would have raided more dispensaries than Obama did. Yet, even if this is true, it’s not the raids themselves that have me up in arms about this. It’s the announcement that encouraged the businesses to form in the first place only to have the founders arrested later on. Enforce the law (which is legally right) or don’t enforce the law (which is morally right), but it’s very important that everybody is clear on which route you’re going to go.

If there is any confusion as to the relationship between the Ogden Memo, which suggested that enforcement would not occur, and the proliferation of the dispensaries that garnered exceptional legal liability, this is from the Great Falls Tribune:

Many people in the medical marijuana community believed the Ogden memo demonstrated that President Barack Obama had fulfilled his 2007 campaign promise to “not have the Justice Department prosecuting and raiding medical marijuana users.” {…}

In the span of just two years, the number of medical marijuana patients skyrocketed from 3,921 in September 2009 to more than 28,000 by the time the Legislature convened in January 2011. During that same period, the number of Montana caregivers authorized to grow marijuana for patients jumped from 1,403 to 4,833.

The problems that were occurring under Montana’s Medical Marijuana law shouldn’t be understated. They were significant and well known throughout the Mountain West region. So much so that the debate within Montana - a state in which MedMar passed a public vote by a substantial margin - was whether it should be mended or ended. The raids occurred while this debate was happening - literally, while a state senate panel was voting, the DEA was arming up.

Montana’s first registered dispenser died in prison about six weeks ago. His son is serving a five year sentence, his wife is serving two (for bookkeeping).

Being the federalist that I am, my view is that even if Montana law was spinning out of control it should have been allowed to remain a Montana issue. If the federal government was unwilling to allow it to continue, however, I would have understood that to if an announcement had been made to that effect. But whatever should have happened, this should not have happened. Maybe we should have a completely black and white view of the law and if it’s illegal it should be illegal. Maybe there’s room for gray. But the rules, official or unofficial, should not be changed after legitimate business licenses are allowed to be issued.

A little bit back I commented on teacher sex with students and suggested that, in the case of inverse genders the man would not get off as lightly as many of the women. Well, here is a counterexample:

A former North Texas high school teacher was convicted Friday and sentenced to five years in prison for having sex with five 18-year-old students at her home.

The Tarrant County jury decided on the sentence for Brittni Nicole Colleps, 28, of Arlington after nearly three hours of deliberation. It took jurors less than an hour to find her guilty earlier in the day of 16 counts of having an inappropriate relationship between a student and teacher. The second-degree felony is punishable by two to 20 years in prison per count.

The former Kennedale High School English teacher had sex with the students at her home over two months in 2011, authorities said.

Colleps is married and has three children. She turned herself in after a cellphone video of one encounter that involved multiple students emerged. That video was shown a trial.

Which I guess just goes to show, we might take women having sex more lightly than men, or maybe not, but definitely not freaky sex. Probably best not to have five partners, but if you do, not all at once. Eighteen or no.

Before I start with this story, a personality tick of the Redstone Gazette: The Gazette has a tendency to mention the salaries of public officials in articles where the public official is important. I’ve never really seen that before, but the paper does it with such regularity that I think it is part of some policy (or something one of their main writers or editors simply wants done). It would be an interesting angle for a conservative paper in a conservative place, but Redstone is pretty heavily blue and the newspaper’s editorial staff is, as near as I can tell, no different. An interesting thing about this policy is that it can be oddly helpful at times. Knowing that the county executive gets paid more than the mayor, but that the city councilmen get paid half of what the county commissioners do, helps put things in perspective when it comes to who is running for what. But it’s a little weird to read, in the middle of an article about the schools, “Superintendent Davis, who gets paid $75,343 a year, announced…”

Anyhow, today there was an article about the city courts being so backlogged that they are on the verge of running up against “speedy trial” requirements and will start having to dismiss charges. This goes back to a previous story involving former Judge Mike Balasevic. Balasevic, who I was informed made $63,455 a year, resigned very suddenly last year. I was also informed that he had a part-time job with the school district as a janitor, making $11,575 a year (okay, I’m making the specifics up, but those are the ballparks). He was resigning as judge, but not janitor. This was an unbelievably weird article to read, because I’d never heard of a city judge working as a janitor, and quitting one job while holding on to the other… what the hell?

I should have seen the next part coming: Federal indictment. Bribery, of a pretty crass nature. They had him having taken roughly $14,000 a couple of years back (making more from corruption than cleaning). He’d later to at least ten bribes at a few hundred dollars a piece (and a few requests that the defendant put up a yard sign for his re-election). He plead guilty to a single count and received probation and $5k restitution. Anyhow, everything apparently screeched to a halt while this was going on until they found a replacement. Hence, defendants about to go free.

As far as I know, he still has that janitor job. I’ve never actually seen him at the schools. A teacher that I have substituted for more than once is named Mrs. Balasevic. I assume a relation of some sort, but I’m not going to ask (Mrs. B has actually offered to write me a letter of recommendation if I shift to subbing down here in Callie).

Oops:

Inmates at the Milner Ridge jail were able to watch clear-as-day commercials on an explicit channel that was otherwise blocked by their satellite TV service, Justice Minister Andrew Swan said Thursday.

“Apparently, on that blocked channel, there were periodic advertisements running from 30 to 90 seconds,” Swan said.

“And immediately on becoming aware of this, the officials at Milner Ridge called the service provider and made immediate arrangements to make sure that didn’t recur.”

The jail officials only became aware of the problem during a Jan. 9 tour of the facility by Tory justice critic Kelvin Goertzen. About 10 inmates were watching hardcore programming in a common area, Goertzen said, and when a jail guard turned off the TV, they managed to turn it back on again briefly with a remote control.

A few things jumped out at me about this: First, were the inmates unaware that there were visitors? I realize that we’re not dealing with the most future-time-oriented people, but you’d think that this sort of thing might cause problems.

