Sneaking Suspicions
Archives-- October 19-25, 2003

This page includes posts from October 19-25, 2003 in the usual reverse order. Each posting on the home page is perma-linked to these archive pages.

October 25, 2003
Sea Witch Festival

I haven’t seen every movie John Sayles, has made, but I’ve been impressed with every one that I have.

The most recent example, Sunshine State, literally hit home thanks to the many parallels between the basic plot line and how things are in and around Rehoboth Beach.

The quiet action takes place in a fictional Florida town called Delrona Beach, on an island called Plantation Island. It’s based on Amelia Island, near Jacksonville, where the American Beach development provided a haven for African-Americans, who were barred from white resorts before the Civil Rights Act of 1964 outlawed that kind of discrimination. Now the two previously separate communities are struggling with the problems created by rampant real estate development, exemplified by the characters portrayed by Angela Bassett and Edie Falco.

This is how Sayles described the setting:

What I found was an island with all the elements – old and new, “Mom and Pop” businesses and corporate chains, gated communities, history as myth and tourist attraction, real estate as the hotly contested central issue in politics and parallel racial enclaves, all crammed into a relatively small area.” The characters in SUNSHINE STATE quickly sprang forth – “they evolved from the idea of black people and white people living parallel lives that occasionally intersect. One woman is realizing she needs to leave, while the other is discovering that she may be able to return.” 

Rehoboth Beach’s racial history also includes a separate black enclave, called West Rehoboth. It’s now facing significant development pressure, with new high-priced residential housing selling quickly on nearly all sides of the modest rental properties at the end of Hebron Road. 

This weekend’s scheduled events in Rehoboth also dovetail very nicely with another plot element in the movie. 

Mary Steenburgen plays Francine Pinkney, who’s in charge of putting on the town’s annual Buccaneer Days celebration. 

She works at a feverish pace for what turns out to be an extremely modest event, and I’m being kind. 

At one point she complains to her husband, "No one realizes how hard it is to create a tradition." 

Fortunately, sometimes the real world is not as dismal as its fictional counterpart. This year is the 14th edition of Rehoboth’s Sea Witch Halloween and Fiddler’s Festival

Several thousand kids and alleged adults are expected to march in the popular costume parade, while others will take part in a broom-tossing contest and other events all weekend long.

Younger daughter and the rest of the Cape Henlopen High School Marching Band will lead the costume parade. At some point I think we'll be watching the musical action among the fiddlers, banjo players, and bluegrass artists.

The festival started as a way to stretch the summer season into the fall, in the hopes that the hotels, restaurants, and other tourist-dependent businesses could make a few more dollars. Compared to the way this place used to nearly shut down after Labor Day, it’s safe to say that Sea Witch and the other “shoulder season” events have worked out very nicely.

Update: Younger daughter’s description of the Sea Witch parade: “Oh, you know, the usual—witches, Harry Potters, witches.” 

We went downtown in the early evening near sunset, and the crowds were almost summer-like, with the significant seasonal difference that hundreds were in costumes. 

A very good bluegrass band, whose name I didn’t catch, finished the music playing at the bandstand with a fine version of Crawdad Hole.

Starting around 6:30 p.m., most of the businesses along Rehoboth Avenue kept someone stationed near their doors, handing out treats to the kids, many of whom were in amazing outfits.

At one store, the young clerk handed out beaded Mardi Gras necklaces, and was approached by two small children. The little blonde girl looked just like Alice of Lewis Carroll fame, and the little boy was in superhero garb. The girl, who may have been 6 years old, said in a very mature, Alice-like voice, “You’re giving out necklaces? I like necklaces very much!”

The young boy was not nearly as impressed.

October 24, 2003
Something seems a bit off-key

We love New Orleans

It’s impossible to walk around the French Quarter without smelling the familiar scents of Louisiana cuisine, or hearing the familiar sounds of Louisiana music. In and around Jackson Square, in fact, it’s not at all uncommon to enjoy a wide range of talented musicians and bands playing, with an open bucket or instrument case set out for contributions, as shown in this picture from our trip last July:

A small combo adds to the enjoyment of Jackson Square, New Orleans, July 2003. The contribution bucket is in the lower right corner.

