Tuesday, May 31, 2005

Deep Throat, Dan Cohen, and Damaged Goods

The near-universal praise given to Mark Felt must really stick in Dan Cohen's craw. Felt was just revealed to be "Deep Throat," the anonymous source of Watergate fame.

Ten years after Deep Throat spilled the beans, Dan Cohen was the anonymous source of damaging information about a powerful politician. Instead of a third-rate burglary, it was a shoplifting charge at a Minneapolis department store. The politician was Marlene Johnson, the first woman candidate for lieutenant governor of Minnesota.

During the 1982 Minnesota gubernatorial campaign, Dan was called into a meeting with prominent supporters of Wheelock Whitney, the republican candidate. He later mused that he should have suspected something was up, being a private in a room full of generals. Based on a vague statement by a talk radio host, the Whitney supporters had found the public arrest records and asked Dan to shop them around to local reporters.

With a carefully scripted demand of confidentiality, Cohen revealed the information to several reporters, in turn, in exchange for their agreement not to print his name. Some reporters chose to print the information; others did not. The two daily newspapers in the Twin Cities decided to go with the story, but break their promise to Cohen and print his name. Cohen was fired from his advertising job and Whitney lost the election, as expected.

When Dan Cohen managed to find some work writing brochures for the University of Minnesota Men's Athletic Department, liberal Star Tribune columnist Doug Grow complained loudly. Dan was fired again. How did Doug Grow find out? An anonymous source. This second firing inspired him to finally sue the newspapers for their breach of contract. After many twists and turns, it became a landmark U.S. Supreme Court victory for Cohen and his lawyer, Elliot Rothenberg.

After Wheelock Whitney had resumed his career as a wealthy businessman and Marlene Johnson had served two terms as lieutenant governor, Cohen and Rothenberg were the only ones involved in the case who were worse off after 1982. The court victory was sweet vindication for them.

As I posted earlier, Elliot Rothenberg has written a book about the case. Now Dan Cohen joins him with the release of Anonymous Source. Both books are excellent. When reading both of them, it is interesting how two Harvard-educated lawyers (a fact repeatedly mentioned by the defendants) sitting next to each other in court could see things so differently. The testimony of veteran sports columnist Sid Hartman is either comic relief or a tactical blunder, depending on which book you are reading. Each book fills in interesting details from the trial and numerous appeals.

One thing about Cohen's book is that he can't decide whether to be angry or contrite. The book concludes with an apology to Marlene Johnson. But there still is the lingering question of her conflicting stories about the shoplifting. Cohen and Rothenberg are not perfect, but they come off much better than the numerous bullies who populate the story. For my money, being a hothead who later regrets his actions is one thing. Being a cold-hearted bully who sets out to destroy a person is quite another. Cohen is the former, while Doug Grow and others are the latter.

Anonymous Source shows humility and humanity. Try finding that in a Doug Grow column.
Dragged, Beaten, and Robbed, Part III

Kate Parry, Reader's Representative of the Star Tribune, responded to my complaint about the use of the word "fight" to describe the beating and robbery of a 15 year-old boy:

Dear Mr. Swanson,
The lead of the story uses the word "attack." Further down, the words "dragged," "beaten," and "robbed are used. The story says "He was punched, stomped and kicked in the face before he fled for help..." Finally, in the last paragraph, which is a recounting of Metro Transit policy rather than the individual incident, the word "fights" is used to decribe a broad range of altercations.
I don't think there could be any doubt in a reader's mind after finishing that story just want happened.

Kate Parry
Reader's Representative

I wrote back:

Dear Ms. Parry,

You missed the point. A policy of not intervening in "fights" can make
sense. A policy of not intervening in attacks and beatings does not. Why
quote a policy on fights, unless you think that is what happened in this
instance?

This is also the second time the reporter has referenced the policy on
intervening in "fights."

If the Metro Transit manual does not distinguish between fights and
beatings, that is a story your newspaper should pursue. If the reporter was
just sloppy in writing/reporting, you should admit the mistake.

There is a difference between being a readers' representative/ombudsman and
being an apologist.

--PAS

Monday, May 30, 2005

Dragged, Beaten, and Robbed, Part II

Check out this video of a 15 year-old being dragged off a Minneapolis Metro Transit Bus. The nine suspects are charged with beating and robbing him once he was off the bus. The victim reports that there were racial taunts from the suspects prior to the beatings.