More broadly, though, is this really any sort of outrage? I mean, I get it that they are in prison you don’t want to make things too comfortable for them. But the sexual frustration of prison famously manifests itself in very unfortunate ways. It really seems to me that there are worse things than pornography. There are suggestions that pornography reduces rape, but even if we disbelieve that there is not much to suggest that it encourages it. It may not make much of a difference, it may alleviate the tension that causes all sorts of bad things, but humans are sexual beings and I think there have to be larger concerns than this.
One more thing. Here’s the opening paragraph:

It appears a technical glitch is to blame for a display of explicit sex in a Manitoba jail that aroused concerns by the Opposition Progressive Conservatives.

There were probably a lot of grins and groans in the newsroom over that one.

It’s a bit weird to be writing a post about lawsuits that occurred and were resolved years ago, especially since I am not the lawyer that Burt is. But the cases I am writing about had a lasting effect on my view of politics and its followers. And rather than try to stuff everything into a single post, I am going to write about the cases here, and then later why these cases were significant to me.

Conflict:

Around the turn of the century, there was a push towards cleaning up movies. The push did not come from studios in Hollywood, but rather entrepreneurs in (mostly) Utah (one of which, I should add, was named Huntsman). The two highest profile companies were ClearPlay and CleanFlicks. Both of these companies, as well as a third and fourth, were based out of the Beehive State, so I will occasionally refer to them as “the Utah companies.”

ClearPlay sold DVD players that would (with programming) skip over the more unsavory parts of movies. They would have editors go through, clean up the dirty parts, while being sure not to interfere with the telling of the story. They originally boasted 150 movies with a couple dozen being added each month. Concerned parents would buy the DVD through a regular outlet, download the filters, and then be able to watch movies with their kids (or just by themselves) without fear of seeing something they would rather not see. CleanFlicks was slightly different, having opened up VHS/DVD stores and sold the clean versions directly. There was a third company, whose name I cannot find but will call ATC, wherein you would send in the VHS or DVD you bought, which they would destroy, and send you back a clean version.

Thsi created a lot of consternation in Hollywood, and before long, lawsuits were filed by both the Directors Guild Association (DGA) and a little bit later the Motion Picture Association of America (MPAA). Both rested their initial claim on Freedom of Speech. They were being censored. Their artistic vision was being tampered with. There were various op-eds suggesting that there was a danger in allowing people to automatically avoid exposure to things they found unsettling because there is artistic power in being unsettled.

Resolution:

It was primarily on the copyright argument that they made some headway and won their suit against CleanFlicks. Because CleanFlicks had pre-emptively sued, their case was further along. However, before a decision could ultimately be made with ClearPlay, congress clarified the copyright rules expressly to allow what ClearPlay was doing. ClearPlay is still around. CleanFlicks lost their business model and went under. Trilogy Studios, who had initially tried to sell their ClearPlay-like product directly to the studios, never tried to sell their product directly to consumers. If I recall correctly, ATC folded early under the pressure of the lawsuits and never got a ruling one way or another.

My Thoughts

In the abstract, I actually sided with the Utah companies on this. Which is to say, I believe that they were providing a service and a separate product from the studios (namely, a player). The only one I hesitated to that about is CleanFlicks (which I will get to in a minute). While it was the case that ClearPlay was making money around the studios’ works, the same can be said for the makers of DVD players in general. DVD player producers have to pay all sorts of patents to make their product, but as far as I know they do not have to pay the studios themselves. It is considered mutually beneficial. I doubt that there is even a contract involved. There is, however, an argument that they waived any right to money when they produced a product specifically to be played in a DVD player. I am not sure why that waver would not also apply to a ClearPlay DVD player, however.

With CleanFlicks it is a bit different. They were selling a product with someone else’s trademark on it, that was mostly full of someone else’s material. And they were making a profit by doing so without any sort of contract with the studio. What I don’t fully know is the extent to which you have to have a contract with a studio in order to sell their product, so long as you paid full retail price for the original. I know this applies to individuals (they can’t prevent me from selling my old DVDs) and I’m not sure how it is different for corporations.

CleanFlicks’s major liability, however, should be the original artistic integrity argument. Since ClearPlay and ATC both required an affirmative step and both involve possessing or having possessed the original product, it can be safely assumed that the person who purchases CP’s or ATC’s services are aware that they are not getting the original product. Meanwhile, someone can stumble into CleanFlicks without really knowing what they’re getting. I’m not sure the degree of disclosure required, but that we even have to talk about it makes me understand where the studios are coming from. So I could go either way on this one.

I would support, I suppose, a disclosure requirement for ClearPlay and (if they still existed) ATC, not only to remind people that they are getting an altered product but also so that the clean-up editor gets appropriate credit for his work. As that is an artistic enterprise, I do believe such disclosure should be appropriate. But, as they often do, I felt that the studios simply went too far. Not only failing to offer a service that people clearly wanted, but preventing anyone else from doing so. And as far as the copyright argument goes, while yes ClearPlay gets money off the deal, not a penny is denied to the studios that is owed to the studios for the product they provided. Their argument, to me, has the stench of their common argument that they have a right to control what someone does with a product after they purchase it. I believe this is true insofar as preventing people from copying-and-distributing, but that’s about the extent of it.

While with ClearPlay and ATC, you had to affirmatively send

An interesting look at the intersection between automobiles, Justin Bieber, IP law, and comic books:

Last year, DC Comics, a subsidiary of Warner Bros., sued Mark Towles, who operated a business called “Gotham Garage,” which sold imitation batmobiles. DC, represented by attorney Andy Coombs, accused Towles of violating its copyright and trademark and confusing the public into thinking that his cars were authorized products.

Trademark is one thing, but can an automobile design really be copyrighted?

According to U.S. District Judge Ronald Lew, it can if it’s really special.

Towles moved to dismiss the lawsuit, arguing that the Copyright Act affords no protection to “useful articles.”

But Judge Lew begs to differ, ruling that Towles “ignores the exception to the ‘useful article’ rule, which grants copyright protection to nonfunctional, artistic elements of an automobile design that can be physically or conceptually separated from the automobile.”

In other words, the judge looked at the Batmobile and found there could be elements there that served no real purpose except it was pictorially unique. The judge will likely begin a fact-finding examination, such as whether the car really needs to be bat-shaped for it to be a crazy, cool ride.

