Sneaking Suspicions
Archives-- January 12-25, 2003

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This page includes posts from January 12-25, 2003 in the usual reverse order. Each posting on the home page is perma-linked to these archive pages.

January 25, 2003

I don’t normally associate funerals with pleasant thoughts. Today’s event was an exception.

My brother-in-law’s grandmother died late last week, just one month short of her 105th birthday. 

On the several occasions we met over the last twenty years, Hanna Hughes was an unfailingly pleasant, charming lady. During a Lutheran service that was truly a celebration, her family confirmed that impression with several stories I hadn’t heard before.

She was a college graduate, a rare achievement for women who came of age during World War I, and taught in southern New Jersey schools for many years. Well after the usual retirement age, she began a series of trips and other adventures all over the world, culminating in a hot air balloon ride at age 97.

Her last years became more restricted due to slowly failing health, but these limitations apparently never affected how she treated others. The pastor told the assembly how he used her approach to her life and her God as an inspiration to others.

The service ended with a scattering of a few of her ashes among the shrubbery in front of the church she attended for the last few decades of her long life. Considering all the places she’d been and all the people whose lives she touched, it seemed perfectly appropriate that her final earthly remains would not be kept in one place.

January 24, 2003
Random thoughts on the selling and buying of newspapers

Eugene Volokh posted a few notes this week about a sternly worded Fourth Circuit Court of Appeals decision, finding several deputy sheriffs and others liable for violating a newspaper publisher's civil rights under 42 U.S.C. Section 1983.

Volokh described the holding and commented as follows:

[T]he First Amendment prohibits government officials from buying up (in order to destroy) all copies of a newspaper that criticized them, even when the officials pay the stated price. I said: "The question is not, in my view, open-and-shut, and the opinion doesn't consider the counterarguments as much as it might have; but the result is interesting, and should help prevent such behavior in future cases (like the one in California, where a mayor did something similar to a free newspaper)."

A Volokh reader named Kevin St. John sent in his own interesting remarks:

It seems to me that "taking" free newspapers and purchasing papers are not analogous situations as far as liberty interests are concerned....Its a funny world where a legal commercial transaction undertaken by the government or its agents becomes a First Amendment violation. And it makes for difficult line drawing.

My own thoughts about this case are a bit mixed, in part because of my own experiences with the press, both as a government attorney and as a columnist for a local weekly newspaper for the last four years.

The paper I write for has a circulation about twice the size of St. Mary's Today, the newspaper at issue in the litigation. I've received a great education by observing how the full-time staff manages their business, from advertising, to layout, to the exercise of news judgment.

I've also read a bit of the online edition of St. Mary's Today. The best way I can compare it to the paper I write for is to paraphrase something my publisher once said: "We're a community paper. We report about all the trees, but we tend to leave the bark on."

The St. Mary's paper, on the other hand, seems to revel in peeling the bark off. Take a look at this segment on its campaign endorsements, for example.

In both cases, the newspapers reflect the choices of their owners, which involve as much an economic assessment as a political one.  In neither case will any government these papers cover ever be wholly pleased with the news coverage. It's an impossible goal, and one the papers shouldn't be aiming for, anyway.

From the examples noted in the Fourth Circuit decision, it's clear that the newspaper really got under the skin of the county sheriff, several of his deputies, and a buddy who was running for state's attorney. In pre-trial depositions and immediately after the election day buy-and-grab, the deputies and other participants made no secret of their contempt for the publisher and the slant his paper took on their work.

Their anger was understandable, even if not necessarily justified. What mystifies me most, however, is that these fools would think that buying up all the papers on election day was a good idea.

The purchase plan was simply stupid, regardless of how one feels about the First Amendment issues.

Did they think they’d somehow not pay a price for this high-handedness? What was going to happen with the next edition, or for the next umpteen weeks thereafter? Did they want to extend the publisher’s crusade against them until they were forced from office in disgrace? Frankly, I can’t imagine a more effective method to keep the newspaper pot stirring than this completely bone-headed scheme.

That said, the Fourth Circuit seemed just a little too eager to smack down these foolish officials, and Volokh is right that the legal issues were not nearly as cut and dried as the court seemed to make it. Perhaps the judges (or their clerks) let their outrage get the better of them.

For example, on almost every occasion the opinion refers to the "seizure" of the purchased newspapers.

If that's true, I plan to go down to WaWa soon and seize myself a half-gallon of milk, but I'll be sure to leave the $2.39 at the cash register.

In addition, the Court refers to the Maryland Newspaper Theft Act, which according to the opinion

prohibits "knowingly or willfully obtain[ing] or exert[ing] control that is unauthorized over newspapers with the intent to prevent another from reading the newspapers." [citation omitted.]