The video confirms the outrageous behavior of the bus driver, who twice warned the suspects that they were on videotape, and then drove away. He might just as well have told them that their DNA would be on the corpse. That you have obtained evidence to later solve a crime does not absolve you of your duty to prevent a crime in progress, particularly when you are a public servant.

Another disturbing aspect of this episode is that the Star Tribune again insists on calling this a "fight." As I said earlier, Nine assailants dragging a 15 year-old boy off a bus in order to rob him does not qualify as a "fight." Please e-mail the reporter and the readers' representative and explain that this was a beating and a robbery, not a boxing match.

Reporter: cxiong@startribune.com

Readers' Representative: readerrep@startribune.com
Bookkeepers, Bolivians, and Privies

Derek Jensen mistakenly lists Vito Corleone's death scene as one of the best. That's not even the best death scene in The Godfather. His near-death shooting with Fredo looking on is better than the vineyard scene.

In honor of Memorial Day, I should mention the freeze-frame death scene at the end of Gallipoli as one of the best. In The Green Berets, there was a tradition of naming various landmarks after fallen comrades. The character of Sgt. Provo whispered his last request, which was to have a latrine named after him, "Provo's Privy."

Butch Cassidy and the Sundance Kid had memorable death and near-death scenes. The cliff jump and the freeze-frame at the end were copied liberally in Thelma and Louise. No, I haven't seen the latter film in its entirety. My chick flick tolerance is pretty much limited to the occasional channel surf by Lifetime. Anything with Cher, Geena Davis, or Whoopi Goldberg is on my "must miss" list. Alan Alda is on double secret probation for chick flick sensitivity. Speaking of Alda, there is an early episode of M*A*S*H with an old friend of Hawkeye who is writing a book about how, unlike in the movies, you never hear the bullet that kills you. Well, the friend ends up on Hawkeye's operating table having been shot, and having heard the bullet.

As I commented to a post on Derek's blog, Qui-Gon's death scene is one of the best, surpassed only by Sean Connery in The Untouchables. Heroic and sad, as all movie death scenes should be. Obi-Wan also gets high marks for heroism and self-sacrifice. He purposely lost the light saber deal because he knew Luke wouldn't leave without him.

Spock's death is not mentioned here, because we know what happens later. Darn those sequels!

Sunday, May 29, 2005

Spoilers, Sequels, and Sith V -- The Movie Franchise Strikes Back

My friend Derek Jensen has a review of the new Star Wars movie. His review is more positive than mine.

I must say that I have the opposite opinion on the question of Anakin's light saber. When Obi-Wan picked it up at the end, it seemed a little bit too convenient. That is the problem with prequels, generally. Plot developments are meant to conform to subsequent events in the storyline, not to develop characters or entertain the audience.

I would quit harping on all of this stuff if George Lucas would simply admit that Darth Vader being the father of Luke and Leia was not planned when the first movie was being made. Maybe Derek can take a day trip up to Skywalker Ranch and wring a confession out of the reclusive filmmaker.

Saturday, May 28, 2005

Yarons, Centons, and Microns

In light of my excessive posting about Star Wars, I should mention that Battlestar Galactica is currently the best science fiction franchise out there. The original ABC series was pretty bad, even by the standards of 1978. However, this "re-imagining" of the show is interesting and engrossing. Some of this is due to the fact that it is neither a prequel nor a sequel. No need to fit the storytelling into a preordained outcome. Main characters can die in this series, which ups the ante for the viewer.

Another nice thing about BSG is that there are allusions to current political issues, without the heavy hand. Everything from the "no-fly list" to the Clinton impeachment are hinted at, but not preached about.

The series is decidedly low tech, in part because the setup for the story is that the Cylons used a computer virus to destroy all of the advanced human defenses, including the other battlestars. Galactica was a relic destined for a museum before the Cylon attack.

Geeks beware, though. Science fiction franchises usually "jump the shark" when the audience is told to empathize with the enemy. I fear that there are some sensitive Cylons in our future.

Friday, May 27, 2005

Spoilers, Sequels, and Sith IV -- A New Hope

In an earlier post, I stated that fans only had comic books, toys, and an awful Christmas special to tide us over between Star Wars and The Empire Strikes Back. I totally forgot about Splinter of the Mind's Eye. This novel by science fiction writer Alan Dean Foster supplied some of the backstory for the whole Star Wars universe.