ED Kain asksOn a side note, wouldn�t you think the occasional custom Batmobile would be just about the best sort of free advertising DC Comics could hope for?

It is! Right up until it�s being drunk driven, or involved in some sort of accident.

On The Drew Carey Show, Drew won a Batmobile in some contest. He lost it when he was caught having sex in it because apparently the car came with a �morals clause.�

In all seriousness, the benefits of advertising are probably outweighed by potential hazards and potential lose revenue if they ever decide to work with a carmaker on a limited-release or something-or-other. And, more to the point, copyrights that are not defended are lost. So, in a weird way - that makes some sense after deep thought - Warner Bros is compelled to actually defend this.

And, as far as the free advertising goes: Batman, as an entity, doesn�t really need the advertising. It already has brand recognition.

Behind all of this is the bigger stink: is that DC (or anybody) still owns the rights to Batman at all. Of course, that would not likely have any bearing on the physical likeness of the Batmobile, which is more recent (and would, of course, cover a lot of different designs).

I mentioned in an old Linkluster post regarding an old court ruling that allowed a police department to discriminate against people that scored really well on their variant of an IQ test. This spawned a conversation between Kirk, Brandon, Phi, and myself.

“It�s not okay to discriminate against dumb people, so why is it okay to do it to those who are smart?” -Kirk

“We see here that they used it to discriminate against people who did very well, but they almost certainly use it against people who did poorly. So somehow or another, they have already justified the disparate impact of the test.” -Trumwill

Reading over another account of the case, I am relatively sure that we all actually missed what’s really going on here. I touched on it in my comment, but half-accidentally. I initially actually believed the departments claims of concerns over turnover due to boredom or that it was a sort of personality profiling. But the more I think about it, this is less likely something despite disparate impact, but rather it was done precisely because of disparate impact.

We all know the legal problems with IQ tests: they have a disparate impact on minorities. This can be overcome, but only with a justification process that can be expensive and arbitrary. So organizations don’t like to do it. However, if you can devise an IQ test that doesn’t discriminate against minorities, then you don’t really have a problem. Therefore, instead of accepting scores above a certain threshold, you accept scores within a particular target zone. That means excluding low IQs (more likely to be Hispanic or black) and high IQs (more likely to be white or Asian). That, to me, makes a lot more sense than the personality profiling (with is self-deprecating in the extreme) or a disdain for high IQs (police departments are more frequently asking for more education rather than less). From a police departments perspective, eliminating a few high-IQ people from consideration is worth the cost of being able to eliminate those at the low end of the spectrum. From a utilitarian standpoint, that actually makes sense to me.

What would make things really interesting is if a bunch of Asian-Americans sued.

—-

This post is going to be treading on dangerous terrain. It’s unavoidable. All I ask is that we avoid derogatory remarks and derogatory references to stereotypes. Let’s assume the following for the sake of this post:

(1) An IQ test, or a test that can be directly tagged to IQ, will have a disparate impact on Non-Asian Minorities.

(2) The reason for #1, be it genetics, education disparities, cultural disparities, or what-have-you, are not particularly relevant to the discussion.

(3) Because of (1), cities are loathe to employ such tests because of the hurdles required to justify the disparate impact. But sometimes they do it anyway because regardless of #2, they see a benefit in excluding people below a certain threshold on such tests.

Imagine yourself in a coffeehouse, book store, or some other third place. A man who appears to be in his late-twenties walks up to you and says, “Excuse me sir/ma’am, but do you have a cell phone?” Do you:

(a) Say “buzz off”

(b) Say yes, suspiciously.

(c) Say yes and ask why without suspicion.

(d) Say “go away”

(e) Say yes, grab your cell phone, and hand it to the stranger.

My answer, I must confess, would be (b). I wouldn’t lie or be so rude as to tell them to buzz off, but I guess I am just suspicious of strangers walking up and asking me something like that. It’s not necessarily a rational thing, but once I did loan my cell phone to a stranger when they proceeded to use it for twenty minutes trying to get a hold of somebody. I wasn’t in a hurry, but my plan was not to hang around where I was for twenty minutes. Then being the villain anyway for asking for my phone back before they were quite done.

I was the late-twenties guy (I’m not in my late twenties, but I look like I am) and asked that to a guy at a coffee shop in Redstone. He went with (e), though before he could actually give me the cell phone I told him what I was wanting (”Could you call my cell phone? I can’t find it.”). He called the cell and proceeded to walk around the coffee shop and help me find it.

It’s not unlike back when I was living in Deseret. Shortly before I left Colosse, my car was broken into and a few thousand dollars worth of stuff was taken from my car (it’s a long story as to why I had a few thousand dollars worth of stuff in my car). I called the Colosse PD, who couldn’t have been less interested if they had tried. I had to basically force them to take the serial number of my laptop in the event that it resurfaced at a pawn shop.

Flash forward to Deseret and I left my jacket somewhere. In my jacket was a checkbook. A couple months later, someone wrote a check to a pizza delivery place with said checkbook. I’d already canceled the account that the checkbook was cancelled to (something I had intended to do anyway, since the bank had no branches in Deseret) but the loss of my last checkbook expedited matters. Anyhow, the pizza delivery place sicked the credit collection dogs on me. In order to get out of it, I had to file an affidavit.

I apologized to the detective for taking up his time. But his response couldn’t have been more different from the Colosse PD’s. He got a subpoena for the cameras for the day in question. They didn’t have that, so he interviewed employees there. He gave me updates every two or three days. I didn’t stop him because I was interested in retrieving the jacket if it was at all possible. After about a week, he apologetically said that he had burned all leads.

Of course, we can ask “What else would a detective in small-town Deseret actually do with his time?” No doubt, there is some truth to this. But I became acquainted with the Detective over time because he lead a handful of drug arrests at the apartment complex I was living at. He was not an unimportant guy. Flash forward a little later after my car had been broken into and the culprit arrested, a DA visited me personally to ask if the plea bargain they had worked out was okay with me or if they should pursue it to the maximum extent of the law (I told her the plea bargain was fine).

