Sneaking Suspicions

Archives--February 24-March 2, 2002 (Week 8)

Commentary from a practical perspective

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This page includes posts from the site's eighth week, February 24-March 2, 2002 in the usual reverse order. Each week's postings are perma-linked to these pages.

March 2, 2002

Reasons for optimism amidst tragedy

During the State of the Union Address, President Bush said the following:

In the sacrifice of soldiers, the fierce brotherhood of firefighters, and the bravery and generosity of ordinary citizens, we have glimpsed what a new culture of responsibility could look like. We want to be a nation that serves goals larger than self. We've been offered a unique opportunity, and we must not let this moment pass.

This week I witnessed an example of what the President described.

On Wednesday, February 27, I was heading home from work. Traffic on State Route 1 in Sussex County is light during the winter, especially during the weekdays, and the cars and drivers are usually familiar fellow long-distance commuters. Most of us were speeding along at the usual 10 miles above the 55-mph limit.

As I neared a slight curve to the left about 11 miles from home, I saw a wide array of emergency flashing lights a few hundred yards ahead. What looked like two volunteer fire company engines and a rescue vehicle blocked the two southbound lanes. Two damaged vehicles sat in skewed positions just south of the fire engines. One was a dull red Nissan pickup truck. I later learned the other, more heavily damaged car was a Pontiac.

Volunteers from the State Fire Police were also beginning to set up roadblocks, with their familiar blue lights winking on the roofs of their cars. Another Fire Police volunteer pulled up to the scene from the two-lane side road that formed the T-intersection where the accident occurred.

The half dozen cars I was traveling with slowed down and moved to the right shoulder.

As I neared the scene, I could see what happened.

A gas station/liquor store sits at the T-intersection. There’s a crossover for traffic heading north on Route 1. The car headed east directly from the gas station to reach the crossover to go north.

Tragically, the driver apparently didn’t see the oncoming pickup truck when he made his move.

The truck plowed into the car directly at the driver’s door.

As I passed by the scene, I watched a volunteer firefighter kneeling over one of the victims on the ground in the middle of the southbound lanes. His hands pumped up and down in the familiar crossed pattern recommended for administering CPR.

The southbound traffic turned right onto the two-lane road and shortly turned left onto another road for the detour. I looked to the east and saw the State Police helicopter beginning its descent to the accident scene.

I learned later that the 60-year-old driver of the Pontiac was not wearing a seat belt, and died of multiple injuries. The CPR didn’t work.

His 25-year-old passenger was transported to a hospital 15 miles away for a hip injury. The driver and passenger of the pickup truck, both of whom were wearing seat belts, were taken to a closer hospital for their injuries.

Traffic was detoured from the area for about two hours, as the State’s Fatal Accident Investigation Response team began their investigation. At this point no charges have been filed.

My quick count at the scene as I passed it, about 10-15 minutes after its reported occurrence, was that at least a dozen volunteers, either firefighters or fire police, came to help at this accident. Along with the state police, they made every effort to save the man’s life, but were unable to overcome the severity of the impact.

Every day thousands of volunteers across the country make similar heroic attempts to help others in equally distressing circumstances. Many times they succeed. Sometimes they can’t. They try anyway.

I’m not sure to what extent the events of September 11 may have galvanized some of us to take on a greater responsibility for others than before the planes hit the towers. As this example showed, however, there are reasons for continued optimism about our fellow citizens’ acceptance of community obligations in the midst of tragedy.

March 2, 2002

A slight correction

Will Vehrs’ very kind description of our Mini-Blogger Bash in Richmond, Virginia yesterday may have given his readers the impression it was the blogger equivalent of My Dinner With André.

The great 1981 movie, written by and starring actor/playwright Wallace Shawn and New York theater director André Gregory, centered around a dinner between two friends, after a long spell in which they’d lost contact with each other.

Gregory regales Shawn with stories of his exotic encounters, searching for life’s purpose.

Shawn is far more pragmatic, capable of finding meaning in his far more grounded experience.

The fact is that Vehrs and I are both Wally Shawn.

We had a great first lunch together. The conversation with the gracious co-host of Quasipundit ranged far and wide. We found common ground in unexpected places--middle-aged twinges from knee injuries dating back to the high school track team; moving to a new area after taking a new job, with accompanying lifestyle changes; bureaucracies, public and private; and even a classic six degrees of separation connection with a former State of Delaware cabinet official.

I look forward to our next lunch. It’s my turn to pay.