On the subject of my complaint about the lack of plot twists in the latest installment, I am reminded of a neat one in the first movie. They let the Millenium Falcon escape from the Death Star. After disabling the tractor beam and fighting off the TIE fighters, it became clear that the Empire wanted Leia and company to lead them to the rebel base. Even with this knowledge, it was a race to see if the rebels could destroy the Death Star before it destroyed them. Nice touch.

Thursday, May 26, 2005

Hostile Act, Hostile Intent, Deadly Force

It seems the Washington Post is distorting the story of the civilian Cessna that strayed into restricted airspace above Washington, D.C. Powerline alerts us to this nugget buried in the follow-up story.

The [anonymous] officials said they were told that Rumsfeld gave authorization to shoot down the plane if military officials declared it a hostile threat. Because of such factors as the aircraft's slow, constant speed and course and the apparent disorientation of its pilots, that declaration was never reached, they said.

The story also says that military rules of engagement are "generally classified." This is because we don't want potential belligerents to know when troops will or will not fire. That makes planning attacks much easier.

I have no knowledge of the specific rules of engagement for defending the airspace above the Capitol. But I know that the Standing Rules of Engagement (SROE) for air, sea, and land recognize the inherent right of self-defense. And "self" defense also includes defense of others, namely fellow troops. Certainly the Commander-in-Chief would be covered under the defense of others. Self-defense means that troops may use deadly force in response to a hostile act (they are doing something to hurt or kill our troops) or hostile intent (they are about to do something to hurt or kill our troops). So it would not be necessary for Rumsfeld to issue an order to shoot down the planes if they became a "hostile threat," since that authority already exists in the absence of an order from anyone.

The anonymous sources may simply be referring to the rules of engagement for the airspace over D.C. And those rules of engagement may even have been signed by Rumsfeld. This is a far cry from Rummy ordering the plane shot down. There is either more to the story, or the Washington Post really goofed on this one. You decide.
Partisan, Political, and Pouting

Nick Coleman pouts in his most recent column that local bloggers, and not Coleman, were invited to the governor's mansion. It must really eat away at this son of a prominent Minnesota Democrat (who "knows stuff") that these whippersnappers are mingling in the house that is his birthright.

The column is Coleman's usual fare, including his old charge of unfair "partisanship." As I wrote when he was named Father Time 2004, Nick seems to think that a person's involvement with one conservative organization means that every other activity in that person's life is linked to that organization. If you attend a Republican precinct caucus, the theory goes, and then join the Subway frequent customer stamp club, the sandwich shop and all of its employees are now "partisan."

Governor Pawlenty's spokesman didn't help matters much by stating, "'Nonpartisan' means nonpolitical, and this was a nonpartisan event." Many things that are nonpartisan are nonetheless political. Rallying for childhood literacy is political, perhaps even ideological, but unless it is the "Republican Rally for Reading," it is nonpartisan. This is true whether you are talking about IRS Regulations for nonprofits, campaign finance reform, or other legal guidelines. I haven't read the rules for the governor's mansion, but I suspect that "nonpartisan" is not defined. If the word is defined, I doubt that it requires that equal numbers of liberal and conservative guests be invited. What would happen, say, if a liberal guest left early? Would you have to boot a conservative out the door to retain balance?

I suppose I am being too hard on Coleman. This is a guy who is unable to distinguish between the Park Police and the Minneapolis Police Department. How can I expect him to understand the difference between "partisan" and "ideological"?

Tuesday, May 24, 2005

First Class, Small Children, and Anyone Needing Extra Time

Things have been pretty good in the preboarding arena, lately. The abuse is worst on Southwest Airlines. There are no assigned seats, so it is a great big cattle call in general boarding. So there is an incentive to preboard. People who supposedly needed "a little extra time on the jetway" looked awfully agile when the call went out for preboarding.

Don't get me started on the overhead bins. Has anyone done a study of selfish behavior among airline passengers?

Monday, May 23, 2005

Spoilers, Sequels, and Sith III

Here are some specifics as to why the latest Star Wars film is bad.