A while back, Katie Alison Granju wrote about Tennessee changing its divorce by way of court decree forbidding judges from forbidding “sleep-overs” between a parent and significant other, post-divorce. Granju isn’t sure what to think:

As for me, I admit that I�m kind of torn on this one. On the one hand, I do struggle with a deep-seated, somewhat kneejerk distaste for the idea of kids waking up to mom or dad�s latest hook-up reading the sportspages in the breakfast nook. Additionally, I don�t think that a parent who has gone through the hell of seeing his or her marriage end in whole or in part due to infidelity should have to endure the secondary pain of begging a judge to keep the third party in the marital break-up from spending the night in a home where the children are present.

But on the other hand, a blanket ban is clearly discriminatory toward gay parents, who have no ability to marry their romantic partners in Tennessee, and thus, under a blanket ban they wouldbe de facto barred from ever again having a meaningful family relationship with another adult until the children were grown and gone. Plus, I�m kind of with the libertarians on this one in that I don�t want the courts telling me how to raise my kids and run my household unless and until I clearly demonstrate that my behavior is causing real harm to my offspring.

I find the reasoning in the second paragraph to be a little weak. This isn’t about an automatic ban, but rather one that a judge can issue or not issue. Presumably, a gay couple would be more likely to say “live and let live” since neither one of them can marry (in Tennessee, at any rate, at the present time). It’s straight couples, where marriage is at least an option, where one partner or the other might say “You/we can wait until we’re remarried.”

But it is an interesting question and I guess in the overall I am similarly conflicted. Bans can be enforced if the other parent can prove some specific harm, but it’s hard to prove harm without making divorce proceedings much more acrimonious than they would already be. “My soon-to-be former spouse is a slut, your honor.” or even better, “My ex-husband has demonstrated a history of having bad taste in women. Uhmm, except me!”

One of the thoughts that comes to my mind is that such a ban is convenient to ask for in the event that one side or the other remarries quickly. You know, if maybe they already had their spouse picked out before the papers were files. It would strike me as a double-whammy for a cheater to turn around and say “No sleepovers until you are re-married like I am now!”

On the other hand, in cases of joint custody, it doesn’t seem unreasonable to say “Hey, you can have the sleepovers when the kids are at the other parents’ house.” Of course, that only works if the kids bounce back and forth. It becomes a little more complicated when one does have the kids around almost all of the time.

I think I lean slightly in favor of allowing sleepovers absent the demonstration of harm of one sort or another. I can think of instances where I would not want it to happen, but the scenarios are so variable and diverse that I am not sure how much faith I would have in a judge correctly sussing it out.

From Arapahoe County, Colorado:

A CBS4 investigation has learned that former Arapahoe County Sheriff Patrick J. Sullivan Jr. has been arrested, suspected of trafficking methamphetamine, a controlled substance.

Sullivan, 68, was the elected Arapahoe County Sheriff for 19 years. He retired in 2002 and went on to become director of safety and security for Cherry Creek Schools. He was a nationally-regarded law enforcement figure and in 2001 as the National Sheriff Association named Sullivan �Sheriff of the Year.�

A more complete story here, with an ironical tidbit: he was sent to a jail named after.

The story gets worse from there:

There were other developments in the Sullivan story Friday. Denver Police reopened an investigation into the death of Sean Moss, a case that led to police interviewing Sullivan earlier this year about his relationship with Moss.

The 27-year-old�s body was found face down in the South Platte River in January. A DPD detective interviewed Sullivan after Moss death after learning Sullivan and Moss were friends and that Sullivan had bailed Moss out of jail two weeks earlier.

When CBS4 reported on the connection Thursday, a Denver Police spokesperson said it was a �closed case� and there was �nothing suspicious� about the Moss death. Friday, the Denver Police Department labeled that a �misstatement� and spokesperson Sonny Jackson said there is an �active, ongoing investigation� into Moss� death.

Long Island University Professor says that Rudolph the Red-Nosed Reindeer was bullied, others agree and disagree:

Millions of viewers have reviewed the evidence. So, was Rudolph bullied?

�What they do to him is bullying especially what they�re teaching the kids now as big as it is in the schools, but yes, he was definitely bullied,� Audra Bamford said.

�We just watched it the other night and I was telling my kids that�s not how we treat our friends,� Ronette Hillenbrand added.

�No I don�t think he�s being bullied,� Dr. Friday said. �I think the problem lies with Santa. He�s just not hugging this poor defenseless thing.�

Santa’s involvement (or lack thereof) hadn’t really occurred to me. Perhaps it’s a telling indictment of how the expectation isn’t even there that authority figures will help.

I think it all depends on how far you stretch the definition of “bullied.” You can limit it to physical violence. You can broaden it a little to include threats of physical violence. You can broaden it even further to taunts and ostracization. I think all of these things apply as bullying of some sort, though some of these forms are more serious than others. I remember back in college I had a discussion with a female classmate wherein she argued that girls are worse bullies than men because guys rely on violence while girls are more creative and hit other girls where it really hurts: self-esteem. I countered that (a) violence hurts and (b) violence in boys is not unrelated to self-esteem. On the second point, she said that the same was true of girls and it was nothing like the self-esteem hit of being accused of being fat. We never came to an agreement. I think there was a fundamental misunderstanding of how boys and girls respond to accusations of weight (which hits girls far harder than boys) and physical weakness (the other way around).

As for Rudolph, I am inclined to agree with Dr. Giuliani that yes Rudolph was bullied, but disagree with his assertion that the movie promotes violence. The attitude towards the taunting of the other reindeer is treated with uniform negativity. If it does anything wrong, it’s to perpetuate the notion that the bullied are bullied because they are “special.” Which sounds nice, of course, but… doesn’t exactly ring true.

On the subject of bullying, Dr. Phi wonders to what extent “helicopter parenting” has actually helped alleviate the bullying problem from years past.

According to a study, criminals are not so forward-thinking as to consider the punishment for their crimes:

The findings suggest that 76% of active criminals and 89% of the most violent criminals either perceive no risk of apprehension or are incognizant of the likely punishments for their crimes.