The Act was passed to criminalize such events as the St. Mary's Today seizure: mass censorship-oriented appropriations of newspapers which cannot otherwise be punished as theft.

The Court opined that the acts of the deputy sheriffs and their boss was a straightforward violation of this criminal statute.

The problem with this argument is that it's a makeweight at best, and simply wrong as a matter of logic.

It's a theft statute, after all. Any purchase is authorized, is not theft, and therefore inapplicable to this law. There's simply a world of difference between the unauthorized acquisition of 1,300 papers and the unexpected purchase of the same number by only a few people.

On the other hand, it’s not so easy to defend the police on the First Amendment issue. For example, St. John is right that the newspaper business model is based primarily on advertising to as wide an audience as possible. A paper that has a dozen purchasers, even if they buy 1,300 copies, is not what was intended. That business concept has some relevance to the First Amendment considerations here.

The testimony of the convenience store clerk was probably the most damaging. The clerk noted the police presence in his store, which his company had promoted with freebies over the years, and explained that he assumed his work life would take a turn for the worse if he didn’t let them buy all the copies.

St. John’s comment about a publisher-imposed sales limit at the stores wouldn’t have meant much under these conditions. There's an unmistakable element of coercion that is hard to square with an innocent if totally misguided attempt to express anger at the newspaper's reporting.

To the extent these idiots wanted to do anything as dumb as this and somehow reduce the risk of litigation, they would have been far better off limiting themselves to buying up the copies sold in the newsboxes around the county. A metal box is not intimidated by anybody, after all.

The fact is that other legitimate options were available to the government officials, especially through the Internet.

For example, I’ve made sure my clients are aware of their option to publish facts on their government web site, if they are upset about how a newspaper botched the reporting on their activities. The county sheriff's office has its own web site, and if there was any defense to the newspaper's claims the site could have provided a perfectly legitimate forum.

It will be interesting to see how the current county government reacts to this decision. The sheriff involved in the case is no longer in office. He completed his final term of office last December. Maybe the commissioners will decide to cut the county's losses. On the other hand, the newspaper's continued needling of county government may act to spur an eventual appeal to the Supreme Court.

Given the high emotions involved in this case, I don't hold out much hope for a quiet resolution.

January 23, 2003

Let’s go to the videotape

As noted previously, I enjoy watching certain kinds of reality programming, such as Police Videos, COPS, and World’s Scariest Police Chases.

The videotapes used by these shows are important for reasons far beyond entertainment, of course. The audiovisual record can eliminate many factual discrepancies before they even start, leading to better plea-bargaining for both sides in criminal cases, and a more convincing presentation to the court or a jury if there’s no plea. 

As I understand it, the ability to watch one’s drunken attempts to pass field sobriety tests, captured on the police car-cam, vastly increases the number of those quickly entering a guilty plea in DUI cases. 

In addition, the tapes often protect officers from false claims of police brutality, as noted in this story from last fall. On the flip side, the prospect of being caught on film might just deter some officers from doing some truly stupid things.

Two court decisions issued this week, one from the Tenth Circuit Court of Appeals and the other from the Illinois Appellate Court’s Third District, provide additional support for the argument that police interviews of those they arrest should also be videotaped as a matter of routine. 

In the Tenth Circuit case, Steven Jerome Hawthorne tried to escape the consequences of losing an evidence suppression hearing relating to a charge of possession with intent to distribute crack cocaine in Kansas City, Kansas.

The hearing centered on his statements to police. He testified that after he was taken into custody, he said he wanted a lawyer.

As the appellate panel noted, upon making the request the interrogation is supposed to stop, but there are additional considerations:

[T]he request for a lawyer must be unambiguous. If a suspect makes an ambiguous statement about wanting a lawyer, the interrogating officers have no duty to stop the questioning or even to seek clarification from the suspect about his interest in seeing a lawyer. [citation omitted].

The police officers both testified that Hawthorne told them "I may want a lawyer" just after he read the part of the Miranda form that noted his right to speak with one. However, according to the officers,

After he finished reading it, he said, "I don't want a lawyer, I'll sign the form." …. He signed the Miranda rights waiver and proceeded to make incriminating statements to the two officers. Agent Violanti testified that once Defendant had executed the waiver, he never expressed a desire to stop talking to the investigators, and he never requested a lawyer.

Hawthorne lost his suppression motion. He then received an enhanced sentence because the trial judge determined that Hawthorne perjured himself during the suppression hearing.

The Tenth Circuit affirmed the decision, after an extensive discussion of the conflicting testimony and the case law concerning the quality of expression required to invoke Miranda rights.