No plot twists. Nada. Zip. Remember in the first film, when Luke almost purchased another droid? If that one hadn't conked out, R2-D2 would have had a harder time finding Obi-Wan Kenobi. How about a little fun with splitting up the twins? Maybe Luke was supposed to go to Alderaan, and Leia was destined for Tattooine. There could have been a nice little vignette on that whole topic, since the audience is expecting one thing. Just because the ending is preordained doesn't mean the script can't meander a little bit.

Is it really that easy to kill the Jedi Knights? Give me some treachery. Since we are dealing with clones, how about some parallels between how they kill the Jedi. The film could progressively cut from scene to scene, with the audience knowing the standard modus operandi of the clones. That would have been preferable to a handful of shot-in-the-back scenes.

Why do we have to explain differences in appearance? When Mark Hamill was in a car accident, they had to add a scene to The Empire Strikes Back where he gets clawed in the face. The fight between the emperor and Mace Windu is used to explain the wrinkled appearance of the emperor in the later films. Back to the Future (Doc Brown's futuristic botox treatment) and Star Trek (why the Klingons have bumpy foreheads) also felt the need to do this.

Sunday, May 22, 2005

Knowing, Voluntary, and Intelligent Screw-up?

The Minnesota Supreme Court has overturned the conviction of Myon Burrell. Burrell had been convicted in the 2003 murder of Tyesha Edwards, an 11 year-old caught in a gang crossfire while she was doing homework at her kitchen table.

The main issue in the Supreme Court's ruling was a request by the defendant, then 17 years old, to speak to his mother. A suspect in custody must make a knowing, intelligent, and voluntary waiver of his Miranda right to remain silent. Otherwise, the fruits of the custodial interrogation may not be used against the defendant. Even if a defendant waives his Miranda rights, he can later invoke them by unequivocally requesting a lawyer or asserting his Fifth Amendment right to remain silent. In this case, Burrell requested to speak to his mother. The defense argues that this was to receive his mother's counsel. The government argues that Burrell wanted to concoct an alibi with her. That Burrell was not yet an adult factors into the question of whether the Miranda waiver was knowing, intelligent, and voluntary.

Although the Court's ruling is vulnerable to criticism in this case, the conduct of the prosecution also raises some eyebrows. County Attorney Amy Klobuchar and the Minneapolis Police stated that they have begun an investigation of the case in preparation for the new trial. Klobuchar later tried to assure us that the case did not hinge on one single piece of evidence. How could the prosecutors have gotten themselves in such a pickle, given that confessions are often subject to challenge, particularly those given my minors?

As I said about the Michael Jackson case, I do not pretend that I could have done a better job. But as a taxpayer and a citizen of Hennepin County, I do deserve some answers.

The initial Star Tribune story on the Court's ruling mentions that fact that there will not be testimony from the intended target, rival gang member Timothy Oliver, who was killed in an unrelated incident in 2004. The story does not mention the plea bargain given to Burrell's co-defendant, Isaiah Tyson. On March 4, 2003, the Star Tribune reported on Tyson's plea deal:

Tyson's account of the incident is helpful because it is consistent with what authorities know about the killing, Klobuchar said. ``He did say it was Burrell who was doing the shooting,'' she said.

However, under the plea agreement, Tyson cannot be called to testify against Burrell and Williams, said Richard Trachy, Tyson's attorney.

On March 3, 2003, our friends at Powerline questioned why Tyson's plea deal did not include an agreement to testify. Why indeed? We deserve some answers.
Spoliers, Sequels, and Sith II



Marvel Comic Reprint from the 1970s

Read the comic book excerpt, above, and tell me again how the whole Darth-is-your-father-Leia-is-your-sister thing was planned from the beginning.

Me: SwanBlog has no weapons. We are peaceful.

Lucas: You may fire when ready.

Saturday, May 21, 2005

Spoilers, Sequels, and Sith

Stop reading if: a) you haven't seen Revenge of the Sith, and b) you care if I spoil the ending. But since it's a prequel, you kind of already know the ending.

Star Wars was a first for many things. It was the first true summer blockbuster. It was among the first believable depictions of space flight (Star Trek and 2001: A Space Odyssey were the others). It was one of the first films to exploit merchandising, following the lead of Planet of the Apes.

Planet of the Apes failed to leave the audience wanting more, with five movies, ubiquitous merchandising, a Saturday Morning cartoon, and a television show, all in less than a decade. For Halloween in second grade I dressed up as the Roddy MacDowell character (Cornelius? Galen? Caesar?). Carolyn, this girl in my class, dressed as a female chimp from the show, by coincidence. Yes, there was teasing. This was in addition to the lunch boxes, board games, and trading cards. The point is that no one could say that Planet of the Apes came to a premature end.

