Sneaking Suspicions
Archives-- January 26-February 8, 2003

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This page includes posts from January 26-February 8, 2003 in the usual reverse order. Each posting on the home page is perma-linked to these archive pages.

February 8, 2003
There’s symbolism, and then there’s symbolism

Some folks have a diminished sense of theater.

According to various news reports, apparently we’re supposed to be shocked and dismayed by the decision by Senator John Edwards (D-NC and ATLA) to attend a Democratic Party political meeting at the William Aiken House in Charleston, the former mansion of one of the South’s largest slaveholders.

Somehow this is supposed to be an outrage, in some way running counter to the NAACP’s ongoing boycott of South Carolina relating to the state's Confederate flag controversy.

I frankly don’t understand it.

The best thing I can suggest Senator Edwards to do is to make sure he is part of a major photo opportunity, in which he stands on the veranda of the Aiken mansion, surrounded by the smiling faces of dozens of African American South Carolinians.

Think about it.

If that picture wouldn’t make old man Aiken spin in his grave, what would?

If that picture wouldn’t deeply annoy white racists in South Carolina, with their continuing allegiance to the old ways of feeling superior to others not of their skin, what would?

As I see it, there’s symbolism, and then there’s symbolism.

After all, what would that picture say besides “Who’s in the house now, fool?”

February 8, 2003
Stunning news from the world of tax preparation

This year I learned my lesson. Instead of preparing our state and federal income tax documents by hand, I’m using a computer software package.

It really is much easier, and there are added benefits I didn’t expect.

For example, the software helps married folks in Delaware immediately understand the difference between filing a joint return and filing married combined separate.

In essence, there’s no marriage penalty in the state income tax code, unless you want one for some reason.

If either the husband or the wife do not earn $9,400 in the tax year, then the couple is usually better off filing a joint return. If both husband and wife earn at least that amount, then under most conditions they are better off filing a combined separate return.

In our case, it’s the difference between paying a hefty balance due and receiving a modest refund.

Guess what we’re doing.

The tax software also included an even more startling bit of news for Delaware taxpayers for their 2002 returns.

This is a direct quote:

Delaware now allows deceased taxpayers to electronically file.


I knew Delaware was in the forefront in many technically demanding areas, but this is a truly remarkable achievement.

February 7, 2003
News judgment

This morning’s statewide newspaper published its first story about a 300-turbine, 1,100 MW windfarm proposed for installation a few miles offshore Delaware, near Indian River Inlet.

I posted my first piece about this proposal a month ago.

Advantage: Sneaking Suspicions!

We might see these near us in a few years.
It's better than tons of coal ash, from my perspective.

February 6, 2003
Our Friends at PETA


Once again our friends at People for the Ethical Treatment of Animals have outdone themselves in their continuing mission to win friends and influence people.

Apparently under the impression that President Bush would share their concern,  especially at this time, PETA sent a letter this week to the White House. The animal rights advocacy group complained about the alleged “substandard” conditions under which the last two presidentially-pardoned turkeys are currently forced to exist:

The group claimed the birds were shivering in a shed without enough food and water at Frying Pan Park, a tourism farm in Herndon, Va.

"One would think that two animals that had been pardoned by the leader of the free world could be given better accommodations," wrote Bruce G. Friedrich, head of PETA's outreach program.

A spokesperson for the Fairfax County, Virginia Park Authority disputed the claim, stating that the birds are actually doing quite well.

The AP story concluded by noting that repeated telephone calls to the White House did not produce an immediate response to the PETA allegations.

Please. Allow me.

If PETA is concerned about the cold weather’s effect on these turkeys, I would be glad to help.

I would place the birds in a special warming space, set at about 325 degrees, and allow them to enjoy their new surroundings for about 15 minutes per pound. I would then wrap the turkeys in a special aluminum foil blanket, and let them rest for about 15 minutes. I would then remove the foil blanket, and let the birds slowly return to room temperature.

I can be very accommodating.

February 6, 2003
Three Claudes for an economics lesson

A Reuters story about the last quarter’s earnings report by the Safeway chain of supermarkets was graced by this not-so-shocking headline:

Safeway Posts Loss; Competition Hurts

I’m so glad they cleared up that mystery.

This one earns three Claudes.

February 5, 2003

Good Timing

Gary Farber picked a good time to explain in cogent, well-reasoned detail why he now believes that armed conflict with Hussein's regime is appropriate.

His essay appeared shortly before Secretary of State Powell made his own compelling presentation before the United Nations this morning.