As I read the case, I kept thinking how much a videotape copy of the interview could have helped settle the matter, if not keep it from becoming an issue in the first place.

The Illinois decision proves the point, although with a slight twist.

Police arrested Steven A. Howerton for first degree murder of one man and for the attempted murder of another. The circuit court upheld a defense motion to suppress incriminating statements Howerton made after he was taken into custody and given his Miranda warnings.

Howerton’s interrogation was videotaped, and the judge used the tape to rule in his favor.

The state appealed, but lost again in the Appellate Court.

The videotape showed the story, and the appellate court could see the evidence just as well as everyone else:

Any discrepancies between the officers' testimony and the police videotape are resolved by the videotape, which we have viewed in its entirety….

[T]he police videotape establishes that defendant clearly and unequivocally invoked Miranda rights on five occasions during the interrogation by Officer Shepherd.

Here’s what the judges saw and heard Howerton say on tape:

  • "Take me upstairs then if I'm under arrest. Either that or I want a lawyer because--."

  • "Get me a lawyer. Take me upstairs, because there's nothing I can tell you."

  • "Take me upstairs and let me get my lawyer because there's nothing I can tell you."

  • "Well, can I have a lawyer then?"

  • "Just book me. I'll have to get a lawyer and try it in court."

Based on this evidence, the judges held there was no error in granting the defense’s suppression motion.

For the sake of the victims, it’s a shame that the Illinois police officer blew his assignment and failed to respect Howerton’s rights. I also wonder about the prosecutorial zeal that may have affected the judgment call about arguing this part of the case. Even so, the correct result was reached on the constitutional issue, and Howerton has the government’s videocamera to thank for that result.

One hopes, of course, that the Howerton case is by far the exception than the rule. In any event, the routine use of videotape during police interrogations should help keep most of these arguments over Miranda invocations or similar issues from ever occurring. 

That would serve the ends of justice fairly well.

January 22, 2003

Extremely absentee ballots

Sometimes you just can’t imagine some of the problems of democracy that state legislators will decide need to be fixed.

In Louisiana, for example, Rep. Reggie Dupre thinks that dead people should have their absentee ballots counted.

I don't mean to be cruel, but those are extremely absentee ballots.

Current law in Louisiana and most other places says that if a person dies after mailing in the ballot, the vote shouldn’t count.

Delaware’s law is pretty blunt about it:

Whenever it is made to appear by due proof to the inspector and judges of election that any absentee voter, who has marked and forwarded his or her ballot, has died, the voucher envelope containing the ballot shall not be opened but shall be marked "REJECTED, dead," and shall be preserved and disposed of as other rejected ballots.

15 Del.C. Section 5517(b).

As one might imagine, there’s a story behind this proposal:

The big problem, says Dupre, is that the law is only enforced if election officials recognize the name on the absentee ballot and know that the voter has died.

That happened last fall in Terrebonne Parish in southeastern Louisiana. Election officials there came across the ballot envelope signed by former Parish President Teddy Duhe, who had died of a heart attack two days after voting.

Clerk of Court Robert Boudreaux and Registrar of Voters Linda Rodrigue knew about Duhe's death, so they canceled his vote. Then they wrote Dupre to say it wasn't fair because there was no way of knowing if other dead people's ballots had gotten past them.

Janet McConnaughey, the AP writer for the story, couldn’t help herself in repeating an old story about Louisiana politics:

Dupre stressed there is a difference between this kind of "graveyard vote" and the fraudulent casting of votes that gave rise to jokes like the one about the woman who wanted to be buried in a particular New Orleans suburb so she could stay politically active.

Nice to see that some jokes are universal, with only the location changed to suit the storyteller. I first heard that one many years ago, but the way I heard it, the joke was about a ward in Wilmington famous for its sense of humor about the election laws.

The debate on Rep. Dupre’s bill should be lively, if not uplifting. I can imagine all sorts of arguments being resurrected against the bill.

For example, should the vote of a suicide with a sharp sense of public duty count, because he mailed in the vote just before ending it all?

And what about the prospect of party officials prowling the halls of nursing homes and hospital emergency rooms, trolling for absentee ballots among those who will soon not be among us?

Let’s just hope that the Louisiana legislature treats this bill with the grave respect it deserves, and that it doesn’t end up buried in some committee.

January 21, 2003
This window of correction is a drive-through

Sometimes it seems that there are far too few opportunities for complete redemption. It’s a separate but related question whether folks would seize these chances even if they existed.

On occasion, however, the law recognizes that one should be able to correct one’s errors.

The owners of several KFC franchises in Mississippi recently took advantage of just this kind of chance, using the “window of correction” allowed under the Fair Labor Standards Act. 

