Sneaking Suspicions

Archives--March 3-9, 2002 (Week 9)


Commentary from a practical perspective

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

March 9, 2002

Fun with Publisher97

I enjoy the creativity and humor of the folks at Despair.com

The company's "motivational products" and  recent events inspired the following little bit of fun:

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Hope you like it.

Linking Blog Note: Jim Treacher has a collection of his brutally funny, self-described clip-art nonsense on this same subject here. The critical crew at creatical.com also joined in with appropriately snarky art. To use a TV phrase, I'm actually joining both sites in progress.

March 9, 2002

Texas lawyer reaches new low

Sometimes I can’t understand why some of my fellow attorneys talk to the media.

What they say only seems to make it worse for their clients.

Yet another recent example arose in the gruesome case now developing in Texas.

Chante Mallard, a nurse’s aide, confessed to drinking and using Ecstasy one night last fall. While driving home, she hit Gregory Glenn Biggs, an out-of-work bricklayer. The impact forced the victim through the windshield.

According to the Star-Telegram:

She panicked, she said, and with the man lodged in the windshield, she drove a few miles to her home. There, she parked her 1997 Chevrolet Cavalier in the garage and lowered the door.

Biggs pleaded for help, she told police.

He got none. Not then, or for the next two or three days, as he remained lodged in the windshield, bleeding and slowly going into shock, police said.

Mallard told police she periodically went into the garage to check on the man. She said she apologized profusely to him for what she had done but ignored his cries for help.

When the man died, several of the woman's acquaintances helped remove his body, putting it into the trunk of another car and driving to Cobb Park, where they dumped it, police quoted the woman as saying. Two men found the body Oct. 27.

The Associated Press story reported the official cause of death:

The medical examiner's office said Mr. Biggs suffered no internal injuries and apparently died from loss of blood and shock.

Criminal defense attorney Mike Heisell represents Mallard. The reporter for the Star-Telegram wrote that Heisell

called the woman's arrest on a murder warrant premature.

"I think this is overreaching on the part of the prosecution and the police, and in the end, I believe the law will shake out that this was simply a case of failure to stop and render aid," Heisell said.

I know I’m not completely impartial here, but I don’t think so.

This crime is obviously no mere "failure to stop and render aid" case.

Within the first hour after the accident, Mallard’s conduct took her well past Heisell’s astonishing description. Mallard’s reported confession shows she went far outside the limits of the accident reporting statute, and crossed the line to where a murder charge fits.

Most states have adopted some form of "stop and render aid" statute. The relevant Texas Transportation Code provision appears to be found at Section 550.021. Accident Involving Personal Injury or Death.

On the other hand, the Texas Penal Code establishes a range of more serious potential charges relating to criminal acts causing death. In addition to capital murder charges, where the death penalty may apply, defendants may also be found guilty of non-capital murder and criminally negligent homicide.

Horrible as this case is, without more facts I have some trouble thinking this warrants capital murder treatment. Thus far the facts seem to fit either of the other two non-capital murder changes, which nonetheless carry far more significant penalties than the Transportation Code section.

Heisell’s statements should be recognized for what they are--painfully lame attempts at spin control, part of a completely inadequate, infuriating effort to deflect well-deserved horror and condemnation.

It won’t work.

Instead, during the upcoming criminal proceedings Mallard and her attorney must somehow address the questions raised by the victim’s mother:

"How could she just leave him like that to die?" she sobbed. "Drugs and alcohol wear off, so why didn't she get him some help?

See also Duncan Fitzgerald’s March 7 comments on this case, aimed at Mallard herself.

March 8, 2002

Where you sit shouldn't necessarily dictate where you should stand.

As part of my representation of my primary clients, I have accompanied them to meetings with officials of the U.S. Army Corps of Engineers, at the Corps' Washington headquarters building on the 400 block of G Street NW.

This fairly nondescript office building sits only a few blocks from the Capitol.

One of my less-experienced clients once asked me why the Corps offices are not located at the Pentagon with the rest of the Defense Department.

Naiveté can be charming, don’t you think?

I explained that many in Congress do not actually consider the Corps to be part of the Defense Department. For them it is the Federal equivalent of a city public works department.