The two points of view dovetailed nicely, in my estimation. Farber described several good reasons for military action, and Powell marshaled the evidence that supported Farber.

I think Powell also understood that his performance at the U.N. did not require acceptance by China, Russia, France or others reluctant to take action against Hussein. It was more important that others understand and accept the position of the United States and its current allies.

It appears that Powell succeeded, and fairly quickly at that.

February 4, 2003
Logic Problem

Let me see if I have this straight. 

According to this Reuters report, Iraq's people have suffered the greatest increase in infant mortality in the world over the past 10 years.

Therefore, we shouldn’t engage in military action to relieve Iraq from the grip of its dictator, Hussein, because it could lead to increases in infant mortality.

That seems to be the conclusion reached by the two international aid agencies cited in the Reuters story. The piece also included these explanatory comments from our friends at Oxfam and Save the Children:

A military attack would further disrupt systems supplying water, electricity and sanitation, which are already in a "desperate state of repair" after being hit during the Gulf War 12 years ago, they said.

Aid agencies have warned that Iraqis would be susceptible to life threatening diseases, such as typhoid and cholera, if clean water was not supplied and sewage pumped away.

I can’t help noticing that Hussein has been in power in Iraq during this entire time. He obviously failed to alleviate the Iraqi people’s suffering, choosing instead a path of continued intransigence. 

By comparison, it sure looks like the folks in Afghanistan are slowly improving their lives, compared to the awful conditions imposed by the Taliban before the Americans and others did something about it.

So tell me again.

Why doesn’t it make sense to try to keep Hussein from killing any more Iraqi infants, sooner rather than later, and by military means if necessary?

After all, it’s his continued neglect of his country’s civilian infrastructure, for whose initial destruction the United Nations correctly holds him responsible, that is causing these babies to die.

Or am I being insufficiently appreciative of the need for a nuanced understanding of the issues?

I don’t think so.

February 3, 2003
A zoning appeal is a cost of doing business, not a chance for cost-shifting

Real estate developers deal with certain time-based business risks every day.

They find a piece of land, analyze its profit potential under current zoning or potential rezoning, and take an option on the parcel during the permit process. While seeking governmental approvals, they also sound out potential tenants and line up the design and construction professionals who will complete the job.

As these folks also know from occasionally bitter experience, seeking to do something with a property often generates opposition from others. Those attempting to block development may often rely on NIMBY arguments, but sometimes there are other, valid reasons to seek to modify a land use proposal.

The prudent developer therefore takes into account the typical timeframes for any appeals from zoning or other governmental permit decisions, before making any assumptions about when the property will be built and generate income.

In other words, zoning appeals and the delays they can create are a normal cost of doing business.

Discovery House, Inc. didn’t think so, and almost held onto a million-dollar verdict that would have confirmed its view. 

Discovery House is in the for-profit drug rehabilitation business in Indiana. It found a piece of land in Indianapolis in 1995 that the company thought it could use for a new methadone facility.

The company’s preliminary check with the zoning officials indicated that the parcel’s current zoning would permit the intended use, and so it went forward with the project. Unfortunately, others decided to challenge that assumed authority.

The company lost the first round, in a contested hearing before the city’s board of zoning appeals (BZA) in 1996. Undaunted, the company took that decision to the state court system. In the first appeal, however, the court upheld the BZA.

Nonetheless, Discovery House kept going, and eventually won before the Indiana Court of Appeals. Those state judges ruled in 1998 that the methadone clinic was a permitted use, thus finally letting the project go forward.

In the meantime, Discovery House decided to do something about the three-year delay caused by the zoning dispute. It sued the City and its BZA under the Americans with Disabilities Act, the Rehabilitation Act, and under the equal protection clause via 42 U.S.C. Section 1983.

After the case was removed to federal court, a jury awarded the clinic operators just over a million dollars, based on the lost profits Discovery House would have made if it had been able to open their business without all these appeals.

This time Indianapolis appealed the case to the Seventh Circuit Court of Appeals.

Last week Judge Evans (a Howard Bashman favorite) and the other panel members restored some sanity to the proceedings, and wiped out the verdict.

First, they noted that the damages were awarded for lost profits, a type of recovery not provided directly by either the ADA or the Rehabilitation Act:

[W]e …know that “federal courts may use any available remedy to make good the wrong done.” Bell v. Hood, 327 U.S. 678, 684 (1946). This principle, however, is not without limits….