Several people accepted employment at the restaurants as managers. To provide an appropriate incentive for performance, the salary was set at $300 per week, with a monthly bonus of 2% of the gross sales volume at their particular stores. 

Because this is retail, however, there were certain risks that also needed attention, not least of which was the typical shortage often discovered at the cash registers at the end of the day. To make sure the managers handled this problem, any such recurrent losses were deducted from the bonus.

So far, so good.

Apparently deciding not to leave well enough alone, however, the KFC owners decided to withhold the register shortages from the weekly salary payments instead of the monthly bonus checks. After all, if the managers only had to face the risk of a cut in pay once a month instead of every week, they might not treat the problem with the appropriate seriousness.

Nonetheless, this kind of deduction is not among those permitted under the FLSA. If not corrected, the employees’ exempt status under the Act would be in jeopardy, which could have nasty and expensive side effects (overtime, anyone?).

Some months after instituting this practice, the owners double-checked with their attorneys. They advised their clients to stop the practice and go back to deducting the shortages from the bonuses. For once, the owners took their lawyers’ suggestion, and went back to the prior system.

A few months later, however, the managers sued the owners under the Act for their bone-headed attempt at shrinkage control.

I take this as a sign that there were other “issues” about their employment, and the FLSA suit was a convenient means to express the managers’ discontent.

Five days before the scheduled trial date, the store owners then tendered to the manager-plaintiffs all the deductions made from the salary payments, plus interest up to the date of trial.

The U.S. Department of Labor regulations provided this “window of correction” under Section 541.118(a)(6). This rule gives employers a chance to maintain an employee’s exempt status under FLSA by reimbursing improper deductions made either inadvertently

“or… for reasons other than lack of work….”

Notwithstanding this fairly late proffer, the District Court ruled against the KFC owners, and ordered the payment of four months of overtime pay.

On appeal, the plaintiffs relied upon amicus briefs filed by the Labor Department in other circuit courts, that seemed to argue for limits on the Department’s own regulation.

However, the Fifth Circuit sided with the restaurant owners. 

In contrast to the usual deference shown administrative agencies in the interpretation of their own rules, the appellate court held that no such regard is required when the regulation’s plain language offered all the understanding anyone would need: 

The entire regulation reads coherently and plainly reaches any deductions made for reasons other than lack of work.

Absent ambiguity, the Secretary’s interpretation is “entitled to respect” under Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944), “but only to the extent that those interpretations have the ‘power to persuade,’”…. Though we afford the Secretary’s interpretation its due respect under Skidmore, it is insufficient to overcome the interpretation’s contradiction with the plain language of the regulation, which allows the window of correction to be invoked for the conduct at issue here. [citation and footnote omitted.]

As I see it, this case makes an important point. If the Labor Department wants to alter a regulation to limit its obvious broad scope, it should follow the Administrative Procedures Act and amend the rule, and not rely instead upon legal arguments in amicus briefs.

On the other hand, even if the rule creating the window of correction is to remain as forgiving as it now clearly is, there should nonetheless be some kind of time limit on correcting the deduction and reimbursing the employees. Waiting until the last minute to make the repayment just isn’t fair.

In this case, for example, the proffer was made with only five days to go before trial. Under Federal Civil Procedure Rule 68 and similar state rules for offers of judgment before trial, however, there is a minimum ten-day requirement.

If the Labor Department can’t work up the nerve to close the window of correction completely, it could at least introduce a bit more evenhandedness in determining how long the window will be kept open.

January 20, 2003
MLK memories

I was 14 when James Earl Ray shot and killed Martin Luther King, Jr. At the time, we lived about 8 miles from Wilmington, in a typical suburban development. Our junior high school stood at the top of one of the higher hills in the area, with a clear view of the city.

While bike-riding with a buddy near the school not long after the shooting, we saw an immense cloud of smoke rising from the city, coming from many different places.

I learned soon after that the rioters set fire to many homes and businesses, in their own neighborhoods and elsewhere, and that some of the rioters tried to harm the firefighters trying to do their jobs.

In reaction to the riots, Governor Terry called in National Guard troops to patrol Wilmington. The Guard stayed in the city for months thereafter, and eventually became one of the prime reasons a Republican won a rare victory in that fall's election for mayor.

Neither the rioters nor the governor showed any real sign that they understood and accepted the message that Martin Luther King, Jr. tried to convey.

January 20, 2003
Sure it’s a dummy thermostat--but it’s digital!

A WSJ story that ran in the statewide newspaper today wasted no time in puncturing one of life’s little symbols of apparent influence for many of us.

It turns out that the cynical folks who insist that the room thermostats in their office buildings are fake are frequently correct.