In a way, Star Wars was a way of tiding over the fans from a show that did have a premature end, namely Star Trek. It is important to note that this was around the time when Star Trek conventions began to build momentum. By 1977, audiences had seen actual space flight, courtesy of NASA, on their television screens. They were ready for a mature science fiction drama, and George Lucas delivered.

Following the turmoil of the late 1960s and early 1970s, including war, assassinations, scandals, and general questioning of authority, the standard good-versus-evil movie was not seen as marketable. With Star Wars, Lucas could present a western without stereotyping the Indians, as well as a shoot-em-up without guns. No one could accuse him of supporting "the man," since the strict, militaristic characters were the bad guys.

Star Wars fans were forced to wait three years for a sequel. There were only comic books, toys, and an awful Christmas special to tide us over. In that time, there was a lot of what we now call "fan fiction." Fans were allowed to use their imagination on what happened to the characters next. It was easy for a fourth grader to draw dogfights between x-wings and tie fighters in a spiral-bound composition notebook. At that age, there was nothing nerdy about liking the biggest movie in the history of the medium. I remember discussions in school about whether Darth Vader was killed in the first film. My friend Chris Huffman reminded us (remember that this is before cable and DVDs) that Vader's tie fighter went into a spin, but later corrected itself, after Han Solo shot at him.

Darth Vader was never referred to as the "Dark Lord of the Sith" in the first film. That was a line used in the marketing of the "action figures" (boys don't play with dolls), presumably at the direction of George Lucas. Also, the movie never explained how Darth Vader came to have all that hardware on him. One of the explanations floating around was that he fell into a volcano.

I finally was able to connect the dots during Revenge of the Sith when it became clear that the battle between Obi-Wan and Anakin would take place on a volcano planet. That was a nice touch to bring the two trilogies together. Sadly, this was the only clever idea in the film. Loose ends are tied up in the manner of a Murder, She Wrote episode before the last commercial break.

Weak, belated explanations in the film:

1. Yoda escaped almost certain death and went into exile, so neither the Emperor nor Darth Vader know that he is alive to complete Luke's training.

2. Yoda taught Obi-Wan how to be immortal, just like Qui-Gon was, which explains how Obi-Wan is able to talk to Luke even after he is struck down in a light saber fight.

3. Darth thinks that he killed Padme, meaning that he won't go looking for his child(ren).

4. C-3P0 has his memory wiped clean, which explains why he doesn't understand the mission in Episode IV. Such amnesia is not necessary for R2-D2 or Chewbacca, since neither of them speak English to the audience.

Unexplained:

1. The Senator from Alderaan (Jimmy Smits) narrowly escapes being killed by clones, but is unmolested before and after the Senate was in session, and after his return to his home world.

2. Yoda knows about Leia, but tells Obi-Wan in The Empire Strikes Back that Luke is "only hope" of the Jedi.

3. Darth Vader somehow finds out that Luke is his son after being lied to about Padme's death by the Emperor.

4. Darth Vader interrogates Leia in the first two films, but never notices that the force is strong in her.

5. The Death Star is being built in Episode III. Does it really take 20 years or so to complete?

Am I taking it too seriously? Of course. I would argue that there is no need to tie up loose ends. Just make a fun, entertaining film. But the cheesy attempt to mesh the two trilogies puts these inconsistencies front and center. Moreover, the whole concept of a prequel tends to mess up the plot of the original film.

Me: George Lucas, your sad devotion to that dying film franchise is...gasp...gasp....

Lucas: I find your lack of faith disturbing.

Friday, May 20, 2005

Transistor Radio, Walkman, and iPod.

OK. So I just won a new iPod in a charity raffle. It says that is for both PC and Mac. My concern is that my slow, spyware-addled Windows PC will somehow hurt the iPod. Will the music sound like a 45 RPM record album played at 33? Will Lawrence Welk secretly sneak onto my playlist? Slim Whitman?

On the subject of my computer, I have three different anti-spyware programs installed. Of course, that may be the reason why my computer is slow. Oh, how I yearn for the simpler days of two computers ago, my Radio Shack 4k TRS-80.