[T]he remedies we may find (other than those specifically set out in the statute) must, at the very least, be those which directly benefit the disabled. It would stretch the principle of Bell v. Hood too far to find that Discovery House has standing to recover lost profits under these statutes.

As for the Equal Protection claim, Discovery House faced a different, but equally fatal test.

After all, the lawsuit related to a for-profit drug addict treatment center. There was no basis to subject the BZA decision and subsequent appeals to equal protection review under the strict scrutiny standard. The governmental action could only be considered under the relatively lenient rational basis test. In addition, there were other problems with pushing this argument:

[T]he case … has a fatal flaw: there is a lack of evidence of discriminatory intent….

Discovery House … says the BZA members were, in fact, discriminating against its proposed clientele. [T]he evidence falls short of proving the point. While several persons who testified against the proposed clinic at the hearing before the BZA might have been motivated by discriminatory intent, there is a paucity of evidence to show that the board itself, or its individual members, were. The motivations of witnesses cannot be held against the decisionmakers.

Additionally, the … Superior Court’s decision upholding the BZA determination is further evidence that the BZA’s assessment of the situation was far from arbitrary and unreasonable. It shows that an independent judicial officer found the BZA decision to be rational and consistent with the zoning laws….

The lack of evidence of discriminatory animus on the part of the BZA members themselves and the fact that the HD-2 zoning does not without question allow for a methadone distribution facility required an end to the equal protection claim before the case went to the jury.

The delays in opening its treatment facility were obviously vexing to Discovery House. They were also costly, in that the lag between the initial inquiry and the eventual approvals stretched out for three years. Nonetheless, given the absence of evidence of discriminatory intent, the only thing that happened to Discovery House is what can happen to any developer on any project.

While the cost-shifting that Discovery House attempted here was understandable, holding cities responsible for lost profits in a case like this makes no sense.

February 2, 2003
Taking the Plunge 2003--Update


So we went down to the beach for this year's edition of the Polar Bear Plunge for Special Olympics. Our younger daughter and some friends ran into the water, part of what looked to be an even larger crowd of participants than last year's record-setting event.

The air temperature was about 40 degrees, but the 15-25 mph winds kept the wind chill factor down to about 29. The ocean water temperature was 34 degrees, and my daughter said the water never felt colder than it did today.

Thanks very much to Tom Maguire and any other bloggers who contributed.


I'll post the results later when the official tally is completed. In the meantime, here are a few pictures:

Thousands of plungers and their friends gather just before the Plunge.

Several dozen Plungers running both in and out of the water.

One Plunger is still shocked at the cold, but happy it's over.

Update of the Update--The News-Journal reports that over 2,170 plungers went in, gathering up more than $350,000 in donations. Even more money is expected from employers' matching grants. The overall crowd topped 10,000.

February 2, 2003
On Responsibility

There was an odd little coincidence to the movies we watched this weekend that also ties into the Columbia disaster.

It’s a matter of responsibility.

On Friday night we watched Barbershop, the fine and funny movie starring Ice Cube, Cedric the Entertainer, and several other great performers.

In Cube’s leading role as Calvin Palmer, he shows a young man struggling to accept his role as a budding leader in his South Chicago community. His inclinations were to break free from his inherited barbershop, and embark on an ill-considered get-rich-quick scheme. How he learns to appreciate instead what he already brings to his family and neighborhood, and then live up to the challenge of being steadfast in meeting those challenges, is the central theme of this film.

On Saturday afternoon we watched LOTR, The Two Towers.

It’s been so long since I read the Tolkien trilogy that I couldn’t tell you what Peter Jackson altered from the original work. Nonetheless, the idea of maintaining fidelity to one’s principles, if not one’s destiny, runs through the stories of many of the characters in the movie, be they elves, dwarves, hobbits, ents, or humans.

On Saturday night we watched About a Boy, a quiet little British film starring Hugh Grant.

In stark contrast to Cube’s character in Barbershop, Grant’s character Will is already rich enough to be able to do literally nothing. It takes a small boy, Marcus, played well by Nicholas Hault, to teach Will that a man without real responsibilities is not really a man at all. The story shows how Will becomes a real adult by helping others without expectation of personal reward.

The biographies of the seven crew members of the Columbia show without exception that these people understood and embraced the values of duty and devotion to goals higher than themselves.

They gladly accepted the risks and responsibilities of their chosen profession as astronauts, for the sake of advancing the cause of human knowledge.