Of course, you could look at that the other way: Punishment acts as a deterrent for nearly a quarter of criminals and over a tenth of the most violent criminals. Of course, to really get their attention, the level of punishment may be such that it would be unconscionable. In any case, I find the lead-in to this to be problematic:

The tenet that harsher penalties could substantially reduce crime rates rests on the assumption that currently active criminals weigh the costs and benefits of their contemplated acts. Existing and proposed crime strategies exhibit this belief, as does a large and growing segment of the crime literature.

Actually, it can just as easily rest on the notion that a criminal in jail isn’t committing crimes against the general public while in jail. I’m not saying that I agree with this, but it’s there. As some proponents of the death penalty are inclined to point out, the only way to make sure that someone never murders again is if they are dead. It’s one of the reasons why death penalty opponents should vigorously support real life with possibility of parole sentencing.

There’s a rather disturbing case out of North Dakota involving a student at UND facing disciplinary action on a rape that the police actively believe did not occur. It’s not just that the police are failing to press charges, but rather, they are wanting to prosecute the accustor for giving a false statement.

Now men, broadly speaking, and often conservatives, will look at this case with due outrage. And, to be honest, they’re not all wrong here. The recent moves by the Obama Administration to needle schools into loosening the standards of evidence to make it easier for schools to take action make a lot of undesirable things possible.

On the other hand, we don’t know why the police are going after the woman, what lie they might have caught her in, and so on. It could be that the evidence against her is pretty thin. We shouldn’t necessarily assume otherwise. Horrifying accusations on overreaching retaliation against accusers has been known to happen.

Rape really is one of those cases where there is a zero-sum balance. Made more complicated by the disparity in gender between accusor and accused. As a man (in the United States, at any rate), it was never likely that I would be sexually assaulted. Likewise, it is unlikely that a woman would ever be falsely accused of rape. This always leads both sides to minimize the danger of the other. If you’re going to err in one direction or the other, err against them!

Our arguments are always buttressed by our perceptions of likelihood. One in four women are raped! Half of rape accusations are false! When, in reality, we just don’t know all that goes on. Both of these numbers are disturbing. Putting the thumb on the scales to “encourage women to come forward” by refusing to name them even in cases where they have long been discredited (Chrystal Mangum) may encourage rape victims to come forward, but it also provides protection for people who would make such accusations frivolously. And “but no woman would do that!” sounds pretty hollow. The person saying that wouldn’t do it, but there are some crazy women out there. Likewise, though, the one-in-four estimation is truly horrifying. And demands action. And our system has a horrible history of not taking claims of rape seriously.

The easiest way out of this mental logjam is, of course, to simply choose to disbelieve whichever statistics are inconvenient to your perspective. One in four women aren’t raped. They only think they were because they had sex they later regretted. Or the sampling is flawed. Half of rape accusations are not false, and here are the flaws with the study. And to be honest, I couldn’t begin to sort it all out. And since almost everybody has a vagina, and therefore is most likely to be a victim or rape than ever falsely accused of it, or a penis, and therefore is more likely to be falsely accused than raped, everyone has a skin in the game.

So. Err against them.

As many of you are aware, before it was released, someone got a hold of the iPhone 4 and sold it to Gizmodo. They are being charged with theft:

The San Mateo County District Attorney’s office has filed criminal charges against two men who obtained a prototype iPhone 4 last year and sold it to the gadget blog Gizmodo, CNET has learned.

Steve Wagstaffe, the district attorney, said in an interview today that his office has filed misdemeanor theft charges against Brian Hogan, the man who allegedly found the prototype in a bar after it was left there by an Apple engineer. An arraignment has been scheduled for August 25.

The second man charged is Sage Robert Wallower, who allegedly contacted technology sites last year while shopping around the iPhone 4 prototype. Wallower, a former Navy cryptologic technician who was scheduled to graduate from UC Berkeley in 2010, told CNET last year in an in-person interview at his home: “I didn’t see it or touch it in any manner. But I know who found it.”

My first instinct was that this doesn’t sit right with me under the concept of “Finders/Keepers.” On further reflection, though, there are definitely limits to the applicability of the rule. I can’t just take over a car that is left in a parking lot overnight, for instance. So at the very least, there would need to be some attempt to contact the owner. Except, that’s what these people did:

So you recognize this handset as an iPhone�it looks and works like an iPhone, and it’s even disguised as an iPhone 3GS. It’s not password protected (!), it’s running an OS that looks like the normal iPhone OS only a little different, and it has Facebook and other apps running. (Our source says he didn’t poke around too deeply.) Hours later�before the next morning, actually�it didn’t work.

The assumption is that it was wiped remotely as soon as either the engineer or Apple realized it was lost�probably later that night, not just to lock down the features of the new hardware, but to avoid spilling the beans on the new operating system. So, with a bricked phone in hand, an obvious course of action would be to call Apple. And as we reported before, that’s exactly what happened�our source started dialing Apple contact and support numbers. He was turned away, and given a support ticket number.

By bricking the phone, Apple protected their secrets. But it seems to me that morally, if not legally, by doing so they sacrificed any reasonable expectation of getting it back.

Back before I had a smartphone, I had a Pocket PC. They allow you to put a message up on start-up. Mine said that it was the property of Will Truman, here is the number he can be contacted at, and there will be a $x reward for its return (the number went down over time). I didn’t have that message on my smartphone, because I figured that if nothing else I could call it if it were lost (it was lost once, found on the floor of a movie theater and generously kept for me). Had Apple done this, they likely would have gotten their phone back. From the sound of it, they would have even without a reward.

But they chose to brick it.

Finders, keepers, in my view.

Apparently, New York is having a problem in collecting bail bond forfeitures.

A couple years ago the they had a good article on the internationally unusual nature of our system:

�It�s a very American invention,� John Goldkamp, a professor of criminal justice at Temple University, said of the commercial bail bond system. �It�s really the only place in the criminal justice system where a liberty decision is governed by a profit-making businessman who will or will not take your business.�

Although the system is remarkably effective at what it does, four states � Illinois, Kentucky, Oregon and Wisconsin � have abolished commercial bail bonds, relying instead on systems that require deposits to courts instead of payments to private businesses, or that simply trust defendants to return for trial.

