Sneaking Suspicions

Archives--February 3 - 9, 2002 (Week 5)

Commentary from a practical perspective

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This page includes posts from the site's fifth week, February 3-9, 2002 in the usual reverse order. Each week's postings are perma-linked to these pages.

February 9, 2002

I took advantage of a break in the weather today to investigate closely the new bunkers and other improvements at the golf course.

Meeting this critical need cut into the limited time I had available for writing today.

The weather report for tomorrow looks promising for an essay or two.

February 8, 2002

Acting on nostalgic impulses can be risky

Tonight I will finish reading one of my Christmas gifts: Bored of the Rings. I read it the first time over 30 years ago, during high school.

The new paperback edition is shamelessly designed to cash on the new, great Lord of the Rings movie release.

As with many successful parodies, BOTR depends on topicality for most of its humor. In this case, it requires large reserves of current events knowledge from, say, 1930 through 1970.

That’s fine for those of us of a certain age. Nonetheless, as I giggled my way through the references to Zazu Pitts, the Jolly Green Giant, and certain recreational chemicals, I wondered how many current college students would understand enough of BOTR's cultural clues to laugh along with it.

At times, it was a struggle to recall why a particular passage must have been so amusing to Henry Beard, Doug Kinney, and the rest of the Harvard Lampoon staff who put it together.

On other occasions, reading it again felt like a mistake. My memories of how funny the book was in 1970 didn’t quite jibe with the experience in 2002.

It reminded me of a prior instance of acting on nostalgic impulses and then wishing I hadn’t.

Several years ago, I rented a copy of the 1960 Disney version of Swiss Family Robinson from the local video store. It was a childhood favorite of mine, with great action, scary adventure, pirates, and a really cool tree house. Best of all, one of the kids was also named Fritz!

As I watched the video as a middle-aged adult, though, I began to regret seeing the movie again. It just wasn’t very good.

Since then, I’ve been more careful about dredging up old favorites to watch them again. When I have the urge, I tend to conclude that it would be better if I simply held onto the pleasant memories, and didn’t risk losing them with a too-clear reminder that my tastes or interests have changed.

Now, if we’re talking about Wizards, that’s a whole ‘nother story.

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I keep a mounted print of a full-size movie poster very much like this graphic in my office. It seems to fit well with my profession.

For your added enjoyment, click here for this week's golf column.

February 7, 2002

The DA and the DNA

Steven Den Beste linked to a Washington Post story about a recent John Doe indictment in Onondaga County, New York, in a 1997 rape case with a 12-year-old victim. Apparently the five-year statute of limitations for prosecuting the crime was about to expire, so the District Attorney obtained the indictment to keep the case alive while they kept searching for the scumbag.

I’m sorry. I meant to say "alleged scumbag."

In criminal fraud cases and other circumstances, prosecutors sometimes don’t have the correct name of a defendant. Nonetheless, they possess enough other descriptive information that an indictment can be issued by a grand jury. John Doe indictments are perfectly legal in these cases, subject to proof that the person described is the person eventually arrested and put on trial.

In the past, the descriptive information would refer to aliases the defendant used, or a blend of aliases and physical characteristics. The unusual feature about the New York indictment is that it is based solely upon a DNA profile.

Den Beste thinks that the indictment is flawed, and would lead to an eventual dismissal, if the guy turns up and is eventually arrested.

The question is whether that really is a legal indictment.

It strikes me that it is not, and if they actually find someone who matches that DNA profile in a year or two, he can legally challenge it. And they would not then be able to indict him again by name because of the statute of limitations.

This seems to be an attempt to overturn the whole point of the statute of limitations.

The issue is, as some might say, not entirely free from doubt. Nonetheless, I think a court would not rule that the DA was attempting to preserve an eventual prosecution by illegal means. It’s just an option the prosecutor can take under unusual but appropriate circumstances, such as this horrible crime.

Here’s an explanation from a Milwaukee, Wisconsin prosecutor that makes sense to me:

"The statute reads that to issue a warrant, you must name that person, but if you don't know his name, you have to describe that person to a reasonable certainty," said Norman Gahn, an assistant district attorney with the Milwaukee County District Attorney's Sensitive Crimes Unit. "And I think that a person's genetic makeup far exceeds that reasonable certainty."