The example the Columbia crew set is obviously more impressive than what any of these three movies could impart, in that fact is often stronger than fiction in imparting some basic truths. In all four cases, however, the lesson of responsibility is well presented, and worth noting.

February 1, 2003

Oh Jeez


On learning of the Columbia disaster, that's about all I could say.

Rest in Peace


February 1, 2003
Hardy Perennials

Hardy perennials bloom at the beginning of each state legislative session.

This year’s new Delaware General Assembly is no exception.

A hardy perennial is a bill that is introduced at least once every session for consideration and adoption by the legislature. This bill is not only not considered and not adopted; it is also completely ignored, stuck in some committee somewhere.

For some reason, the bill’s sponsors and advocates are undaunted by constant defeat, and renew their efforts in the next session.

A classic example in Delaware is a bill to introduce the early 20th Century Progressive Era reforms of initiative and referendum into the Delaware Constitution. The text is repeated each time (this year it’s Senate Bill No. 24); it is introduced in the opening days of the initial January meeting of the General Assembly; and nothing happens.

For the last few years some folks have been trying to cultivate a new perennial, this time dealing with casino gambling. Unlike those pushing the initiative and referendum bill, however, this group has tried a new hybrid each year. Thus far their success rate hasn’t changed.

Delaware has slot machines at three horse racing tracks, due to an intriguing interpretation of the Delaware Constitution’s prohibitions against most forms of gambling. Lotteries are an exception, and that’s why one sees slot machines called “video lotteries” around here.

(The beauty of the English language is frequently on display in the law, don't you think?)

These folks would like to expand the field to include new gambling locations--namely, their places. In order to entice the General Assembly into increasing the opportunities for slot operators, this year’s version (House Bill No. 10) includes an impressive array of potentially tempting policy initiatives:

  • The new slot machines would be located in Qualified Entertainment Zones, at Qualified Entertainment Venues, namely barges or gambling vessels anchored in the Delaware River, and capable of holding at least 1,000 slots per vessel;
  • The landward side of these Qualified Entertainment Zones would be properties that qualified as “brownfields” under EPA rules, or areas targeted for “redevelopment” by government authorities;
  • The owners of the gambling vessels would pay a higher portion of the net to the state than Delaware now receives from the racetrack owners; and
  • In the newest version of this bill, some of the money paid to the state would be earmarked to a special QEZ Fund, for three politically sensitive purposes:

One-third of the annual balance of this Fund shall be used to preserve farmland and open space as determined by the Bond Bill Committee, one-third shall be used to provide financial assistance to residents who reside at Delaware long-term care facilities, and one-third shall be used to support Pre-Kindergarten initiatives.

In other words, these new slot machines would provide for an Adaptive Reuse of Environmentally Damaged AreasTM, would help Preserve The Family FarmTM, would provide needed resources for Senior Citizens on Fixed IncomesTM, and also generate new income For the ChildrenTM.

I certainly give these folks points for creativity, and for managing to hit several hot button issues all at once.

Given my understanding of the lobbying effectiveness of the state’s racetrack owners, however, I also give House Bill No. 10 a 3% chance of ever actually passing either house of the General Assembly.

January 31, 2003
Update on Paul Krugman, state tax prognosticator

Earlier this month I quoted from a Paul Krugman column in the NYT about state revenue choices, in which he predicted how the states would obtain new money during the current fiscal crisis:

Since Washington shows no interest in helping, states will be forced into desperate expedients. Taxes, mainly taxes that fall most heavily on the poor and the middle class, will go up….

I then suggested Krugman was simply wrong, at least about Louisiana, a state we just visited. The post pointed out that effective January 1 Louisiana shifted a portion of its tax burden from its general sales tax to a new income tax, thus increasing the progressivity of its overall system.

If Delaware Governor Ruth Ann Minner’s suggestions in her budget address yesterday are enacted into law, then Krugman will also be proven wrong about the Blue Hen State.

Governor Minner discussed the fact that Delaware faces about a $300 million General Fund shortfall in the next fiscal year. She proposed that about half that amount should be addressed through various cuts and shifts out of the Fund. The other half would be the result of some targeted revenue sources.

For example, $89 million would come from increases in franchise taxes and fees charged to Delaware corporations and similar businesses, a net change of about 17 per cent from rates that hadn’t been altered since 1991.

Another $14 million would come from uncoupling the state’s estate tax system from the federal scheme, affecting about 300 taxpayers per year with estates larger than $1 million. Minner also said that if the Bush Administration succeeds in reducing or eliminating the federal tax on corporate dividends, she would seek similar uncoupling legislation to eliminate the hit on state tax revenues that would otherwise result.