We’ve also been fortunate to be able to see the Preservation Hall Jazz Band perform at their famous old building every time we’ve visited the Crescent City. 

Frankly, those musical memories are what made the Fifth Circuit’s student-loan bankruptcy decision so intriguing when I read it yesterday. 

Jonathon Gerhardt built up a hefty $77,000 pile of government loans to further his musical education at the University of Southern California, the Eastman School of Music, the University of Rochester, and the New England Conservatory of Music. He’s now a cellist for the Louisiana Philharmonic, and a part-time cello teacher at Tulane University. 

He’s also been a bit short on paying back those student loans—actually, a lot short. 

Gerhardt filed for bankruptcy under Chapter 7 in 1999. The record showed that he had only paid back $755 on those loans. 

Filing for bankruptcy won't necessarily wipe out all one's debts, however. Under the bankruptcy code, these government-funded obligations can only be eliminated if it would be an “undue hardship” not to exempt the debt from discharge. 

Like the word “reasonable,” the term “undue hardship” can support a wide range of meaning. 

The Second Circuit’s Brunner decision adopted a now-widely accepted definition in this context:

(1) that the debtor cannot maintain, based on current income and expenses, a “minimal” standard of living for [himself] and [his] dependents if forced to repay the loans; (2) that additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans; and (3) that the debtor has made good faith efforts to repay the loans.

Gerhardt now has the distinction of providing the impetus for the Fifth Circuit’s adoption of the Brunner definition. 

He may not feel so honored, however.

The Circuit panel upheld the lower court’s decision that he didn’t qualify for debt relief, primarily because of the second part of the Brunner test: 

[P]roving that the debtor is “currently in financial straits” is not enough. … Instead, the debtor must specifically prove “a total incapacity. . . in the future to pay [his] debts for reasons not within [his] control.” [citation omitted].

The court felt that Gerhardt didn’t measure up to this standard, as it were: 

Evidence was produced at trial that Gerhardt earned $1,680.47 per month as the principal cellist for the Louisiana Philharmonic Orchestra…. His monthly expenses, which included a health club membership and internet access, averaged $1,829.39. He is about 43 years old, healthy, well educated, and has no dependents….During the LPO’s off-seasons, Gerhardt has collected unemployment, but he has somehow managed to attend the Colorado Music Festival. Although trial testimony tended to show that Gerhardt would likely not obtain a position at a higher-paying orchestra, he could obtain additional steady employment in a number of different arenas. For instance, he could attempt to teach fulltime, obtain night-school teaching jobs, or even work as a music store clerk. Thus, no reasons out of Gerhardt’s control exist that perpetuate his inability to repay his student loans. [note omitted].

The Court also made the following comment, which applies to many other professions besides music: 

[N]othing in the Bankruptcy Code suggests that a debtor may choose to work only in the field in which he was trained, obtain a low-paying job, and then claim that it would be an undue hardship to repay his student loans. [citation omitted.] Under the facts presented by Gerhardt, it is difficult to imagine a professional orchestra musician who would not qualify for an undue hardship discharge.

To me, that's the really odd thing about this case.

Here's a musician, in New Orleans, who can’t seem to make enough to pay down his government loans. 

Something seems a bit off-key about this situation, considering what appears to be a remarkably vibrant level of musical opportunity there, even for a cellist.

For his sake, I hope things turn around.

October 23, 2003
It would be so much easier to believe your good intentions if you hadn’t spent the money

Crystal and Robert Foster will learn their fate today, as they appear in Federal Court in Richmond, Virginia for sentencing for their tax fraud convictions.