A famous New York District Attorney made headlines using the same approach almost a year ago:

… Manhattan District Attorney Robert Morgenthau announced an indictment against a man known to New Yorkers only by his tabloid moniker, the East Side rapist. But the city's forensic scientists know the rapist by genetic identity: John Doe, an unidentified male, with Deoxyribonucleic Acid (DNA) profile: 6, 12 at TPOX locus; 10, 11 at CSF1PO locus; 14, 15 at D3S1258 locus; 23, 26 at FGA locus; 17 at VWA locus; 3.2, 5 at F13A1 locus; 8, 9.3/10 at THO1 locus; 11 at FES locus.

Bear in mind that by using this tactic, the prosecutors must still tie that complex description to the defendant, if he’s ever caught. In addition, the typical problems of trying an old case must still be faced—after all, memories fade and witnesses disperse.

At least the DNA technology gives the prosecutors a chance to right a grievous wrong.

Considering the recidivism rates among felons, they’ll probably have that opportunity.

As for Den Beste’s point about statutes of limitation, several states are dealing with the issue in light of advances in DNA technology. For example, in Delaware and other states there are no time limits for prosecutions of first-degree rape charges. For lesser felony rape or other misdemeanor sex crimes, the Delaware time limits range from 5 years down to 2 years, with two interesting exceptions.

The limitation period expands to 10 years if the prosecution is "based upon forensic DNA testing." In addition, if the victim was less than 18 years old when the crime occurred, an otherwise stale case can be revived if commenced within 2 years of the crime’s "initial disclosure to the state’s Division of Child Protective Services or to an appropriate law enforcement agency." 11 Del.C. Section 205.

For those states with more restrictive time limits, I can still accept the concept of trying to prosecute a case with only a DNA descriptor for the initial indictment. The prosecutors can attempt to push forward the criminal common law, subject to the defense attorneys’ efforts to prevent it and the court’s opportunity to review the use of that discretion.

Sometimes there’s a need to see if the law goes as far as you think. It gives you a concrete example to show the legislature why they should amend it, if the court disagrees with you.

For a child victim of rape, it’s perfectly understandable why you would want to make the effort.

Click here for a similar story from Texas.

February 6, 2002

Another momentary lapse of reason*
(Arguing for property tax reassessments)

I live in Sussex County, Delaware. The county government doesn’t really do all that much, and it doesn’t charge much for it, either. Other than sewer charges and similar user fees, most of the county’s revenues are derived from property taxes, which are extremely low.

In addition to the beaches and the lack of any general sales tax, the county’s low property taxes are drawing in retirees from high-tax jurisdictions, such as New Jersey and New York. The new residents may have paid $8,000 to $10,000 or more in local property taxes in North Jersey, for example. (Note to self: double-check with the financial whiz at More Than Zero Sum.)

Several newcomers are more than pleased to tell me that the total property tax bill for their $200,000 rancher is only $800, now that they’ve moved here. It’s like a giant pension increase for them, and it’s still only a few hours’ drive to see the grandkids.

About $150 of that $800 goes to Sussex County. The rest is a combination of the local school district tax and the county-wide vocational school tax.

As I said, county taxes are really low.

That doesn’t make them fair, however. The last time the County had a countywide property reassessment was 1974.

Since the Nixon resignation, however, this bucolic place of about 1000 square miles has undergone a huge increase in population and development. In the last 10 years, the county’s growth rate far outstripped the rest of the State. Property values, especially in the gold coast along the Atlantic beaches, have skyrocketed.

Meanwhile, the County Council contented itself with lowering the property tax rate. New buildings and development brought in so much new property tax money that the council could easily afford to reduce the rate. They never showed evidence of ever giving a thought about whether the continuing use of a 1974 assessment base for over 25 years made any sense.

It’s actually ridiculous. There’s no rational way to bring a newly built 2002 property back to a defensible 1974 valuation.

It’s not as if there aren’t any negative impacts from the failure to reassess, even in a low-tax environment. School districts rely on the county tax rolls for the local portion of school finance. The State pays most of the education tab, but the local part is still critical. To make up the difference between rich and poor districts, the state uses an equalization formula in distributing some of the state’s education budget.

Without routine reassessments, however, the poorer local districts will inevitably be shortchanged.

School officials raised the issue again this week:

Officials in some Sussex County school districts think they lose thousands of dollars in state aid because the county's property assessment data has not been updated since 1974.

The school officials this week reiterated their concerns to county officials and state legislators, saying the solution is a countywide reassessment that would attach to all properties a current value for use in levying taxes.

For County Council, of course, the issue is not how much is paid, but who is paying it. It's just the good 'ol boy network, and all that.