Most of the legal establishment, including the American Bar Association and the National District Attorneys Association, hates the bail bond business, saying it discriminates against poor and middle-class defendants, does nothing for public safety, and usurps decisions that ought to be made by the justice system.

Here as in many other areas of the law, the United States goes it alone. American law is, by international standards, a series of innovations and exceptions. From the central role played by juries in civil cases to the election of judges to punitive damages to the disproportionate number of people in prison, the United States has charted a distinctive and idiosyncratic legal path.

It seems to me that the question of whether it discriminates against the poor and middle-class is if this innovation has resulted in requirements for higher bails since the judges know that bondsmen will put it up. If so, it causes a price spiral that discriminates against defendants the same way that they would be discriminated against if they had to put the money up themselves. But if that’s not demonstrably the case, it seems like it would help them by allowing them to get out of jail (or get their loved ones out of jail) in ways that they wouldn’t be able to, otherwise. It’s not unlike those paycheck loan places, except reserved more for a rather specific emergency.

Wilson Quarterly has a good (and more sympathetic) look at the industry:

Most people don�t realize how many fugitives from the law there are. About one-quarter of all felony defendants fail to show up on the day of their trial. Some of these absences are due to forgetfulness, hospitalization, or even imprisonment on another charge. But like Luster, many felony defendants skip court with willful intent. The police are charged with recapturing these fugitives, but some of them are chased by an even more tireless pursuer, the bounty hunter.

Bounty hunters and bail bondsmen play an important but unsung role in a legal system whose court dockets are too crowded to provide swift justice. When a suspect is arrested, a judge must make a decision: set the suspect free on his own recognizance until the court is ready to proceed, hold the suspect in jail, or release the accused on the condition that he post a bail bond. A bond is a promise backed by incentive. If the suspect shows up on the trial date, he gets his money back; but if he fails to show, the money is forfeited. We don�t want to deprive the innocent of their liberty, but we also don�t want to give the guilty too much of a head start on their escape. Bail bonds don�t solve this problem completely, but they do give judges an additional tool to help them navigate the dilemma.

Bail might be a rich man�s privilege were it not for the bail bondsman. (Many bondsmen are women, but �bondsperson� doesn�t have quite the same ring, so I�ll use the standard terminology.) In return for a non-refundable fee, usually around 10 percent of the bond, a bondsman will put up his own money with the court. A typical bond might run $6,000. If the defendant shows up, the bondsman earns $600. But if the defendant flees, the bondsman potentially can forfeit $6,000. Potentially, because when a fugitive fails to appear, the court gives the bondsman a notice that essentially says, �Bring your charge to justice soon or your money is mine.� A bondsman typically has 90 to 180 days to bring a fugitive back to justice, so when a defendant jumps bail, the bondsman lets the dogs loose.

In addition to (perhaps) helping people afford to get out of jail when they otherwise wouldn’t be able to, this strikes me as a rather helpful sort of outsourcing. Hunting low-level fugitives is something that it’s rarely going to be worthwhile to do, from a financial standpoint. But we create a system that makes it worthwhile… to somebody.

Freakonomics also has a podcast/article on the topic.

UPDATE: Another interesting article on the subject from Las Vegas, where Bail Bondsmen are upset at Marshals, who are allegedly illegally offering bonds.

Here’s a story that popped up a while back that I didn’t get the chance to cover at the time, but it seems appropriate today. It came up in a discussion regarding cops who insist that you can’t videotape their abuses.

The deal is that, in a case that worked its way (slowly) to the Ohio Supreme Court, the following things happened:
#1 - A guy had the temerity to contest his speeding ticket. This, as we’ve covered before, angers prosecutors and judges who feel that anyone not pleading guilty is “wasting their time” and want to come up with any way to punish the impudent peon for doing so.
#2 - The radar gun evidence was thrown out of court. The reason? The cop couldn’t produce documentation to prove he was certified to operate the radar gun correctly.
#3 - At this point, the cop claimed that nevermind the radar gun, he was “trained to estimate speeds” during the police academy training and thus was able to “estimate” that the defendant was moving at least 70 mph (in a 60mph limit zone).

#4 - the Ohio Supreme Court bought this hook, line, and sinker.

The training the court refers to is given by the Ohio Peace Officer Training Academy, and its rigor is questionable. To pass the test, an officer has to determine the speed of a moving vehicle by watching cars go by and estimating their speeds. Guess the speed to within five miles per hour of the radar-gun-detected speed and you get a certificate and are officially “trained.”

As near as I can tell, this opens the door for the Badged Highwaymen of Ohio to “estimate” anyone’s speed they want, write the ticket, and give the citizen zero ability to contest their ticket later (since the “officer’s word is good enough”, nevermind the “innocent until proven guilty beyond a reasonable doubt” standard normally employed in criminal cases). Can someone help me figure this one out?

{In keeping with the policies of Hit Coffee: this post is about judicial impropriety, the appearance of same, and its contributions to public loss of faith in the judiciary. Please keep your comments to those grounds. No license to slag upon republicans, democrats, gay, straight, lgbt, polka-dotted, or anyone else is warranted or implied.}

Over in Slate, an article by Dahlia Lithwick regarding why Vaughn Walker’s late-breaking announcement that he is gay should not be used as a reason to re-try the Prop 8 case on the grounds that Walker should have either (a) recused or (b) revealed his preferences pre-trial so that the question of recusal could at least have been brought up in court.

Meanwhile, the recent revelations that Clarence Thomas’s wife is/was a lobbyist with Tea Party organizations and other right wing groups making sizable sums per year, and that Clarence Thomas himself has direct links to the Citizens United group… who he happily helped rule, in a 5-4 decision, were entitled to spend unlimited money influencing elections in the US.

As a third point impugning both Thomas and Walker: Judicial Code of Conduct, Canon 2, adopted in the Federal courts as well as every State court system: A Judge Should Avoid Impropriety and the Appearance of Impropriety in All Activities.