Or, as the headline bluntly put it,

Dummy thermostats give employees illusion of control

Jared Sandberg wrote a nicely ironic piece about an issue that plagues millions of office workers throughout the country—who’s in charge of making this place feel right, and how can they get it so wrong?

Sandberg says there’s a reason for the deception:

The specialists are unrepentant. Fed up with of complaints from sweaty men and shivering women, HVAC technicians install dummy thermostats to give workers the illusion of control. In some leased buildings, even the corporate tenants don't know the thermostats are useless. Other times, it's the companies themselves, barraged with calls from workers, who ask the landlord's HVAC technicians to "fix" things.

When I worked for a city government years ago, our office building had just recently been completed. It was “all shiny and new”.

The HVAC system, however, sucked big time.

Somehow somebody seemed to have forgotten about something called “heat gain,” from a source others call “the sun.” Over time, folks attempted a series of personnel maneuvers intended to produce assignments to offices that did not receive the afternoon’s rays. There was no escaping the heat from that side.

The thermostats were not controllable. Repeated calls for an explanation about why the place was so off in temperature on a given day provided the same explanation—Honeywell is in Atlanta, and our building’s HVAC computer was set up to match Atlanta’s conditions at the same time of year.

Let’s just say that Wilmington, Delaware is not Atlanta, Georgia—especially in winter.

The state office building where I spend much of my work time is over thirty years old, and underwent a major renovation in the last ten years. The improvements included fancy digital thermostats in each office along the outside walls (most of the rest of the space is a cubicle warren).

The readouts show the outside temperature, the room temperature, and the alleged settings of the HVAC system.

The first two of these readouts appear to be mostly accurate. I’m convinced the last one is completely fake. In any event, changing the setting produces no noticeable effect. After a few tries, most folks just give up.

Until the office managers issued a stern memo outlawing them, there was a little boom market in tiny space heaters for the place.

Summertime inspires other self-help measures, such as taped cardboard along the edges of the ceiling vents to re-direct the cold air flow away from the top of one’s head.

This practice is also frowned upon.

Some people express their own mute commentary about the building’s HVAC system. They’ve taped a small piece of paper over the thermostat, blocking the view of the LED panel. From their perspective, there’s no point in looking at something they simply don’t trust.

Altering one’s clothing styles to suit the building remains an option. A few sweaters kept at the office are sometimes handy during the winter.

Just the same, I refuse to purchase short-sleeved dress shirts for the summertime. 

Some traditions must be upheld, after all.

January 19, 2003
Three Claudes for a taxing example of simple logic

It’s been a while since any Claude-worthy headlines leaped off the screen at me. Then again, I haven’t been spending quite as much time in front of the computer, what with the holidays and conferences and all.

Today’s NYT came to the rescue, however, with a headline that might have seemed pretty good during composition:

In the Debate Over Tax Cuts, Both Parties See a Chance to Score Points

I will grant that the NYT headline writer expressed an absolute logical truth--if there’s a debate, both sides will try to score points.

After all, if both sides agree, or if one side recognizes that the other side will surely win the debate, there won’t be a debate in the first place.

Therefore, I am not at all surprised or even intrigued by this headline.

As is often the case, the story was worth a better announcement. John Tierney did a nice bit of reporting about the Bush Administration’s proposed tax cuts and the likely sources of both support and opposition.

The piece begins in the heartland of affluent Democratic liberalism, the DC suburbs of Chevy Chase and Forest Hills, Maryland.

These are the kinds of places where a standard four-bedroom colonial that needs a little work sells for a cool $750,000 or so, minimum.

You know--just like everyplace else.

Tucked well inside the DC beltway, these particular zip codes provide great demographics for hardback book sales of the type Tierney describes in the first paragraph:

The aisles were packed at Politics and Prose, a bookstore in one of America's more affluent neighborhoods, when a billionaire's father arrived to promote his book calling for higher taxes on the rich. The customers there to buy copies of "Wealth and Our Commonwealth" loudly applauded William H. Gates as he denounced greedy plutocrats and declared the estate tax to be "the finest tax conceived by man."

Tierney then describes another person found near the bookstore. His opinion is a bit different from those lined up to express their solidarity against repealing the estate tax that they’ve already paid their attorneys to protect them against:

The closest encouraging word for the Bush plan came a few doors up Connecticut Avenue at Besta Pizza, a tiny carryout shop owned by an Egyptian immigrant, Tarek Zahow, who commutes to his 70-hour-a-week job from a much less upscale neighborhood 15 miles out of town.

"Of course I'm for tax cuts," Mr. Zahow said. He said he supported the White House's proposal, even though he realized the affluent would receive most of the money, and favored eliminating the estate tax even if it applied only to millionaires.