Congressmen want the Corps close by so that they can more easily influence if not directly micromanage the process of developing and implementing their favorite little Corps projects in their districts, just like some of them did for city public works contracts back when they were city councilmen.

In that context, keeping the Corps’ offices near the Capitol building just makes sense. It’s a simple matter of appropriate geography.

At times, some within the Corps of Engineers also displayed a tendency to assume their agency is a part of Congress and not part of the U.S. Army. Some Corps operatives are masters at schmoozing Congressmen. Others are at least as adept at earmarking favorite projects during the legislative process as the prototypical Senator Foghorn Leghorn. These officials are also perfectly comfortable with their geographic proximity to Congress.

Their true loyalties literally lie close by.

If it wasn’t clear before now that our current President might not choose to play along with this cozy arrangement, yesterday’s story in the Washington Post certainly should have made the point.

Congress recently approved Michael Parker’s appointment as the Assistant Army Secretary for Public Works.

Parker apparently wasted no time in setting himself on fire:

He had made no secret of his disdain for the Office of Management and Budget's efforts to rein in the Corps, and recently told a sympathetic House committee that he had requested $2 billion more than the OMB proposed in the president's budget. At a Senate hearing, he questioned the administration's decision to fund no new Corps projects, adding that he did not have a "warm and fuzzy feeling" for OMB officials.

It’s not as if Parker's past history gave no hints that he might prove more loyal to the Corps than to the President:

Parker, an undertaker from Laurel, Miss., was elected to Congress as a Democrat in 1988. He switched to the GOP in 1995. But his allegiance to the Corps -- and disgust for the OMB -- never wavered. At a hearing in 1998, he assailed the Clinton administration's proposed Corps budget cuts: "When in the hell did OMB start mandating and deciding what was going to happen in this country?"

The Bush Administration’s perfectly appropriate requirement that its appointed officials show allegiance to the President’s policy choices ran headlong into Parker’s apparent sense of invulnerability.

"Either you're on the president's team or you're not," an administration official said.

Parker resigned March 6.

Good.

From the reported comments of Senators Lott and Conrad and others, I assume the Bush Administration will face a consequence or two from this little personnel decision. To me, it still seems worth the trouble, in order to make the point that blatant insubordination won’t be tolerated.

Click here for this week's golf column, if you're interested.

March 7, 2002

New candidate for a Claude Rating

New Rules in Zimbabwe Likely to Aid Mugabe's Side

I give this one two Claudes. The headline would have rated at least four Claudes if it had also included the word "election." Readers were forced to read the story’s first paragraph to understand the total context.

On the plus side, the sources used for the story used the word "concerned," which for Claude rating purposes is synonymous with "shocked."

March 7, 2002

Please don’t confuse a cynic with a satirist

Words have meanings that should be respected.

I saw a quote yesterday that proved to me that some folks need to be reminded of this fundamental principle.

The Associated Press ran a story on the Web about the Ted Rall cartoon concerning the widows from the attack upon the WTC. Here are the relevant portions:

The New York Times pulled the cartoon from its Web site Tuesday afternoon, when the company received feedback from widows and New York 1, the TV channel that broke the story.

A spokeswoman for the newspaper, Christine Mohan, said the "subject matter was inappropriate" and regrets that it ran.

In a statement, Rall and the syndicate acknowledged the cartoon's sensitive subject matter, but did not apologize.

"Pushing the envelope of polite criticism is what editorial cartoonists do," the statement said. "Rall represents a point of view that will not be everyone's opinion. He is looking at a recent news events with the cynical eye of a satirist."

With all due respect, no, he’s not.

Calling Rall a satirist does violence to the real meaning of the word.

Unlike Rall, a true satirist uses irony, ridicule, and other literary devices with the best of honorable intentions. Here is how Robert Harris describes it:

The best satire does not seek to do harm or damage by its ridicule, unless we speak of damage to the structure of vice, but rather it seeks to create a shock of recognition and to make vice repulsive so that the vice will be expunged from the person or society under attack or from the person or society intended to benefit by the attack (regardless of who is the immediate object of attack); whenever possible this shock of recognition is to be conveyed through laughter or wit: the formula for satire is one of honey and medicine. Far from being simply destructive, satire is implicitly constructive, and the satirists themselves, whom I trust concerning such matters, often depict themselves as such constructive critics.