March 1, 2002

The home of corporations, credit cards, chickens, and--bloggers?

Daniel Taylor, of Dreaded Purple Master fame, made the following comment about legislation after citing Punditwatch’s quotation from David Brooks in The News Hour:

However, the open secret that no one dares acknowledge in Washington is that nobody knows what half of these bills say. It's far easier to identify the hands that made them and vote on that basis than to actually read all these laws. Who has time for that?

Taylor may have a point. I’m not sure anyone reads every bit of federal legislation. On the other hand, my professional responsibilities happen to include reading all of the bills introduced into the Delaware General Assembly.

Any state agency as politically sensitive as transportation requires early notice of proposed laws that could affect it.

Hundreds of bills are introduced in the Delaware House and Senate each session. Fortunately, the State constitution requires almost all bills to be limited to a single subject, which admittedly makes the task easier.

If a legislative proposal affects my client, I notify the affected Division to develop a response for eventual transmittal to the Governor’s Office. I do the legal analysis, but more often it’s just a matter for the DOT staff to explain the policy implications.

Here’s a new proposal that might interest the blogger community—House Bill No. 398. It creates a series of state tax incentives to encourage "Internet Commerce Companies" to establish a presence in Delaware. The definition includes entities that

engage[] solely in one or more of the following activities:

(1)  selling, licensing or leasing intangible products or services via the Internet;
(2)  providing informational or multimedia content via the Internet in return for advertising revenue or for sale, license or lease;
(3)  facilitating via the Internet contacts, transactions or relationships via the Internet between or among persons or entities;
(4)  generating revenue through placement of hyperlinks on a Website referring to other Websites, whether such revenue is based upon number of impressions, the number of click-throughs to the destination Website, a percentage of the revenue generated on the destination Website or some other manner;
(5)  providing access to the Internet;
(6)  other similar activities via the Internet as the Director by regulation may prescribe; and
(7)  ancillary activities relating to the foregoing.

If this bill passes, and anyone ever figures out how to make blogging profitable, at least we know where the registered office should be located.

Click here for this week’s golf column, if you'd like.

February 28, 2002

If you’ve been stacking bodies, don’t be surprised if the charges also stack up.

The gruesome Georgia cremation fraud case highlighted a missing element in the Peach State's criminal code.

Apparently there’s no major criminal law against piling up dead bodies you promised to cremate and didn’t.

Instead, District Attorney Herbert E. Franklin charged the defendant, Ray Brent Marsh, with 118 counts of misdemeanor theft, two for each of the bodies thus far discovered.

According to the NYT story about this issue,

One count is for taking money for cremations and not performing them, the other for not returning the proper ashes.

On conviction, each charge could lead to a sentence of up to a year in prison.

Mr. Marsh’s problem (among others, including an apparently deeply diminished sense of decency) is that the sentencing judge can make the terms of imprisonment run consecutively.

The District Attorney should be applauded for using a fairly standard prosecutorial tactic and elevating it to new heights, given the community’s justifiable outrage about this case.

Any new legislation to make this alleged conduct a felony simply can’t apply to Marsh. A minor quibble called the constitutional prohibition against ex post facto laws can ruin all the fun sometimes. (Article I, Sections 9 and 10.)

Nonetheless, the defense counsel is understandably upset:

The string of identical charges is becoming "tiresome for the court," said Mr. [McCracken] Poston, a former state legislator, at a recent bond hearing for Mr. Marsh. "We want to stop having to come back here for a bond hearing every time a body is identified," he said.

I imagine he would. I’m also sure that his concern for the judiciary did not go unnoticed.

Judge William J. Day, the county's chief magistrate, did not accept Mr. Poston's argument that the district attorney was abusing the legal system, and other prosecutors say Mr. Franklin may have hit upon an effective strategy.

It works for me. If convicted, Marsh will face the tender mercies of the judge, whose discretion in sentencing could modify the full effects of the district attorney’s creativity.

Or not.

February 27, 2002

An extra hurdle for prisoners too often ready to sue

A unanimous Supreme Court decision issued February 26 shows that at least on some occasions the Court is more than willing to give full credit to legislative intent, perhaps especially if it will help the judiciary.

For years, state prison inmates have swamped the federal courts with thousands of lawsuits. Usually characterized as civil rights claims, the cases ranged from alleged beatings by the guards, to overcrowding, all the way down to the quality of the food being served in the prison cafeteria.