Finally, I hope I did the right thing in keeping the iPod. At another charity raffle, I heard that they were going to convince the winner of the grand prize, a car, to donate it back to the charity. Could the March of Dimes really use an iPod. Will that help prevent birth defects.

Sunday, May 15, 2005

Selective Standards, Solomon, and SALT III

One more twist to the saga on military recruitment in law schools. You will recall that the Society of American Law Teachers (SALT) and other plaintiffs have a case pending at the U.S. Supreme Court. The Solomon Amendment requires law schools that receive federal funds to treat military recruiters the same as other prospective employers. SALT says that this violates the law schools' free speech rights.

Along with SALT and other groups, the Association of American Law Schools (AALS) forces individual schools, as a condition of membership, to bar military recruiters. Those schools covered by the Solomon Amendment still must "ameliorate" the supposed effects of military recruitment, according to AALS. The amelioration can include refusing to eat lunch with JAG recruiters, or not giving them the best parking space. So much for freedom of expression among law schools and faculty! But that's not the only twist in this story.

Brian Nomi, my law school classmate and Army JAG Corps buddy, tried to engage in a little free speech of his own. In 1990, Brian formed a group called the Minnesota Free Speech Movement at the University of Minnesota. His group decided to invite a guest speaker to the law school. The topic of the speech? Opportunities in the Marine Corps for lawyers. The speaker? A Marine Corps recruiter.

Brian reports that the law school did not ban the speaker outright, but called the recruiter to "explain" the school's policy and suggest that his visit would not be a good idea. The recruiter ultimately did not speak.

Brian sued the University and the AALS, arguing that his First Amendment rights to receive information had been violated. According to the law student newspaper (9/1/02), a federal judge ruled that the University's practice of barring military recruiters -- whose regulations do not comply with the University's nondiscrimination policy -- satisfied the constitutional standards for restrictions on commercial speech. His appeal to the Eighth Circuit Court of Appeals was tossed out as moot in 1993, since Brian had already graduated.

To sum up, the position of SALT, et al, is thus: The choice to invite military recruiters to campus is a free speech issue. If so, how can AALS and other groups can force member schools to bar recruiters, consistent with this position? How can public universities can deny student groups the right to invite speakers who happen to be military recruiters? It seems that these actions undermine their argument that it is a violation of free speech to condition receipt of federal funds on equal treatment for military recruiters.

Saturday, May 14, 2005

Selective Standards, Solomon, and SALT II

I wrote yesterday about the Society of American Law Teachers (SALT) and their campaign against military recruitment at law schools. In today's installment, I question the maturity of the methods of these law professors.

I was a part-time recruiter for the Army JAG Corps in 1997 and 1998, while I was stationed at Fort Riley, Kansas. My schools were the nearby Washburn Law School and the University of Kansas. I was aware of the tension between the Solomon Amendment, on the one hand, and the pressure groups like SALT, on the other. Washburn allowed the JAG Corps to recruit at the undergradute career services office, but not within the law school. KU allowed us to recruit, but the usual practice of law professors eating lunch with interviewing employers was abandoned. I still got the free box lunch, but only the Assistant Dean would break bread with me. It was more amusing than anything. I did feel bad for the poor guy from a private law firm who happened to be interviewing on the same day as me. He missed out on lunch with some stuffy law professors...er...hm...maybe he lucked out.

Rather than just the quirky behavior of a few Kansans, this is official policy for law schools. Since the law requires law schools that receive federal funding to allow military recruitment, professional associations say that law schools must "ameliorate" the dreaded association with recruiters. In addition to avoiding lunches with recruiters, some suggest limiting the amount of coffee served, or even giving recruiters bad parking spots. A little petty, perhaps?

Friday, May 13, 2005

Selective Standards, Solomon, and SALT

The U.S. Supreme Court has granted certiorari to hear a case on the Solomon Amendment decided by the Third Circuit Court of Appeals. The Solomon Amendment requires law schools that receive federal money to provide military recruiters the same access to law students as other prospective employers. The Third Circuit held that such a requirement violated the First Amendment rights of the law schools themselves, relying in part on the Supreme Court's 2000 ruling that the Boy Scouts could not be required to accept homosexuals as part of the group's leadership.