"I'm nowhere near a million in assets, but I might be someday," he said. "I don't think it's fair to have a tax for just a few people. Charge everyone the same."

Tierney writes that Republicans are betting there are far more voters like Zahow than the kind who came to see Bill Gates’ dad.

The Republicans are as capable of misreading the public as the Democrats, but on this issue I think the GOP’s assessment is correct.

January 18, 2003
Our friends at PETA

This week our friends at PETA demonstrated once again their remarkably ham-handed skills at public relations.

And yes, that pun was deliberate.

The animal rights group planned to use pictures of EPA administrator Christie Whitman’s Scottish terrier, Coors, as part of a billboard campaign against animal testing. The group 0pposes the EPA's use of animals for toxicity testing of various chemicals.

In a bad case of timing, Coors died, and for once PETA did the right thing:

PETA canceled the campaign after Whitman notified the group that Coors had been euthanized because she was suffering from cancer and was not responding to treatment.

A simple announcement of the cancellation of their ad campaign would have shown appropriate respect for Whitman and probably gained PETA some valuable good press.

Never let it be said, however, that PETA doesn’t know how to screw up these rare opportunities to improve their image:

In a letter to expressing condolences to Whitman and her family, PETA President Ingrid Newkirk wrote that the group presumed that the dog did not suffer unnecessarily.

"Would that millions of animals deliberately poisoned in EPA laboratories were as lucky," Newkirk added.


Can you say “graceless”? Sure you can.

The PETA letter is especially tone-deaf when one considers what EPA has already done toward meeting PETA’s goals, without losing sight of the agency’s fundamental mission:

…Whitman said the EPA had spent millions of dollars for research on alternatives to animal testing and had cut the use of animals to less than 10 percent of all tests.

I wonder sometimes why do-gooders are frequently so bad at bringing others along to accept their policies, or at least in finding useful ways to meet at least part of their goals. Maybe it has something to do with the side effects of absolutism.

January 18, 2003
Why our dog likes Snow Days

Our dog Rocky enjoys romping in the snow on the rare occasions the stuff makes its appearance around here.

In addition, he’s noticed an additional benefit to snow days:

He's a smart dog.

January 17, 2003
Local signs of an upcoming fight

Sgt. Stryker's old stomping ground is ramping up its work in support of the upcoming fight with Hussein.

Apparently the Air Force is fine with letting the rest of us know about it.

One of the local television stations carried a story about a new record shipment of one thousand tons of material flying out of Dover Air Force Base last week.

The shipments included over 30-thousand chemical warfare suits, hundreds of shipments of food and supplies and even vehicles weighing as much as 50 tons each.

The usual weekly shipments prior to September 11 averaged about one-tenth of the tonnage.

I assume that the reason we're learning about this is to help build up public support for taking out the Iraqi dictator. After all, it's not particularly likely that Hussein's boys are monitoring local American TV stations for signs of impending doom.

Even so, it seems a bit odd to see this kind of reportage. Doesn't really fit with the prior warnings about loose lips sinking ships, and so forth.

January 17, 2003
A version of phone sex?

Our part of Delaware received 6 inches of snow this morning. That may not seem like much to those living in the Frozen North, or even Pennsylvania, but down here at the beach that's a lot of white stuff.

My bride is usually almost childlike in her delight at seeing a snowstorm, and for the same reason as most kids--it could mean that her school's out for the day. No teaching--Yay!

This morning, however, her reaction seemed a bit more adult.

She dialed up the college's number and listened intently. A big grin crossed her face, along with a long, sustained "Yesss."

Then she re-punched the button, so she could hear the message again. Another "Yess."

Then again. "Oooh."

I wonder if this is what happens during phone sex.

January 16, 2003
The Lynyrd Skynyrd Exception to the Fourth Amendment

The Tenth Circuit Court of Appeals issued an opinion this week that sets out a limited form of Lynyrd Skynyrd exception to Fourth Amendment requirements for a warrant:

If police officers find themselves singing, "Ooh that smell, don't you smell that smell?", that fact combined with a few others will excuse a warrantless entry into a home--that is, if the smell is the unmistakable, powerful odor of methamphetamine cooking on the stove.

Joel Dean Rhiger and Carl Baker enjoyed shopping in New Mexico. They didn't realize, however, that federal drug agents were observing the pair as they purchased various materials used in the manufacture of speed, including iodine, ice, phosphorus, and cotton balls.

The agents then watched the two men enter the home of Randy Brown. The police went unnoticed during their surveillance, even though the home sat on an open mesa, with only an unattached garage on one side and a neighbor's house trailer on the other.

Perhaps the three men inside Brown's home were distracted.

In any event, after about an hour the police picked up the scent of cooking methamphetamine. They called for assistance, and a federal drug agent with significant experience in speed cases came to the scene.