While the vast majority of these suits were frivolous, a few had actual merit. Even so, it was hard to wade through all the dreck to find time to deal with the legitimate claims.

The caseload also put a strain on the state governments defending against these claims. When I joined he Attorney General’s Office in Delaware in 1987, for example, several Deputies dealt solely with prisoner cases, well out of proportion to the normal assignment pattern. Periodically several of the rest of us would be assigned the overflow.

On most occasions the courts would dismiss these cases as part of motion practice, but sometimes they would actually go to trial.

One of my federal "prisoner trials" took two days. The jury was out for only 10 minutes before they returned with a verdict for the State.

I tend to think the jurors used half that time to put on their coats and talk about where to go for lunch.

Congress tried on two occasions to lighten the prisoner caseload. It passed legislation in 1980 that in some cases forced inmates to exhaust their available administrative remedies within the correctional system before filing in federal court.

That first attempt proved inadequate to stem the prisoners' determined efforts to pass the time while incarcerated by clogging up the courts. Accordingly, Congress tightened the law’s requirements even further on their second attempt. The Prison Litigation Reform Act of 1995 (PLRA), 42 U.S.C. 1997e(a), barred any action

brought with respect to prison conditions under [42 U.S.C.] section 1983 , or any other Federal law, by a prisoner until such administrative remedies as are available are exhausted.

Apparently the Second Circuit Court of Appeals didn’t take the hint.

In 1999, Ronald Nussle, an inmate in the Connecticut Department of Correction, filed a Section 1983 lawsuit alleging that in 1996, prison guards not only singled him out for harassment, but had also beaten him severely. He barely met the three-year statute of limitations deadline for filing the litigation.

The Department had an available grievance process for his claim, but Nussle sued first without filing his grievance under that administrative system.

The District Court, for whose benefit the PLRA was enacted, speedily dismissed the case. Undaunted, Nussle then appealed to the Second Circuit, which reversed the lower court. The appellate judges decided that the term "prison conditions" as used in the new law didn’t apply to a single incident claim alleging a beating by the guards.

After reviewing the legislative history and considering its own precedents on prisoner litigation, the Supreme Court begged to differ with the Second Circuit:

[W]e hold that the PLRA’s exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.

Writing for the Court, Justice Ginsburg took careful note of both Congressional intent and the practical realities of a workable administrative grievance process:

Beyond doubt, Congress enacted [Section] 1997e(a) to reduce the quantity and improve the quality of prisoner suits; to this purpose, Congress afforded corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case. In some instances, corrective action taken in response to an inmates grievance might improve prison administration and satisfy the inmate, thereby obviating the need for litigation… In other instances, the internal review might filter out some frivolous claims…. And for cases ultimately brought to court, adjudication could be facilitated by an administrative record that clarifies the contours of the controversy [citations omitted].

She stated that Congress’ consideration of past Supreme Court precedents in enacting the PLRA also supported the conclusion that the Second Circuit’s interpretation was too limiting, and in fact those decisions

tug[ged] strongly away from classifying suits about prison guards use of excessive force, one or many times, as anything other than actions with respect to prison conditions.

Based on my past experience in defending against meritless prisoner cases, I have no problems with the Court's reasoning in Porter v. Nussle. It makes perfect sense.

February 26, 2002

And how would you like to pay for your ride downtown during rush hour?

Jeff Jarvis wrote a short note recently about a British government proposal for satellite tracking of cars for tax purposes.

He was not pleased:

As my father would say: This is bassackwards.

If people are driving, it's because they want to and need to. One of government's most fundamental jobs is to accommodate that need with roads.

If anybody ever tried that in America, there'd be a revolt. Come to think of it, maybe this explains why we did revolt.

Perhaps Jarvis would be surprised at the extent to which satellite-tracking technology and other high-tech devices are already used hereabouts for transportation. In addition, thousands of highway users already pay road use taxes tied directly to their actual mileage.

There are significant legal and technical hurdles to applying the British satellite proposal to motor vehicles in this country, but the fundamental problem remains—how to pay for the actual costs of transportation services.

All states charge fuel taxes. Car owners pay them when they fill their tanks. The gas station location determines which state collects the tax, regardless of where the cars go after their tanks are full. Federal fuel taxes are collected at the same time.

No state makes any effort to collect fuel taxes based solely on the mileage each car travels within its own borders. That kind of tax system would be an administrative nightmare, over and above the resulting political suicide if such a proposal were ever made.