Robert Foster told his daughter Crystal to file income tax returns that had the effect of seeking reparations for the slavery imposed on their ancestors. The process was relatively simple, while remaining completely illegal:

…25-year-old Crystal Foster claimed she had overpaid taxes on long-term capital gains in 2000. She listed the fictitious ``Black Capital Investments'' fund of the U.S. Treasury as the source of the gains.

According to an AP story that ran on the NYT website, Crystal picked up a nice round $500,000 refund check with this one false claim.


She didn’t take long to go through the cash, either:

…Foster had spent the money in eight days, buying a $40,000 Mercedes Benz, paying off her student loans and helping her brother pay for his first year at Virginia Tech.

The report outlined the surprising scope of this particular tax scam, and well as the government’s change in approach to enforcement against it:

[M]ore than 80,000 tax returns were filed in 2001 seeking nonexistent slavery tax credits, totaling $2.7 billion. More than $30 million was mistakenly paid out in slave reparations in 2000 and part of 2001.

That number dropped significantly last year after stepped-up scrutiny of tax returns and an aggressive media campaign targeted against scam artists promising to secure tax credits for blacks.

But the government has also begun quietly cracking down on filers of false claims after years of looking the other way.[!!?!!--ed.]

In an interview, Robert Foster tried to depict his daughter and himself as merely using the tax code to express a legitimate grievance about the evils of slavery and the historical responsibility of the Federal government for not ending it until the Civil War:

“This was not an effort to defraud the U.S. government,” he said. “This was purely a protest against the U.S. government.”

Pardon me, but I don’t think so.


To be blunt, it would have been a whole lot easier to accept Foster’s claim of “protester” status if she hadn't already spent the refund money on that Mercedes Benz and the other items.


Those inconvenient facts make it so much harder to think this maneuver was borne out of only the finest public-spirited impulses, don’t you think?

October 22, 2003
Unsafe at 55?

When it comes to roadway speed limits on much of the country’s highway network, there’s a whole lot of civil disobedience going on.

Glenn Reynolds reminded me of this phenomenon with his recent column at Tech Central Station about the social impact of Citizen’s Band radios

As Glenn pointed out, the rise of CB radio roughly coincided with a mass protest against the imposition of the national 55 mph speed limit in the mid-70s. In the case of CBs, people simply bought the devices and didn’t bother with the formal licensing requirement, which led to that rule’s elimination. As for the speed limit, folks pushed back in two ways—first, by ignoring it; and second, by pushing for a political reversal, which was finally achieved in 1995. 

As with most government regulations, the people who came up with the 55 limit had good intentions. It was originally set as a fuel economy measure, and in fact it’s still in place in much of the country’s urbanized areas. It still plays a role in the Federal government’s oversight of how states control their highway systems, as well as in dealing with the ongoing Clean Air Act compliance issues.

Nonetheless, in most places I’ve traveled both in Delaware and the rest of the country, folks just don’t stick to the posted 55 mph limit.

There are some fundamental reasons for this behavior other than sheer cussedness. 

Mostly, it doesn’t feel right—and I mean that literally.

Traffic engineers set posted speed limits by first performing speed studies. They observe how people actually drive a segment of highway, and try to determine two sets of data: the speed at which at least 85% of the drivers actually travel (the .85 percentile rule), and the 10 mph range within which most drivers keep while on that part of the highway.

Several other factors are used, such as roadway geometry, potential safety conflicts, and crash data, but those first two elements are the most important.

The road itself is the underlying element in all those analyses (and again I mean that literally). Modern-day highways (those that aren’t simply repaved colonial-era paths, at least) have a design speed limit built into them, especially on their curves. Drivers literally feel that limit while they drive, as their cars react to the road shape underneath.

Going too fast on a highway curve can produce the same sense of impending loss of control as it does in a NASCAR race. However, it's equally true that going too slow doesn't quite feel right.

Most folks pay attention to the sensations produced by a road's built-in design speed, regardless of the posted speed limit.

Most of the dual (4-lane) highways built since WWII used design speeds on their curves that went well beyond the 55 mph limit. In Delaware, for example, the expressways such as I-95, I-495, and the tolled portions of State Route 1 were built with 70 mph design speeds. 