In a good example of taking with one hand while giving with the other, at least in part, Minner also proposed increasing the permitted hours of operation of the state’s three slots operators, and also increasing the state’s take from that source by about $16 million.

Finally, Minner also suggested that Delaware bring its tobacco tax up to 50 cents per pack. That's still far below the charges imposed by neighboring states, but it would generate an additional $23.5 million in new revenue.

As I look at these numbers, I’m just not seeing a tax scheme that

fall[s] most heavily on the poor and the middle class….

Most of the new money results from tax exporting, to use a phrase Max Sawicky mentioned when we met recently. Delaware’s taxes on corporations, limited partnerships, and other business entities are the legal equivalent of the oil and gas severance taxes paid to states like Louisiana, Texas, and Oklahoma. Instead of paying for the privilege of removing a natural resource from the state for use all over the country, businesses from all over the country pay for the privilege of operating under Delaware’s business laws. Either way, the revenue is mostly paid from out-of-state sources, for which the exporting label fits very nicely (thanks, Max!).

The uncoupling proposal is aimed at the upper classes, since these death taxes are only due from large estates.

In contrast to the general impression about the state lotteries such as Powerball, I’m hard-pressed to agree that the income levels of those frequenting the slots parlors in Delaware are primarily poor or even middle-class. In addition, a sizeable number of the casino customers are from out-of-state, so even here there’s a bit of tax exporting.

The poor and the middle class will certainly be among those who contribute toward the final proposal for new income, the cigarette tax. The new tax will also be paid by every smoker from every other income group, so it can’t be argued successfully that the entire $23.5 million will come from the downtrodden.

I’m sure that some other states’ proposals for raising new taxes will eventually fit Krugman’s dire prediction. On the other hand, it was a bit presumptuous for the NYT columnist to imply that every state would think that tapping those with thin wallets first would be the best way to find the money they think they need.

He should have given the state politicians a bit more credit.

January 30, 2003
A warning for new dads

Here’s a stern warning for brand new fathers, courtesy of a decision this week by the Seventh Circuit Court of Appeals:

If your baby’s mother says she needs money for Pampers® products, you should make every effort to make sure she receives it.

Otherwise, there could be some ugly consequences.

A woman referred to in the opinion as “Pat Doe” contacted the sheriff’s office in Macon County, Illinois. Doe told Deputy Sheriff James Root that Sean A. Peck was in possession of crack cocaine and cannabis. She told the officer that she’d been in Peck’s house in the last two days, and that Peck showed Doe large packages of the illegal drugs that he told her he planned to sell.

Doe had her reasons for making the call:

Doe told Root that she wanted Peck punished because he was not paying for diapers for their child and that she thought Peck should be arrested because he was dealing drugs.

Root did not know Doe, and so he asked her to come to the police station and make the same statements under oath, which she did. Root also did a record check and confirmed that Peck had a prior drug conviction. He then obtained a search warrant from a local judge, and found over five grams of crack at Peck’s residence.

On appeal from his conviction on the drug charges that followed, Peck argued that there was insufficient probable cause for the issuance of the search warrant. After reviewing the facts and the law, the Circuit Court agreed with Peck.

Unfortunately for him, that wasn’t the end of the analysis:

[B]ecause the evidence was admissible based on the good faith exception to the exclusionary rule of United States v. Leon, 468 U.S. 897 (1984), we affirm the district court’s denial of Peck’s motion to suppress….

[M]ost CIs [Confidential Informants] have a bias against the defendant or something to gain from giving their statement…. The fact that the police used Doe’s statement even when they knew she was biased was not unreasonable. In fact, her relationship with Peck may have made her story more credible because, as someone close to Peck, she was more likely to know that drugs were in the house other than someone not close to Peck. Though the police did not take the steps that we require to demonstrate probable cause, the measures that they did take when receiving the information from the CI were sufficient to show their good faith reliance on the warrant.

Some guys take a bit more time than others to understand that their whole world changed when they first heard that memorable phrase, “You’re a daddy!”

Peck will now have some not-so-quiet time in the Illinois correctional system to contemplate that fact.

January 29, 2003

The Two Cultures

Delaware maintains two different broad-based cultures within its smallish boundaries.

The northern part of the state is a near classic example of the old Northeast industrial city-suburban ring model. The southern part of the state is equally classic, with a mix of farms, small towns, and beaches.