On the other hand, all 18-wheel tractor-trailers pay road use taxes that are directly tied to the mileage each truck travels in each state. The International Fuel Tax Agreement, mandated by the federal government, provides the administrative framework for road use taxation. It includes quarterly reports, fuel economy calculations, and a financial clearinghouse arrangement among the states and Canadian provinces.

Similarly, large trucks pay apportioned tag registration fees, again tied to the mileage traveled in the states in which they operate. This is called the International Registration Program. One of the interesting side effects of its creation was to bring all states’ registration fees closer to each other. Some states that formerly enjoyed a snappy little side business with their low truck tag fees had to amend their tax code when the IRP went into effect, to make up for the lost revenue.

Many states also use the EZPass electronic toll collection system, or similar technical replacements for fully staffed toll highways and bridges. This arrangement of technologies uses radio transmitters, fiber optic data lines, and a financial clearinghouse arrangement very similar to the credit card industry. Faster toll transactions produce a huge increase in volume through the tollbooths.

A few states, including my clients, use EZPass technology on overhead gantries. Cars and trucks pay their tolls while continuing to blast along at 65 mph.

One of the additional benefits of EZPass technology is that under the right circumstances, it can be used for time-of-day pricing that helps reduce congestion, the ultimate goal of the British proposal. The Port Authority in New York instituted such a system on its Hudson River Bridges:

The implications are encouraging. Total traffic delay at the toll plazas was significantly decreased without a significant increase in total costs to highway users. In addition, there were some small revenue gains for the road operators. Using time-of-day pricing on congested roads appears to be an efficient means of reducing the dead-weight losses associated with delay.

Nonetheless, this system would not have worked without the peculiar geography of Manhattan Island or other limitations on access. Without the ability to make similar arrangements on the dozens if not hundreds of roads leading to major population centers that are not on islands, it would be extremely difficult to use this technology for that purpose.

In addition, the EZPass system is based upon the voluntary choice of its users to sign up for it. Requiring an EZPass transponder in each car is a herculean if not practically impossible task.

Both the private and public sectors use satellite technology for limited vehicle tracking purposes. My clients’ transit division uses it to identify the location of its buses. That information is then fed through to electronic signs that tell transit users when the next bus will reach a particular bus stop.

The British proposal would use the equivalent satellite technology to institute time-of-day pricing for congestion relief, with monthly billing of the users. That eliminates the gantry problem and other technical issues that universal use of the EZPass technology model would require, but I believe it would be impractical at best for the United States. The sheer relative scale of such an enterprise here in America is daunting just from a technical demand standpoint.

In addition, and unlike Great Britain, the legal problem would be to set up an enforceable tax collection billing system that would apply to citizens from other states. Unlike the current fuel tax arrangement for cars, in which the states essentially agree not to make a big issue over where the mileage is used within each state, the British satellite system would depend upon it for congestion reduction. That brings back the same political problems avoided by the current fuel tax arrangement for cars, the primary source of the congestion that business and governments would like to see reduced.

Both the British officials and the more sane transportation officials in this country admit that they cannot build their way out of congestion. There are, in fact, practical limits to how the government can "accommodate that need with roads." The current toll systems and other available technologies provide limited ways to manage the problem, but it’s difficult at best to see how the British concept could ever be successfully instituted here.

No revolt is necessary.

February 25, 2002

Match Game

Megan McArdle linked via David Tepper to a very interesting web site. It asked a series of ethics questions that required careful analysis to answer honestly, and then compared the responses to the closest philosophical match.

My first three matches were Aquinas (100%), Aristotle (93%), and Mill (81%). My wife’s first three matches were Hume (100%), Stoics (85%), and Nietzsche (82%). She says my results were on the money, and also thought hers made sense.

From my perspective, I thought her third match may have also provided a possible reason for our long marriage, based on one of his more famous quotes:

"That which does not kill me makes me stronger."

February 25, 2002

Why go to trial?

Steven Den Beste’s comments frequently start me down unexpected paths.

Today’s experience was typical.

Citing a Washington Post/AP story, Den Beste wondered why a rape case was proceeding to trial, when DNA test results showed only a 1 in 71,400 chance that the defendant was the culpable party. He felt this was "pretty damned good evidence for acquittal," and bet he knew the answer:

This is, after all, out in the sticks in loosiana; how much you want to bet that the victim was white and the accused has dark skin?

I think I can explain why this trial is happening, based on my own modest prosecutorial experience of long ago, and what I learned by surfing the Web today.