Interstate 495 and SR1 now use 65 mph posted speed limits, but eliminating the 55 restriction on these highways also had the effect of increasing the 85th percentile speed traveled by drivers on many other roads, where the 55 limit is still in place. 

Based on my non-scientific observations, in fact, I have the distinct impression that the 10 mph range within which most people drive on these other roads is now well beyond 55—more like 65-75 instead. 

For example, most of the 40 miles I commute each way to work are on a dual highway with a posted 55 mph limit. When I first began making this trip over a decade ago, the average commuter’s driving speed seemed to keep to about 62. Nowadays the average commuting speed seems to be closer to 68. They go even faster when a clot of drivers drafts behind a state trooper. The police cruisers are famous around here for not bothering to keep to the speed limit while on routine patrol. 

As one might imagine, enforcement is also a bit lax. When most people ignore the posted limitations, it must be hard to single anyone out from the bunch.

Perhaps the General Assembly will take the not-so-subtle hint being given by the state’s drivers, and do something about it.

It's not like Congress will stop them.

Note: Thanks to Charles Kuffner and DJH of Exit Stage Left for a quick correction to when the 55 mph limit first came into being. It was 1974 (Nixon time) and not during the Carter Administration.

October 21, 2003
Annals of Crime

Bank robbers have it tough, largely because as a group they appear to be more mentally challenged than other criminals.

Many of them just don’t seem to understand that financial institutions use a variety of security measures with the specific intent to make it difficult to rob a bank and successfully escape prosecution. These steps include training their employees to make good identifications of the folks trying to stick them up. 

Considering the stories one frequently reads and hears about bank robbers being caught and convicted, one would think that other would-be Willie Suttons might perhaps pick up a clue about the high risks and modest rewards of this particular crime. 

One would be sadly mistaken, even for those who attempt to use disguises. 

Dennis Lee Sypolt, for example, decided that putting purple make-up on his face would be just the thing to keep a bank teller from successfully fingering him. 

It didn’t work. 

In fact, nothing worked all that well during Sypolt’s subsequent trial, during which the following damaging facts came out:

  • The bank teller identified him, and told the jury Sypolt was wearing purplish make-up during the robbery.

  • A witness to the robbery took down the license number of the car Sypolt used to escape from the bank.

  • Several witnesses told the jury that they saw Sypolt driving the car on the day the robbery took place.

  • The police apprehended Sypolt in the car shortly after the robbery.

  • After being given his Miranda warnings, Sypolt confessed.

  • Footprints in the bank matched Sypolt’s shoes.

  • The authorities recovered the money from the robbery, and traced it to Sypolt.

  • When the police stopped him, Sypolt had purplish make-up remnants in his mustache. 

On appeal after his conviction, Sypolt tried another option—attacking the trial judge.

At least at first blush, it looked like he might have had a point: 

In the present case, the district judge twice stated in open court that "[e]ven as great a lawyer as [Mr. Sypolt's attorney] is, she can't get this guy off."

Sypolt’s counsel argued that the trial judge should have recused himself from the case, urging that the terms of 28 U.S.C. Section 455(a) required the judge’s withdrawal when his “impartiality might reasonably be questioned….” 

The Eighth Circuit panel disagreed:

[T]he statute does not extend literally to any kind of doubtful behavior. The Supreme Court has specifically held that "expressions of impatience, dissatisfaction, annoyance, and even anger" are not sufficient to trigger the statute. [citation omitted]. And where a judge' s opinions are based on "facts introduced or events occurring in the course of the current proceedings," those opinions warrant recusal under § 455(a) only if they "display a deep-seated favoritism or antagonism that would make fair judgment impossible." [citation omitted]….

As a matter of decorum, we make the respectful suggestion that trial judges ought not to declare a defendant's case hopeless from the bench. But in this case, the judge made the relevant comments out of the presence of the jury; furthermore, when his remarks are viewed in context, it is clear that he was simply trying to goad the prosecution into expediting its case. Thus, the judge's comments seem to fit squarely into the category of stern though perhaps short-tempered efforts at courtroom administration….