In addition, of course, there’s the small matter of ensuring one’s re-election:

But county officials said Tuesday they are not convinced the benefits of reassessment would be worth the cost or the controversy.

"This will be the most unpopular thing we do," Sussex County Administrator Robert L. Stickels warned.

Here’s the best explanation of the current situation:

According to a study conducted by The News Journal in 1995, assessment of nearly identical properties in identical locations in the state varied in excess of 50 percent.

Across the state, at least 105,000 properties were taxed more or less than they should have been, the study found.

Owners of newer properties paid more than those who owned older homes. Properties that did not change hands were assessed at lower rates than those that did.

In Sussex County, it was estimated that 68 percent of all properties were assessed too high or too low, according to the newspaper's 1995 study.

The trick for the Council is to keep the total taxes so low that no one will feel compelled to point out who really benefits and who is really being, er, un-benefited by the continued use of a 1974 assessment.

Several years ago, a courageous state senator tried to work a bill in the General Assembly to force Delaware’s three counties to perform routine reassessments. It didn’t happen.

As with other issues, such as legislative redistricting, fixing this little bit of proof that life’s unfair may require a lawsuit or two.

Demographic changes and publicity might help, however. As more people move in who weren’t here in 1974, and as they learn about the decreasing number of old-time residents who are continuing to benefit from the existing system, there may eventually be a political consequence from the failure to keep the property tax system as fair as possible.

I appreciate the fact that the adage to be careful what you wish for because you might get it may apply here.

Nonetheless, "Hope springs eternal…" (Alexander Pope, An Essay on Man, Epistle I, 1733).

*Click here for the first momentary lapse. It's also about taxes.

February 5, 2002

See those awesome open spaces? You’re helping to pay for them. (Now don’t you feel better already?)

One recurring problem in environmental or land use matters is the continuing desire of some people to regulate other people's choices out of existence, rather than pay for the privilege.

Human nature being what it is, the urge to control other people will never go away. On the other hand, the notion that you sometimes have to compensate others when you take something from them seems to be gaining acceptance, which is good.

The Washington Post ran an article about the purchase of development rights in Loudon County, Virginia. Marvin Burkgren, an 82-year-old farmer accepted $650,000 to restrict his 27-acre farm to just farming from now on.

Here’s the fun part:

Burkgren, who bought his farm in 1968, offered to sell his development rights to Loudoun for less than half of what the county's appraiser said they were worth.

Naturally, the Loudon County Supervisors were happy to pay Burkgren less than full value.

The rest of us will be making up the difference, eventually. Here’s how.

Governments acquiring development rights or land for public purposes must always offer just compensation for what they acquire. Nonetheless, landowners don’t have to accept all that is offered to them.

Instead, the acquiring entity, such as the state or the county, still goes through the process of completing the appraisal and offering the owner the full amount. With careful documentation, including the use of IRS Form 8283, the property owners can then obtain a valuable federal income tax deduction for the difference between what they accepted in compensation and what the land was really worth.

And, of course, any income tax system that permits tax deductions or tax credits will make up for the lost revenue somewhere, somehow.

The folks in Loudon County thank you very much for your (indirect) support. Enjoy the views!

If you’d like to see how these sorts of arrangements are set out in legislation, go to the Delaware legislative website, and click on S.B. 250, the FY02 Bond Bill (73 Del.Laws c. 95), at Section 94(c).

This section authorized the Department of Transportation to acquire development rights adjacent to a new interchange planned for the state capital region.

A rural historic district lies directly east of the interchange, and some of the area's landowners also participate in the state’s Agricultural Lands preservation programs. While many people wanted the new interchange built, just as many if not more wanted to make sure that it didn’t trigger a massive change in the character of the area. Buying the development rights takes care of the problem.

February 4, 2002

Better policy through better science--maybe.

The National Academy of Sciences may have done environmentalists, farmers, and other advocacy groups involved in the Klamath River Basin fiasco a big favor, although the players in this drama in the Northwest may be among the last to admit it.

According to the Washington Post today, a team of NAS scientists issued an interim report that essentially tells the competing interests, "Go back and do your homework again."

In a 26-page report obtained by The Washington Post, the academy directly contradicted the Fish and Wildlife Service and the National Marine Fisheries Service, arguing that there was "no substantial scientific foundation" for its April 2001 rulings that the basin's federal irrigation project was threatening the survival of rare suckerfish and salmon.

Those rulings led to an order by Interior Secretary Gale A. Norton placing significant restrictions on water supply for the basin's farmers, who then took up a campaign of civil disobedience and publicity tactics that would have made Abbey Hoffman proud. (On the tactics, that is, not the goal.)