Occasionally you see the clash of these two cultures exhibited in the legislation introduced into the General Assembly.

This week’s example is Senate Bill No. 29, sponsored by seven upstate legislators and one from Dover, the state capital in the middle of Delaware.

It would forbid dogs from riding in the beds of pickup trucks and similar open vehicles.

The fines for this new traffic offense would run from $25 up to $230, depending on one’s status as a repeat offender.

Now, I’m sure the upstate legislators have a good reason or two why they want this bill enacted into law.

Perhaps there’s a concern that somebody’s Doberman Pinscher would jump off and attack someone in a mall parking lot. Maybe the concern is that the dog would be bounced out of the back while bombing along the Interstate.

On the other hand, down where I live this kind of proposal will provoke hot-blooded reactions from a whole mess of folks.

There are few sights more common along Sussex County roads than a somewhat muddy pickup truck, with a black lab or Chesapeake Bay retriever poking his head out to the side to catch the air from behind the cab, maybe shifting to the other side at a stop sign.

(Well, chicken haulers might actually be a bit more common sight, but other than that, you get the idea.)

This bill will be attacked as un-American, and as a basic assault on a fundamental American freedom—the right to keep one’s big ol’ dog from messing up the inside of the truck.

The bill’s primary sponsor is a Senate Republican, and the bill was assigned to the Senate Agriculture Committee. These two facts combined will most likely produce only one result:

Nothing’s going to happen with Senate Bill No. 29.

It just so happens that the Democrats dominate the state senate, and downstaters predominate on the Agriculture Committee.

That doesn't mean Senate Bill No. 29 won't be helpful to some legislators. There are at least two practical reasons for that statement:

(a) Someone from upstate will be able to campaign for re-election on the fact that they introduced this bill; and

(b) Someone from downstate will be able to campaign for re-election on the fact that they killed this bill.

And that’s how the clash of the two cultures will be resolved on this issue.

January 28, 2003
There are ways to deal with prosecutorial misconduct. Barring a second trial is not normally one of them.

In Oregon v. Kennedy, a 1982 decision about prosecutorial misconduct, the Supreme Court recognized the difference between simply being in a fight, and picking one.

This week the Eleventh Circuit Court of Appeals held that the Alabama state courts were under no obligation to eliminate that distinction.

Weaver Lee Hawkins, IV went to trial in 1998 on charges that he trafficked in marijuana and failed to pay a drug tax.

When his vehicle was originally stopped, there was a shoebox and a ziplock bag stored inside the passenger compartment. Part of the weed was inside the bag, and the rest was wrapped in plastic and stuffed in the shoebox.

The trial centered on whether anyone could smell the marijuana. That’s because Hawkins claimed he didn’t know anything about the drugs, even though he was driving the car.

The prosecutor argued that nobody could miss the distinctive aroma of the weed in the shoebox. The only problem was that the evidence technicians had re-wrapped the marijuana in thick plastic evidence bags, which were also heat-sealed.

(There’s no indication the technicians did this to maintain either that remarkable fresh scent or the weed’s potency, by the way. It appears to be standard evidence handling protocol.) 

The prosecutor apparently thought the case was going to be lost if he couldn’t make sure the jury smelled the marijuana in the same storage condition existing at the time of the seizure. In a move reflecting, shall we say, a game approach to justice, he tricked the court reporter into providing him access to the sealed marijuana bags. He then cut open the bags, and put the marijuana in the shoebox. 

The ploy worked. Hawkins was convicted. Shortly thereafter, however, Hawkins discovered the prosecutor’s bone-headed move, and filed for a new trial. 

He won that motion, but failed in his attempt to bar a second trial on double jeopardy grounds. During the retrial, there were no similarly stupid tricks, and Hawkins was convicted again. After being sentenced to 10 years, he then appealed unsuccessfully to the Alabama appellate court.

Hawkins then took his claim for habeas corpus relief to the U.S. District Court, and won. The state of Alabama then challenged that ruling before the Eleventh Circuit, and obtained a reversal.

The Kennedy rule dealt with situations where prosecutors deliberately screw up some part of the case, in clear view of the defense, in order to goad the defense counsel into successfully moving for a mistrial. Unfortunately, this sometimes happens when the prosecution thinks it’s about to lose a case, but also believes it could win in a second trial if it had a chance.

Under Kennedy, if the trial judge concludes that picking the fight with the defense was part of a plan to obtain a mistrial, it can bar the second trial instead. The accused then walks, based on the wrongdoing of those who pushed the legal envelope too far. 