I also have the impression that the strength of the case against Sypolt may have played a dual role in this proceeding.

First, the judge may have felt that a plea bargain was a far smarter option than a full-blown trial. Perhaps he was not pleased with the fact that no such option was taken. Second, the overwhelming evidence of guilt may have also induced just the tiniest bit of impatience in the judge, especially if the prosecution was a little too methodical in its presentation. 

That’s just supposition on my part, but it’s based on experience.

In any event, perhaps during his stay with the Federal correctional officials, Sypolt will work toward a better career path after his release than his current status as a wretchedly incompetent bank robber.

There’s always hope.

October 20, 2003
New study says more poor folks buy lottery tickets than any other income group.
Gee, what are the odds?

I took a single course in sociology as an undergraduate over thirty years ago, and was unimpressed. 

For the most part, it appeared that the practitioners of this particular social science dedicated themselves to obtaining detailed statistical proof of what everybody already knew. 

I'm sure that’s unfair to sociologists, whom I’m also sure hear that sentiment expressed elsewhere many times. It’s entirely probable that some very well done studies refute this claim, perhaps even to a level of statistical significance. 

It still seems to be true, however. Today’s story in the News-Journal tends to confirm the impression:

Study: Poor players spend most on Md. lottery

A recent analysis of lottery records and census data by the Maryland Department of Planning shows a correlation between ZIP codes with high lottery sales and poor neighborhoods.

The study finds that districts that sell the most lottery tickets per person have more poverty, more minority residents and more high school dropouts than elsewhere. Many of those districts are in Prince George's County and Baltimore, but they also are in rural areas.

The headline itself is worth a few Claudes.

The real news would have been if Maryland’s experience didn’t fit this common-sense notion.

Nearly everywhere else that state-run lotteries are in place, similar data are obtained. A report to the National Gambling Study Commission showed that annual per capita spending by lottery players averaged $597 for households with under $10,000 income, while households with incomes ranging between $50,000 and $99,999 averaged $225 per player per year.

Similar disparities vary by education, a substantial proxy for relative wealth. High school dropouts average $700 per year, while college graduates spend $178.

A study done for the Kentucky Lottery produced not-so-remarkably parallel results.

The policy issues that these facts raise are well worth considering.

For example, legalized gambling has been so successful that any proposal to eliminate or reduce it faces a significant hurdle.

The News-Journal story notes that our immediate neighbor to the west depends heavily on legalized gambling for government support. Even without slots, last year Maryland’s lottery netted $456 million, its third-largest source behind sales and income taxes. Delaware’s Fiscal Year 2003 net from all gambling, including its video lotteries (slots) was $213 million, and was also the third-largest contributor to its General Fund.

If anyone wanted to wipe out state lotteries or other legalized gambling, they’d be hard-pressed to come up with a politically palatable replacement for all that lost revenue.

The subheadline for the News-Journal story included another familiar element to the gambling issue:

Critics say slot machine proposal would further exploit disadvantaged

That’s a nobly-expressed sentiment. If it were children we were discussing, I would agree.

Unlike income or sales taxes, however, the government revenue from state-sponsored gambling originates from entirely voluntary actions by adults who know what they’re doing. The same studies that note the income group participation disparities also show that the people who play the lotteries have a good sense of the actual odds, have a good idea how much they actually spend, and generally accept the notion that there’s an entertainment element to the purchase that makes it worth the money—for them, if not those who claim to speak on their behalf.

There’s no question that the extent to which lower-income groups participate in legalized gambling, especially where the states take a nice piece of the total haul, adds to the regressive nature of most state revenue systems. On the other hand, the fact that the government doesn’t force anyone to spend their cash on lottery tickets cuts against the arguments about the unfairness of it all.


Contact Information:

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


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© Frederick H. Schranck 2002-2003