He testified to being "overcome" with methamphetamine fumes. The officers took the next thirty minutes to confirm that the smell could only be emanating from Brown's humble abode, including obtaining consensual entry to the neighbor's trailer to eliminate that place as the potential source.

The police then entered the Brown residence. They turned off the heat, secured the "laboratory," and arrested the men. After obtaining control of the premises, the officers then left the house and obtained a warrant to conduct a more complete search of the home.

The others pled guilty, but Rhiger went to trial. The jury ruled against him on all counts, and he appealed.

On the issue of the warrantless burst into the meth lab, the appellate panel split 2-1. The majority felt that the police officers' actions did not violate constitutional standards, because the following factors provided the necessary exigent circumstances supporting their actions:

  • the evidence of purchases of methamphetamine manufacturing materials

  • the strong odor of cooking meth

  • the drug agent's testimony concerning the inherent dangers of methamphetamine fumes, including the risk of the lab exploding

  • the danger to the budding lab techs themselves, the officers, and the neighboring property.

The dissent pointed out that the officers took a half-hour to search for a door key to the Brown residence before entering the premises, while they also checked the neighboring home; there was only one other property in the immediate vicinity; there was sufficient opportunity to obtain a search warrant beforehand; the entry took place in the middle of the day; and the officers had surrounded the property, leaving no real chance for Rhiger or the others to escape.

Under these circumstances, I can see why the panel divided on the warrantless entry issue. On the other hand, both the majority and dissenting opinions refer to several other cases where the particular dangers of meth labs were among the decisive elements that justified similar searches. Speed is a much more dangerous chemical in its creation than a set of marijuana plants under a growth lamp. Methamphetamine presents very real and extreme risks to the officers and the drug makers, over and above the danger to innocent neighbors.

Even so, this case's facts seem to push the outer edge of justifying the police officers' busting of this particular laboratory.

Must have been some smell.

January 15, 2003
The NYT makes a Trent Lott-like comment

Today's NYT editorial concerning admissions policies at the University of Michigan law school seems to have included its own Trent Lott-like comment.

To be blunt, I can think of no other way to explain the editorial writer's statement about the University of Texas college admissions policy that accepts those ranked in the top 10 percent at each of that state's high schools:

That approach is necessarily flawed since its success depends on perpetuating a system of largely segregated secondary schools.

I'd be really interested in knowing exactly what the writer meant by this remark.

As it is, the NYT comes across as equally capable of making incredibly stupid observations, complete with an unstated but perceptible racist undertone, as Trent Lott did last December.

Did he or she actually intend to give the impression that the only way hundreds if not thousands of individuals with African-American or other minority group backgrounds could be drawn from the top 10 percent of each Texas high school would be if the schools were segregated?

In other words, did the NYT truly intend to be that incredibly demeaning to a wide range of American high schoolers with a variety of ethnic heritages other than Caucasian?

What an incredibly boneheaded thing for the NYT to publish.

And deeply wrong, too, by the way.

If the NYT was serious in discussing the 10% plan, it could point out that the plan is flawed because it appears to give insufficient consideration for the unfortunate disparity in education quality currently made available to Texas students. On the other hand, Texas high schoolers have other means available to them to gain admission to Texas colleges, so at least the 10% plan doesn't act as an insurmountable barrier to a college education for those whose class rank is below that level.

In addition, the plan gives a boost to those seeking to improve education in Texas schools. It certainly gives some folks in well-off districts a selfish (or at least competitive) reason to insist that all schools provide equal educational opportunities, without regard to who's attending which school. Otherwise, their own children might lose out under the plan. That doesn't necessarily reflect the better natures of some Texans, but it's an undeniable incentive just the same.

Even so, the 10% plan is simply not dependent on racially segregated schools or idiotic assumptions of group inadequacies for its eventual success.


At least the NYT editorial writer is not in a position of actual authority, as was the equally dense senior senator from Mississippi.

January 15, 2003
Somebody’s a big fan of Milla Jovovich

This afternoon I returned from the TRB Conference, and loaded the conference CD into my computer. The disk included a handy copy of Acrobat Reader 5.0, so that I would be sure to be able to read each one of the several hundred technical papers also included on it.

As if.

While staring at the screen as the program loaded, the names of various files flashed before me. 

Suddenly I noticed the startling name given to one particular API file, entitled  “Leeloo5.api.”

It just so happens that The Fifth Element is one of our family’s favorite movies. Therefore, seeing this file name immediately led me to conclude that the writer of that particular bit of code is a major fan of Milla Jovovich, the lead actress in this sci-fi adventure, which also starred Bruce Willis and Chris Tucker.