The appearance of impropriety is a strong problem. Politicians are regularly brought down, forced to resign or failing to re-elect, on the strength of an “appearance” of impropriety even if the letter of the law is not broken. Public officials of unelected nature often die on the vine in similar situations, forced to resign lest the elected officials who appointed/hired them face the same fate. When it comes to judicial impropriety, appearances do far worse; they make the citizenry distrust the courts. On a day-to-day basis, this much resembles the Badged Highwaymen conundrum, whereby citizens feel they do not get a “fair shake” without at least spending money on lawyers… who happen to be friends of judges and lawyers and cops… who, in essence, become the “gatekeepers” to actual justice, whether the facts are on the side of the citizens or not. In a larger picture, impropriety usually comes to the fore through stings: the cases of Thomas J Maloney and Mark Ciavarella come easily to mind.

More subtle, however, is the corrupting influence - whether payments to a spouse, or preferential treatment at events, will prejudice a judge. The comings and goings of other governmental employees, or spouses, routinely draw calls of corruption. The habit of lawyers for the almost-universally-despised RIAA to come and go from government positions, where they make often rulings that benefit the RIAA at the expense of common sense, and then leave to go to cushy, overpaid jobs at RIAA firms, certainly violate the appearance of impropriety. So, too, do the comings and goings of Wall Street personnel from Federal financial jobs, whether legal or accounting in nature.

And so we get around to Clarence Thomas and Vaughn Walker. Had Clarence Thomas and Antonio Scalia recused from the Citizens United case, what would the outcome be? We don’t know for certain, but it’s hard to imagine that those who believe CU was wrongly decided don’t have thousands of dollars worth of justification for their suspicion of impropriety. Likewise, despite Ms. Lithwick’s arguments - carefully constructed though they are - about why Vaughn Walker shouldn’t have recused, two things bug me. The first is that this argument should have been able to be brought before the trial even began; instead, the courtroom got its own annoying little sideshow whereby the judge’s supporters shouted an annoying cacophany of “he’s not” and “it doesn’t matter anyways.” Given how “revolutionary” his opinion was, given the accusations even from the beginning of the trial that he was trying to tilt the playing field… the appearance of impropriety, of bias, is a strong thing. Almost any other federal judge could have written the opinion Vaughn Walker wrote, and not had the appearance of impropriety that is fueling the current round of litigation. For the best results, a trial needs to be as evenhanded as possible. In the case of the Prop 8 trial, it seems that one side felt the tables were being tilted going in. Give them a “reason” to believe it was tilted, and you’ll never shake their faith that the game was rigged again. For this reason, I submit that Vaughn Walker was the wrong man to handle the trial.

First, props to Missouri on this:

Modifications to the bill must be approved by the House before becoming law, but the Missouri Department of Transportation (MoDOT) has already begun increasing yellow signal timing with very positive results. In Arnold, the first city in the Show Me state to use automated ticketing machines, yellow timing was increased from 4.0 to 5.0 seconds at three intersections along Missouri Route 141 on February 24. Smaller changes were made on April 15, including a boost from 4.0 to 4.4 seconds at northbound 141 and US 61/67, a 4.0 to 4.5 second change at northbound US 61/67 at Rockport School, and from 4.0 to 4.7 seconds at southbound Vogel Road at Richardson Road (4.3 seconds at the northbound approach).

The impact of the longer yellow at red light camera monitored locations was felt immediately. In January, before any signal timing had been changed, American Traffic Solutions recorded 875 alleged violations in the city of Arnold. At the end of April, that figure fell 70 percent to just 266. Jefferson County Councilman Bob Boyer obtained the ATS statistics after learning that MoDOT had extended the yellow times.

�This recent bit of information goes further to prove the point that there are other safety measures that can be implemented if safety, not money, is the focus,� Boyer said.

Whenever you talk about lengthening yellow lights, there’s always somebody that says that people will simply adjust. And sometimes people will. But study after study has suggested that in the aggregate, longer yellow lights reduce lightrunning as well as accidents. They also reduce revenue, which is part of the problem. So congratulations to Missouri for getting this right.

On the other hand…

[I]n Missouri, it is common that municipal prosecutors will regularly �amend� moving traffic violations, which incur points against one�s driver�s license and potentially raise car insurance rates, to non-moving violations which do not incur said points and insurance rate hikes. Of course, the prosecutor only does so under two conditions:

1) The fine for the �amended� violation is exorbitant compared to the moving violation fine�and compared to the usual fine for the actual non-moving violation, and

2) The victim�er, ticketed person�must have hired legal representation for the prosecutor to negotiate the amended complaint. (Non-lawyers, don�t try representing yourself. Prosecutors won�t do it. I tried�once upon a time when I was younger, drove less carefully, less wise, didn�t inhale, etc.)

Now, one may counter that this behavior is not �extortion� because it is not illegal for the prosecutor to negotiate an amended charge as part of a plea bargain, nor is the prosecutor directly benefiting from the extorted fees. However, this activity is a plea bargain only in the most superficial sense, since a miniscule percentage of moving violations are ever actually contested with a not-guilty plea to begin with and individuals engaging in this �bargain� have no intent to contest the moving violation. In a game theoretic, it�s almost never a credible threat so there is virtually no chance court time will be used or the alleged criminal will go unpunished. And while the prosecutor may not directly pocket the huge fines, those fines comprise a non-trivial portion of many municipalities� revenues, which do flow back in part to the prosecutor�s budget.

This is not entirely unlike what they’re doing in Delosa, wherein you can avoid having your ticket turned over to your insurance company under certain circumstances. This makes people less likely to contest, but also helps them skirt state laws about how much revenue a town can get from tickets (they can “only” get a third of overall revenue from traffic enforcement). On the one hand, this is great because it helps you keep a clean driving record. On the other hand, it allows them to write up more tickets. In the case of Missouri, it sounds like an odd freebie for lawyers.

As I’ve mentioned before, I got out of a ticket for which I was dead guilty by hiring a lawyer once. If a lawyer knows what they’re doing, they can make it not worth their trouble. Trying to defend yourself, though, is pretty foolish.