However, in Hawkins’ case the prosecutor’s screw-up wasn’t aimed at instigating a mistrial motion: 

Unlike Kennedy, this case involved hidden misconduct. The prosecutor's conduct was concealed; the conduct was intended to obtain a conviction, not to push the defendant into moving for a mistrial before verdict. The prosecutor's misconduct in this case is materially different from that described in Kennedy and is not -- to say the least -- clearly covered by the Kennedy rule.

In addition, the Circuit’s review of the case was limited by the fact it came to the court under the Antiterrorism and Effective Death Penalty Act (AEDPA). While Hawkins argued for an extension of the Kennedy rule to his case, AEDPA limited his chances for creating any groundbreaking rulings to deal with this kind of prosecutorial misconduct: 

Congress through AEDPA has limited the ability of federal courts to grant a writ of habeas corpus. We are limited to those cases where the state court reached a decision that was contrary to, or an unreasonable application of, clearly established federal law as set out by the Supreme Court. This case is not one of those cases. The federal courts, under AEDPA, lacked the authority to interfere with the Alabama conviction.

Hawkins will now stay in jail.

In footnote 4, the Circuit Court also made this comment about the AEDPA:

To have their decisions protected by AEDPA from federal court interference, the state courts need not be innovative or prophetic about the direction the Supreme Court will go and go there first. The state courts must fully, faithfully and reasonably follow legal rules already clearly established by the Supreme Court of the United States. The state courts cannot narrow the Supreme Court's legal rules, but state courts are not obliged to widen the rules. Whatever AEDPA is or was intended to be, AEDPA is no Congressional command for activism in the state courts.

From this and the other AEDPA decisions I’ve read, it seems like this case is a good example of the Federal courts respecting Congressional intent. Congress wanted to reduce some of the second-guessing that can sometimes occur when a Federal court reviews a state court’s decisions. The Circuit Court’s reversal of the District Court here should act as a reminder of that purpose.

I’m no fan of overzealous prosecutors, but this opinion smells about right.

January 27, 2003
Taking the Plunge 2003

It's time for this year's Polar Bear Plunge.

About 2,000 folks with more charitable impulses than working brain synapses will run into the Atlantic Ocean just off the Rehoboth Beach Boardwalk on Sunday, February 2, at about 1 p.m. Several thousand others will be on hand to hoot, cheer, and hold the towels and blankets.

I am happy to report that my younger daughter will be running into the ocean next Sunday, along with several buddies in her student government association.

She will maintain the family tradition, in which at least one of us immerses ourselves for the sake of Special Olympics.

Last year's event raised well over $300,000 in about 35 seconds.

I wrote a short post about the Plunge last year, and followed it up with a second piece describing the actual experience of diving into very cold water on purpose.

This time I plan to remain on the beach, and join my wife in holding the blanket for our daughter to run into as she sprints back to the beach.

If any readers of SneakingSuspicions click on the bear below and make a pledge, and also take the additional step of letting me know about it, I will duly note your participation here, with great thanks. There's a link at the Polar Bear site for online contributions, and you can also send contributions directly to the following address:

Special Olympics Delaware
University of Delaware
Newark, DE  19716-1901

In case you were wondering about taking the Plunge yourself, the ocean water temperature today is about 33 degrees Fahrenheit, and it's highly unlikely to warm up any by Sunday.

That's a bit beyond refreshing for most sane types, but it's your choice.

Click on the bear to make a Polar Bear Plunge Pledge for Special Olympics, if you'd like.

Thanks for your consideration!

January 26, 2003
Winter at the Beach

Our dog Rocky joined my younger daughter and me in a walk around the Point this afternoon.

The Point is the tip of Cape Henlopen, where the Delaware Bay meets the Atlantic Ocean. We started on the Bay side, and walked around to the Ocean side to return to the state park's parking lot.

It was a great day for a stroll along the beach, as these two pictures show:

This view looks north toward the point, from the Delaware Bay side. By the way, that's ice piled up along the shore edge, not saltwater foam.

This is one of the area's two lighthouses, along the inner breakwater. There is a small patch of open water beyond these ice floes.

January 26, 2003
The Graceless Whipsawing of Maureen Dowd

I haven’t been reading Maureen Dowd lately. Something about her tone seemed just too consistently bitter to expect any enjoyment out of the process.