Here’s the dialogue from one of her first appearances in the film:

Korben Dallas: What's your name?
Leeloo: Leeloo Minai Lekarariba-Laminai-Tchai Ekbat De Sebat.
Korben Dallas: Good. That... that whole thing's your name, huh? Do you have, uh... a shorter name?
Leeloo: Leeloo.

I wonder how many other similar homages exist among the thousands of file names coined by software developers.

Bound to be a bunch.

January 12, 2003
Transportation politics at the margins

In dollars and cents terms, transportation politics takes place at the margins.

That fact tends to reduce the partisanship in transportation debates, compared to the discussion of other public policy concerns.

But not entirely.

By "at the margins," I mean that the way in which most of the money devoted to transportation is spent is not a matter of serious debate or controversy. Personnel costs take up a huge portion of the operating costs, as with most of government. The existing systems also need maintenance and routine replacement, and therefore much of both the non-personnel operating budget and the capital portion of a transportation department’s budget is devoted simply to keeping the existing massive infrastructure up and running.

Buses aren’t cheap, and neither are roads and bridges.

In addition, compliance with Federal mandates is typically a high-cost matter, and often limits a state’s options in determining how to recover the costs of compliance. For example, Federal regulations limit the fare that can be charged riders of the State’s paratransit service, and also require the service to be offered within a defined geographic distance along regular transit routes. Nonetheless, the cost of paratransit per trip is typically between 4 to 6 times the cost of regular transit.

When administrations change, those involved with the transition are often a bit surprised to discover how limited their options really are with respect to transportation politics and the money devoted to this part of government. What changes are made can reflect a new emphasis, but the reality is always a bit less than imagined, both by the new leaders and their opposition.

For example, today’s Washington Post noted that Governor-Elect Robert Ehrlich selected a Republican delegate named Robert Flanagan as the head of Maryland’s Transportation Department. In so doing, Ehrlich also signaled a shift in transportation policy that was no secret to those following Maryland transportation issues.

In contrast to Governor Glendening’s general stress on transit, and his particular opposition to a cross-county connector in the Washington metropolitan area, both Flanagan and Ehrlich are keen on building the long-sought link to Interstates 270 and 95.

With respect to that particular project, its supporters cross party lines:

That attitude pleases Montgomery County Executive Douglas M. Duncan (D), the intercounty connector's most vocal supporter. Noting that Flanagan's district crosses the Howard line into Montgomery, Duncan said: "We're looking forward to working with him."

Others are clearly less enthusiastic:

But some worry that Flanagan is so pro-road that such alternatives as bus lanes could be lost. "There needs to be a range of solutions," said Del. Marilyn Goldwater (D-Montgomery).

The practical reality remains limited, however. Maryland spends $3 billion per year on transportation, and most of it will continue to be spent the same way it was in prior administrations. In addition, the state’s ongoing budget concerns will also put a brake on any significant shift in policy:

As it stands, Flanagan won't have much to work with. The state doesn't have the money to pay for $27 billion in projects estimated to be needed over the next 20 years, and Ehrlich plans to dip into the transportation trust fund to help plug next year's $1.2 billion budget gap. Ehrlich has said he is open to increasing the gas tax to pay for needed road projects, but he does not plan a push this year.

Considering how long folks have been debating this particular project, it’ll be interesting to see how much political capital is spent during Ehrlich’s time in office to make sure the connector is built, or to keep the shovel from ever making the first dig.

January 12, 2003
The Arts and the Internet

When traveling, we often look for artwork or photography as a decorative souvenir of our visits. During our recent trip to New Orleans, for example, we enjoyed the cartoons done by Matt Rinard, a popular French Quarter artist we knew nothing about until our vacation. We bought several postcard examples of his funny caricatures, and they will soon grace our home in their own frames.

Given my interest in Creole and Cajun cuisine, for example, we just had to buy the Lightly Seasoned card, shown below.

I was also pleased to discover today that Rinard is taking advantage of the Internet, and selling his artwork online. It gives me and his other new fans a chance to buy that other card or two we forgot to purchase while we were in New Orleans, and saves Rinard all the expense and bother of publishing a catalogue.

I love the Internet.

This and other cards are available at This is an unpaid endorsement.

January 12, 2003
Blogging Break

I’m going to DC to attend an international transportation convention. This puts me in close proximity to about 9,000 people, many of whom consider a plastic pocket pen protector to be the ultimate fashion accessory.

Blogging will resume upon my return home. In the meantime, I’m looking forward to meeting a couple DC-area bloggers during the trip.


Contact Information:

Fritz Schranck
P.O. Box 88
Nassau, DE  19969


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© Frederick H. Schranck 2002-2003