Over at CNN, a raucous “discussion” ensues over what, precisely, it means to declare someone incompetent to stand trial.

This is always a tough debate. On the one side, the mentally incompetent are likened to children, the main other class which are normally protected from the legal consequences of their actions (or at very least, given reduced punishment) due to society’s opinion that they are insufficiently mature to fully understand the morality of crimes they commit.

On the other the “insanity defense” (or claim that a person is incompetent to stand trial) generally comes up for discussion in the realm of crimes that are intensely violent, whether because the person was in a “fit of rage” or because they are simply mentally unhinged in general. For part of the public, there is a standing belief that nobody could be “that insane”, and thus that any lawyer bringing up mental insanity is employing a cheap parlor trick. For part of the public, there’s the belief that someone let off the hook on an “insanity plea” is simply dumped back into the population.

Especially poignant in this is the general public’s normal “interaction with the mentally ill” that is mostly confined to people who are homeless. The “crazy guy panhandling on the corner having a loud argument with his invisible friend” is something plenty of people have experience with, and there’s a certain amount of cognitive dissonance involved in the fear people have of these people becoming irrationally violent, and the idea that “nobody could be that insane” when it comes to criminal defendants.

Two years ago, I discussed types of criminals, in context of criminal punishment/rehabilitation models and the contrasting ways to deal with rational and irrational actors. It strikes me that Loughner falls into one of the “irrational” categories. Certainly, his mind and warped worldview don’t match many other people. I’d say he falls into a sociopath category, inasmuch as his writings and ravings indicate that he lacks a connection to the normal world.

But what can be done for it? Again, there’s the real dilemma. Even if the state eventually rules him competent to stand trial, even if he skips trial and goes straight to “remorsefully pleading guilty and begging for leniency on grounds that he wasn’t sane” mode… how can you tell he’s not simply telling people what he thinks they want to hear? How can we be sure, beyond a reasonable doubt, that he is “cured” enough to reenter society? Especially if the “cure” involves antipsychotic drugs, what assurance does society have that he’ll continue taking them on schedule or that they won’t lose effectiveness as his body builds up a resistance to the dosage?

I’m not expecting much argument against the notion that Jared Lee Loughner needs to be under supervision, and possibly separation from society, for the rest of his life. There’s no question that, sane or not on some relative scale, he committed an absolutely horrific act. However, the way society views “criminals” at large is very odd. If Loughner really is completely incompetent to understand the world around him in the way a normal person does, sticking him in prison - even after “treatment” renders him “sane enough to stand trial” - would seem to be just abusive. There’s also a small minority of people who would rather have him (humanely) executed, no matter what his mental state, or especially if his mental state can’t be repaired - since, in the state he’s currently in, any caregiver assigned to him (nurses, doctors, psychiatrists) are necessarily at some degree of risk in his next rampage. I’ll not render an opinion on that, but simply state that I understand both the pro and con arguments of such a scenario. It all depends on whether you view Jared Lee Loughner as a damaged human being on a “thou shalt not kill” scale, or if he’s more like this and must be “put down” for the greater good of society, remorsefully.

I was somewhat reluctant to password protect my WiFi. Having leeched off neighbors’ WiFi after a couple of moves until I could get my own Internet up, I felt hypocritical not extending the same courtesy to others. But ultimately, the desire for security won out. Specifically my fear that someone might use my connection for something untoward. Basically, I didn’t want to end up like this guy:

Lying on his family room floor with assault weapons trained on him, shouts of “pedophile!” and “pornographer!” stinging like his fresh cuts and bruises, the Buffalo homeowner didn’t need long to figure out the reason for the early morning wake-up call from a swarm of federal agents.

That new wireless router. He’d gotten fed up trying to set a password. Someone must have used his Internet connection, he thought.

“We know who you are! You downloaded thousands of images at 11:30 last night,” the man’s lawyer, Barry Covert, recounted the agents saying. They referred to a screen name, “Doldrum.”

“No, I didn’t,” he insisted. “Somebody else could have but I didn’t do anything like that.”

“You’re a creep … just admit it,” they said.For two hours that March morning in Buffalo, agents tapped away at the homeowner’s desktop computer, eventually taking it with them, along with his and his wife’s iPads and iPhones.

Within three days, investigators determined the homeowner had been telling the truth: If someone was downloading child pornography through his wireless signal, it wasn’t him. About a week later, agents arrested a 25-year-old neighbor and charged him with distribution of child pornography. The case is pending in federal court.

I don’t know if such SWAT teams exist in Callie. But it’s a headache no matter how you look at it. Of course, in addition to getting the wrong guy, there’s the question of whether something like this is really “SWAT team” material:

The trend towards the militarization of the police, brought to us first by the drug war, is quite disturbing. I am all for arresting people who break the law, but military approaches to law enforcement turn citizens, who are presumed innocent (lest we forget) into presumed enemies of the state. This is not an appropriate approach, especially when dealing with something as tenuous as an IP address for evidence. Even if a given cybercrime did originate in a given location, there is no way to know which person in said household committed the crime. To bust through the door, toss people to the ground and then start sorting things out is not what I want out of law enforcement agencies in a democracy.

There are two main justifications for this sort of raid. The first is that they fear retaliation and have to gain control of the situation quickly. The second is the fear of destroying evidence - in the case of drugs, flushing them down the toilet. There is very little reason to believe that either is the case here. Child pornography consumption does not exactly equate with “armed and dangerous.” And while it’s possible that they can delete the stuff, it’s getting harder and harder to delete stuff that cannot be recovered.

Further, these raids are non-trivial events. They are, in a sense, a punishment in itself. If they fear that they are being assaulted by hooligans, they can get their gun and end up dead on the floor. Or they could survive and spend the rest of their lives in prison for accidentally killing a police officer (though, if they get a police officer, they’re probably dead in any event). If they have a dog, there’s not a bad chance that the dog will be killed in the process. Even leaving aside the psychological effects, you’re putting this person at great risk.

Sometimes, it may be necessary. But it’s pretty hard to argue that - as bad as we may consider child pornography to be - accused consumers are a particularly dangerous group.