Cynicism, on the other hand, displays a far darker attitude. There is little if anything constructive about the sneering disdain for others that marks the true cynic.

To be cynical is to be

contemptuously distrustful of human nature and motives.

The word

implies having a sneering disbelief in sincerity or integrity.

I will concede Rall has a "cynical eye." I will not concede that his work places him anywhere near the pantheon of true satirists such as Swift, Pope, or Twain.

Rall’s cartoons, especially this latest cruel bit of work, show no sign he hopes to use his art to create an incentive toward better behavior or beliefs. He is merely a bitter misanthrope, of the type perhaps best described by Oscar Wilde:

A man who knows the price of everything and the value of nothing.

Perhaps the NYT is coming to the same realization, even if his syndicate's spokesperson has not.

March 6, 2002

Prayer for the dead

As I drove to work this morning, I noticed a Fox News television van parked outside the main entrance to Dover Air Force Base.

I don’t normally become emotional at the sight of television cameras, but this was different.

They were here to cover the return of the dead from the fighting in Afghanistan.

Dover AFB is the military’s primary mortuary. Those who die abroad in the service of their country are brought here to be prepared for their eventual resting place, whether at Arlington National Cemetery, some other national burial ground, or in a simple family plot next to a church in a small town.

With his own experience at Dover, Sergeant Stryker could better describe how his fellow Air Force members carry out their honorable tasks. Those of us who are civilians in the area normally pay our respects from a distance, as the planes carrying the brave fly over us on their approach to the runway.

After the attack on the Pentagon on September 11, the dead victims were brought here in huge black helicopters, usually flying in pairs. My office is less than a mile from the base, and for a few days I heard the unmistakable sound of rotor blades and engine noise announcing their arrivals.

The distinctive noise usually produced an involuntary welling up in my eyes, and the need to stop what I was doing and say a short prayer for the dead.

Seeing the camera van today caused the same reaction.

When you have a chance today, please take a break from your routine to thank these fine soldiers, sailors, and airmen for their sacrifice and devotion to their country and their fellow citizens. And after the prayer, resolve to continue the fight in their honor, until the last vestiges of this scurrilous attack on fundamental human decency are completely defeated.

Others will inevitably join these fallen few on their journey through Dover to their final destination. Sometimes there is no escaping that awful price to preserve liberty. Those in uniform who serve the rest of us know that best of all.

Let’s just make sure that this time their sacrifice will not be in vain.

March 5, 2002

Filing for bankruptcy won’t always wipe the tax slate clean

Each year as April 15 approaches, the news media begin running stories about income taxes. It’s also not unusual for the federal government to time some of its more notorious tax prosecutions for the early spring, for maximum publicity.

There’s nothing like a juicy tax case to help spur voluntary compliance.

The unanimous Supreme Court bankruptcy decision yesterday may also help achieve that goal, although it’s not at all obvious that was the Court’s intent. It’s more likely just a coincidence.

It’s actually a tax case, however, and the details are certainly messy enough.

Mr. and Mrs. Young owed a lot of income taxes for 1992. After obtaining a six-month extension, they filed their return in October 1993, with a tax debt of about $15,000. A few months later, the IRS assessed the tax liability. The Youngs began making monthly payments by April 1994, but stopped them after November 1995.

Instead, in May 1996 they filed for bankruptcy under Chapter 13. This is the individual version of Chapter 11, where our corporate friends at Enron and Global Crossing are currently sheltered.

Under both Chapters, the debtors are allowed to keep creditors at bay while they try to obtain a court-approved reorganization, through Bankruptcy Code provisions called "automatic stays."

These stays are obviously popular with debtors, and viewed by creditors with nowhere near the same equanimity.

The Young’s Chapter 13 filing stymied the IRS efforts to collect on the remaining $13,000 or so they owed. Nearly six months later, however, they gave up on the reorganization idea, and asked the Bankruptcy Court to dismiss their petition.