This morning was an exception, based on a short post by Glenn Reynolds noting her sorta-kinda retraction of her carrying forward the faulty TIME story about wreath-laying at the Confederate Memorial.

This portion of Dowd’s column was graceless, as it turned out. To the extent the piece expressed remorse at being caught up in TIME’s error, it was vitiated by the kind of whipsawing that also appeared in the main subject of her essay.

Is this column indicative of her usual work?

Consider the following:

The first whipsawing begins with the lead paragraph, in which Dowd makes a few snarky remarks about the Superbowl, the ads that run during the game, and how men are slaves to their appetites for snacks, beer, and sex.

Nothing too original here.

Then she veers off to note a USA Today story discussing alleged libidinal changes among men and women, a direct challenge to the stereotyping she relied upon in her opening.

In fact, the column’s first five paragraphs are only a long lead-in to the apparent object of her disaffection, Defense Secretary Donald Rumsfeld—except that even then she can’t help whipsawing a second time.

Dowd slams Rumsfeld for his recent remarks about Vietnam draftees, while carefully avoiding any mention of his written apology for those statements.

She then cites other “Rummy” expressions of macho attitude, and quotes both French and German officials for their reactions.

She shifts her intended irony toward Secretary of State Powell, calling him the Administration’s “flower child.”

The whipsawing takes place immediately, however, as Dowd’s talent for snide is aimed right back at the French and the Germans. She notes their “condescending yapping,” and compares the current situation to the 19th Century continental hauteur described in the novels of Henry James. In an unsubtle reference to 20th Century events, Dowd continues her attacks on the Europeans:

The allies have no moral authority on the subject of standing up to tyrants who invade their neighbors and gas their own people. And they have no interest, as American conservatives do, in helping Israel by getting rid of Saddam.

At last, Mr. Bush has found a compelling rationale for his Iraq policy: France and Germany are against it.

After reading this essay, I’m left wondering exactly what Dowd’s own position on the Hussein matter might be. She’s obviously no fan of the Bush Administration, but seems to take equal glee in slamming the Europeans who oppose the Administration’s urging for direct action against the Iraqi dictator.

Even if both sides deserve this kind of whipsawing snarkiness, where is she? What is Dowd’s solution? Is this just an opportunity to take shots at others without providing alternatives to those which Dowd seems to so dislike?

If so, there’s not much point in taking her seriously.

The whipsawing then concludes with the commentary about the wreath-laying. It also has the benefit of being wrong again, this time on the comparison she uses to blunt her grudging semi-admission that she should not have relied on the TIME story in a prior column:

Time has since corrected the story, saying [Bush] didn't revive the custom, but simply continued it.

I would still ask: Why keep a tradition of honoring the Confederacy while you're going to court to stop a tradition of helping black students at the University of Michigan?  

As John Rosenberg could explain in detail, there was no such “tradition” of assisting students at Michigan, at least while giving that word its usual meaning. The point-giving challenged by the Bush Administration is of recent vintage, and it replaced a flawed unconstitutional attempt at increasing black enrollment.

In any event, if a government has a tradition of treating others unfairly because of their race, why should that tradition be respected?

On the other hand, respect for the dead common soldiers from both sides of the Civil War is a honorable tradition. I don’t recall Ms. Dowd challenging either of the last two Administrations about the same practice.

If this column is typical of her recent work, I’ll probably take a break from reading any more of this Dowdiness for awhile.

Note: for more on Ms. Dowd and others who have literally troubled themselves over the TIME error, click here and here.

January 26, 2003
Puzzle pieces

We really enjoyed watching Adaptation last night, the new movie starring two Nicholas Cages.

The film brought back together director Spike Jonze and writer Charles Kaufman, who made the fun but out-there Being John Malkovich.

When we saw Malkovich, my wife and I had very different reactions. I was fascinated, and she couldn’t stay awake.

This time we both liked the movie, and found ourselves laughing either lightly or loudly together during many scenes.

In one respect, Adaptation reminded me of one of the consistent elements of the movies written and directed by M. Night Shyamalan.

In The Sixth Sense, Unbreakable, and Signs, there was no cheating. Each piece of the plot needed to make sense of the conclusion was presented during the film. Sometimes the clues were hidden in plain sight, but they were there nonetheless. In each case most of our post-movie moments were devoted to confirming that fact.

Adaptation also gives legitimate hints throughout the movie about the ending, while remaining sufficiently ambiguous to leave viewers hanging on every word and visual clue.

Great puzzle. Great fun.


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Fritz Schranck
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