In addition:

The evaluation by the independent academy, conducted at Norton's request, found that far more farm-friendly proposals by another federal agency -- the Bureau of Reclamation, which runs the irrigation project -- were also unjustified by science.

The NAS group carefully noted that they needed to do more work on the matter, and would. If past experience in other environmental issues is any guide, however, the usual suspects on both sides of the matter will be sure to seize what political opportunity they can from what’s been issued thus far.

It's a shame, because the report lays out a pretty compelling argument for more analysis. The evidence thus far indicated that there's no basis for concluding that increasing lake levels above the average high levels reached between 1990 and 2000 would benefit fish populations. They were just as careful to state there was no basis to support lowering the lake levels below the mean minimum levels reached during the same period.

One telling quote and response from the WaPo story bears further comment.

Jim Waltman, director of wildlife and refuges for the Wilderness Society, said the academy was sacrificing logic in its search for clear-cut proof: The fish, he said, are dying -- and fish need water. "This is like saying we can't really prove that cigarette smoking causes cancer," he said. "It's intuitive: lower lake levels will not help endangered fish."

But intuition, the academy suggested, is not the same thing as sound science.

That’s about the nicest way any one could have slammed Waltman for that remark.

Others will not be so kind.

I don’t doubt that there will be continuing fights over the eventual results of the final study.

Just a little warning: If you give people the impression that your mind's made up and you don’t want to be confused by facts, don’t be surprised at the reception you receive.

Full disclosure: I’ve been active in the past with the Transportation Research Board (TRB), an entity of the National Academy of Sciences.

Other links on Klamath: I'm sure that Duncan Fitzgerald will weigh in on this issue, as he has in the past. He also posted a link to another interesting piece about the basin, well worth reading.

February 4, 2002

What should we call him now?

Miles Moffeit’s Knight-Ridder piece in the Sunday Philadelphia Inquirer about the founder of Enron included this little nugget of information:

Fresh from completing his doctorate, Lay sat down with Walker, his favorite economics professor at the University of Missouri, to chat about his future, about paying off his student loans, about his opportunity to work for Exxon Corp.

(Emphasis supplied.)

Considering all the recent punditry about the proper way to refer to the President of Harvard and at least one of its professors, here’s the question:

Should we call him Dr. Lay, or is there a more fitting title?

I'm just asking.

February 3, 2002

Taking the Plunge 2002

As I ran into the Atlantic surf, dodging a swimmer who stopped unexpectedly right in front of me, one thought entered my mind:

"This was a remarkably stupid thing to do."

The 2002 edition of the The Lewes Polar Bear Plunge benefiting Special Olympics was underway.

I kept going forward, and I heard a tremendous roar from the huge crowd of several thousand, much smarter people, watching the action.

Last year, over 1,500 swimmers participated. My totally unscientific estimate is that this year the total went over 2,000.

Then again, the weather was a bit easier to take this time. It was 41 degrees F, with a wind chill running at about 35 degrees. The slight wind blew out of the southwest, thankfully, so at least it wasn't coming in from the ocean.

The water was a relatively balmy 42 degrees, 8 more than the 2000 Plunge.

Here's the basic difference between 34- and 42-degree water. When it's 34, it forces the air out of your lungs as it reaches your thighs. When it's 42, it forces the air out of your lungs after completing your dive.

Well, back flip, actually. The wave was just small enough to refrain from diving into it, but just large enough to earn style points for a back flip over it.

My younger daughter did the grading; this year she stayed on the beach and watched.

Gasping for air, I ran back to the beach, where my wife called out to me while holding my glasses and a towel. The loudspeakers were playing "I Feel Good," but I couldn't really sing along at the time.

I'll update this piece later with the news about the number of swimmers and the estimated money raised in this fun event. Right now it's time to watch my favorite golf tournament, the Pebble Beach Pro-Am. If you'd like to contribute in the meantime, just click on the graphic below.

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UPDATE (February 4, 2002):
The News-Journal this morning says the air temperature was 48 degrees, with the water temperature only 40 degrees. There were 1850 polar bears, who raised over $350,000. Counting the swimmers, over 10,000 people came to the event.

Contact Information:

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

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Official small print disclaimer: This is, after all, a personal web site. Any opinions or comments I express here are my own, and don't necessarily reflect the official position of my work as a government attorney or any of my clients.

That fact may become obvious later on, but it needs to be said here anyway.

Frederick H. Schranck 2002