The Bankruptcy Court did not act immediately on the Young’s suggestion. In May 1997, the couple filed another petition, this time under Chapter 7, for an approved no-asset bankruptcy that would discharge all debts owed to unsecured creditors, including the IRS.

In a great bit of probably unintentional timing, the Bankruptcy Court approved the Young’s dismissal of their Chapter 13 petition only one day after the Chapter 7 petition was filed. A few months later, the Court approved the Chapter 7 petition, discharging their debts.

At least, the Youngs may have thought they were free and clear. Undaunted, however, the IRS kept after them for the outstanding taxes.

In response, the Youngs argued that the statute of limitations had expired for the IRS to collect on the 1992 tax debt. In essence, they claimed they could use the automatic stay provisions under Chapter 13, and then use that same time frame against the IRS when they filed their subsequent petition under Chapter 7.

The Bankruptcy Court ruled against the Youngs, ruling that the time spent in Chapter 13 protection could not count toward the statute of limitations for tax enforcement. The Court restored their 1992 tax obligation, and refused to discharge the debt.

The District Court and the First Circuit Court of Appeals also ruled against the Youngs on appeal. They fared no better before the Supreme Court. As Justice Scalia noted:

[T]he lower courts properly held that the tax debt was not discharged when the Youngs were granted a discharge under Chapter 7.

Tolling is in our view appropriate regardless of petitioners’ intentions when filing back-to-back Chapter 13 and Chapter 7 petitions whether the Chapter 13 petition was filed in good faith or solely to run down the [limitations] period. In either case, the IRS was disabled from protecting its claim during the pendency of the Chapter 13 petition, and this period of disability tolled the three-year [limitations] period when the Youngs filed their Chapter 7 petition.

As I said, it’s a messy case. On the other hand, the IRS now has another story it can use to help persuade others to pay their taxes.

March 4, 2002

The gun test

Several bloggers, including Dale Amon, Andreas of More Than Zero, John Cole, William Quick, and Justin Slotman recently announced their personal results from the Web’s gun personality test.

Pretty impressive firepower, all told--a truly stunning display of modern-day technology.

Nonetheless, several of the deadly weapons depicted in the results frankly reminded me of Jean Baptiste Emanuel Zorg, the wonderfully evil character played by Gary Oldman in one of our family’s favorite movies, The Fifth Element.

You may recall Zorg’s rapturous sales pitch:

Voila: the ZF-1. It's light. Handle's adjustable for easy carrying; good for righties and lefties. Breaks down into 4 parts, undetectable by x-ray; ideal for quick, discreet interventions. A word on firepower. Three thousand round clip with bursts of 3 to 300. With the Replay button (another Zorg invention) it's even easier. One shot, and Replay sends every following shot to the same location. And to finish the job, all the Zorg oldies but goldies. Rocket launcher. Arrow launcher, with explodin' and poisonous gas heads. Very practical. Our famous net launcher. The ALWAYS efficient flame-thrower. My favorite. And for the Grand Finale, the all new "Ice Cube System!"

My own taste in firearms tends toward far less complex but nonetheless fully effective, highly practical expressions of persuasive ability—to wit, my Remington Model 870 Wingmaster 12 gauge shotgun, and my Harrington & Richardson single-shot, bolt-action .22 caliber rifle.

Guns just don’t come much simpler than these two.

I’ve owned the rifle and shotgun for well over 30 years. They remain in fine working order, although I haven’t had occasion to use either of them recently.

About 11 years ago I managed to qualify for marksman status under NRA rules with my rifle, despite the fact that it suffers from a serious sighting problem. Shooting a bulls-eye requires aiming at the left edge of the target paper, about a half-inch up from the center.

Shotguns are far more forgiving, and I learned at age 15 not to be too picky about the results.

One cold winter morning, my father and I sat quietly in a goose blind in a farmland marsh north of Bombay Hook National Wildlife Refuge.

As we looked out over the pond in front of our blind, three Canada geese approached from our right, flying in a straight-line formation. They began to set their wings for a landing in the pond.