  1. There is a real victim here. Yes, she happens to be white and the defendant charged with the crime happens to be black. Unlike other cases, however, not even the defendant’s family disputes that the victim was indeed bit, beaten, and raped. This is not some modern-day Louisiana version of To Kill a Mockingbird .
  2. This case is literally related to Barry Scheck’s good work on behalf of Clyde Charles, the brother of the current defendant, Marlo Charles.
  3. Clyde Charles was initially convicted of the crime, and was cleared with the use of DNA evidence not available at the time of his original trial in 1982. Louisiana waited until Scheck filed a lawsuit before it eventually agreed to consider the DNA test, which is the reason for the last several years of delay.
  4. The DNA evidence to which Den Beste refers is by no means the only evidence on which the prosecution will rely for its trial this week. There are some additional elements. Here’s what the local newspaper says:

A comparison of Sheriff Office mug shots show that the brothers, born only 19 months apart, bore a striking resemblance to one another in the early 1980s.

And Marlo, like Clyde, had been in the area when the rape occurred.

In April 2000, two Terrebonne detectives traveled to Hampton, Va., to talk to Marlo Charles.

Police say that during that interview, conducted at the city police station in the presence of a Hampton police officer, Marlo tearfully admitted that he was guilty.

The written transcript of that interview says that, by way of headshakes and nods made in response to questions, Marlo Charles told police he attacked the Grand Calliou woman and let his brother take the blame.

The local paper also reported that Marlo Charles’ defense attorney unsuccessfully attempted to keep the detective’s testimony from trial, but the trial judge ruled it was admissible. Of course, Marlo Charles’ lawyer will still have an opportunity to challenge the officer’s testimony during cross-examination.

Even with the admittedly modest probative value of the DNA analysis, I believe there was sufficient evidence to support the Marlo Charles indictment, and for his trial to be held.

Den Beste is certainly entitled to be skeptical. Louisiana’s sorry history of race relations in general and Clyde Charles in particular are not points of pride for that state’s citizens. I also do not envy the difficult task the state’s delay will now cause the prosecutors as they try to obtain a just result. Even so, the case seems to be worth trying. The race of the victim and the race of the new defendant looks to be entirely irrelevant.

There’s another reason why Louisiana should still press forward, despite its prior miss-steps:

[Sheriff Jerry] Larpenter [of Terrebonne Parish] said he has talked with the rape victim since Marlo Charles was arrested. "I think she's finally going to have closure for her life. She has been fearing 'If it's not Clyde Charles, who is it?"

February 24, 2002

I give it four Claudes

For those who appreciate irony, newpapers are a constantly replenishing source of supply.

Some stories create an instant smirk or two simply upon reading the headline. Others may take a few paragraphs before exhibiting telltale signs of obviousness, banality, or stunning cluelessness, masquerading as actual news or intelligent insight.

I suggest a new rating system for such stories—a sort of blogger shorthand for "news" reporting that makes one think perhaps the author was still recovering from being hit upside the head with a 2 by 4 when the piece was written.

As a long-time movie buff, I offer for your consideration "The Claude Ratings," in honor of the great actor, Claude Rains.

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Recall this classic bit of ironic dialogue from his role as Captain Louis Renault, in Casablanca:

Renault: I'm shocked, shocked to find that gambling is going on in here!
[A croupier hands Renault a pile of money]
Croupier: Your winnings, sir.
Renault: [sotto voce] Oh, thank you very much.

Here are some recent examples of how these ratings would apply:

That’s probably worth about two Claudes.

The headline alone is worth at least three Claudes.

This one required reading the full story to determine its Claude rating:

Enron lobbyists and executives took part in 25 meetings and telephone calls with federal energy regulators as the government grappled with California's soaring electricity prices.

While none of the meetings or phone calls were believed to be illegal, [U.S. Senator Barbara] Boxer said she was ``disturbed that during the period of time that California consumers were begging for relief from the price gouging electricity crisis, Enron was engaging in an active campaign to get close to the top [Federal Energy Regulatory Commission] FERC decision-makers.''

Four Claudes, easily; note Boxer’s use of "disturbed" in place of the classic "shocked."

To be fair, I certainly appreciate the fact that most reporters don’t write their headlines. Accordingly, when deciding how many Claudes to give to unintentionally ironic journalism, please be careful to distinguish between a thuddingly dense headline and the story running below it.

The innocent continue to need our protection.

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