My father whispered that he would watch me take the shots alone. He also reminded me to make sure I aimed far enough in front of the first goose to take it out.

As the geese came into range, I stood up and led my barrel in front of the first goose.

I fired off two quick rounds.

The third goose fell from the sky like a stone.

As we left the blind to retrieve the bird, I told my father that the goose I aimed for was not the goose I shot.

Dad laughed and said, "Son, next time don’t ever tell anybody that. If a bird falls, you tell 'em that’s the one you were shooting."

I have always appreciated my father's wise counsel.

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March 3, 2002

Louisiana justice system update

Last week I commented on the Marlo Charles rape trial. Steven Den Beste had posted a short piece in which he challenged the evidentiary strength of DNA evidence to be offered in the trial. I reacted to his suggestion of a possible reason why the case was going forward.

The trial’s over now, and the jury convicted Marlo Charles of aggravated rape.

Nonetheless, I’m not so naive as to think that the issues raised in this case are completely resolved.

When Clyde Charles was originally convicted almost 20 years ago of the same crime, the jury was all white. DNA evidence that could have cleared him was not available at the time, and the State of Louisiana initially fought against its use in Clyde’s case for several years.

As discussed previously, the DNA evidence eventually cleared Clyde, but also implicated his brother Marlo.

The jury for Marlo Charles’ trial had the following makeup: ten whites, two blacks, with a seven-five split favoring women. The prosecutor noted that the racial split matched the area’s overall population. The defense counsel, Robert Jenkins, said

"I believe in the jury system, and I think we’ve got a fair and impartial panel – that’s what this is all about."

During Marlo’s trial, his brother Clyde took the stand as a reluctant prosecution witness. He admitted that his own defense counsel (now dead) had raised the possibility that Marlo was the actual rapist, but disavowed his attorney’s trial strategy.

"I did not tell him how to do his job," he said.

In addition to the victim’s testimony, Marlo Charles’ jury also heard evidence from the police officers who interviewed Marlo. Here’s how a local reporter described it:

The detectives, Darryl Stewart and Malcolm Wolfe, testified about the tearful confession they witnessed when they asked Marlo Charles if he had let his brother take the blame for what he had done.

The detectives said that Marlo Charles nodded yes when asked if he had raped the woman and if DNA tests would prove that fact.

Jenkins emphasized, both during cross examination of the two men and in his closing argument, that no video or audio recording was made of the interview and Marlo Charles never signed a statement or written confession.

A recently enacted Louisiana law also affected the trial. Over strenuous objections, the judge permitted evidence of a 1997 Virginia rape implicating Marlo Charles to be introduced. That Virginia case never went to trial because the victim disappeared.

Finally, the jury also heard the DNA evidence. The state’s expert explained the limitations of the 1981 sample. In addition,

She told the panel that ... Marlo Charles could have produced the sperm and that only one in 71,400 black people could possibly have the same exact profile.

To buttress the point, another witness detailed the parish’s racial population data from the last three decennial censuses. The numbers ranged from just under 19.000 in 1980 to under 15,000 in 2000.

In a move that may come back to haunt, the defense put on no direct testimony after the prosecution ended. The closing arguments were reportedly fierce.

Sentencing looks to be a relative formality, with Marlo Charles facing a life sentence. His appeal will start shortly thereafter.

The defense counsel felt that the Virginia rape evidence played a large part in his client’s conviction.

"When the judge let in the 1997 rape, it was highly prejudicial," Jenkins said. "The jury had to feel, ‘Once a rapist always a rapist.’"

From all the reportage, it looks like the appeal will center on the effect of the new law, rather than the DNA evidence issues.

Still, one additional nagging question remains. The victim identified Clyde Charles the night of the rape, shortly after he was taken into custody. How could the victim have confused the two brothers that awful night?

Police said the brothers knew about the mix-up and switched clothes the night of the crime. They said the victim was then confused by the mugshots.

Nice theory. It certainly would have helped achieve a just and timely result if the police had found any evidence to prove it, back when they arrested Clyde Charles the first time.



Contact Information:

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

fschranck-at-sneakingsuspicions.com


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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.

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© Frederick H. Schranck 2002