One of the plaintiffs in the Solomon Amendment case is the Society of American Law Teachers (SALT). SALT was formed in 1973 because, among other reasons, the American Association of Law Schools was not liberal enough (!) for some law professors. In addition to publishing faculty salary comparisons, SALT is involved in the usual leftist struggles, from keeping the bar exam sufficiently easy to pass (thus being fair to minorities), to maintaining robust affirmative action programs. One of SALT's recent projects was a friend-of-the-court brief in the Boy Scout case. SALT argued that the New Jersey's anti-discrimination statute did not infringe on the First Amendment rights of the Boy Scouts. In the Solomon Amendment case, SALT relies on the Boy Scout ruling. And the group's reasoning, by implication, calls into question other government funding with strings attached, such as Title IX.

SALT's position is not completely inconsistent, as its brief seeks to distinguish the First Amendment expression of the law schools from that of the Boy Scouts. But the arguments in combination do lead one to scratch one's head. Consider these excerpts from the SALT Boy Scout brief:

The Boy Scouts are not like the Ku Klux Klan. They are not an organization whose central self-definition requires exclusion of openly gay youth and men....

In this regard, the Boy Scouts are usefully contrasted with the Ku Klux Klan. The latter group is expressly organized around an exclusionary principle of white supremacy. To require the Klan to admit blacks would substantially undermine the Klan's central expressive purpose. But to their credit, the Boy Scouts, a huge inclusive organization numbering millions of members, are not the Ku Klux Klan....

So the Boy Scouts are not like the KKK? Gee, thanks. But does this mean that law schools are like the KKK?

Thursday, May 12, 2005

Invitations, Honoraria, and Censorship

The Monticello, Minnesota school district is in hot water over a decision to cancel a speech by children's author Lisa Westberg Peters. Peters could have made her speech and retained her $1,000 to $1,500 honorarium if she had agreed not to discuss Our Family Tree, which is her evolution book for kids.

Is the money still available? I'm willing to give a speech and not talk about evolution. What time should I be there? But seriously, this case is different than the various controversies over evolution in the science curriculum. Peters' talk was supposed to help kids "learn how to write." One of the rationales for excluding competing ideas in the biology curriculum is that the religious-based explanations might be appropriate in a literature, philosophy, or comparative religion class, but not in a science class. The proposed speech was not part of the science curriculum and was to be presented by an outside speaker. A school district is opening up a can of worms if it decides to invite discussion of evolution outside the context of biology class.

Of course, the American Library Association is crying censorship. Here is what I wrote last year celebrating the ALA's Banned Books Week:

A close examination of what qualifies as "banned" or "challenged" reveals that the ALA does not want any interference with its choices for acquisitions or curriculum. To them, any complaint about accuracy or age-appropriateness is the equivalent of a book burning.

The Library of Congress is the most comprehensive collection of books that are published in the United States. Every other American library's collection will be a smaller subset of this. Each library must choose which volumes to acquire and shelve. When a librarian makes that choice, it is deemed to be based on quality or pedagogical criteria. When a taxpayer or parent questions that choice, it is deemed to be narrow-minded censorship.

The arrogance is compounded when discussing school curriculum. In choosing a certain book for a certain class in a certain grade, it is necessary to whittle down the millions of books in the Library of Congress to a mere handful. Then students must attend classes, under penalty of truancy, and read the assigned books. Is it wrong for parents and taxpayers in a free society to involve themselves in the choice of books? Should we limit the discussion to those people with degrees in teaching or library science?

Government employees who seek to squelch citizen dissent should be careful when they throw around terms like "censorship."

Wednesday, May 11, 2005

First Class, Coach, and Cheaters

As long as we are beefing up security at airports, how about going after people who board the plane before they are supposed to? When they are boarding rows 20 and higher, why are there people sitting in row 10? And they don't look like Elite Club members.

Who's with me on this?

Monday, May 09, 2005

Home, Abroad, and Resolve

SwanBlog posts every day in May!

Here is an oversimplification for you. Why have there been no suicide bombers in America since 9/11? Nevermind a massive attack, we haven't even had a car bomb. Have our intelligence and law enforcement abilities improved that much in four years? Are explosives hard to come by in our cities? Have we become even better at protecting public places than the Israelis?

The terrorists want us to disengage from the world. They are betting that enough attacks abroad will convince us to retreat to our borders. Generally speaking, attacks on American soil strengthen our resolve. We are not going to withdraw from the U.S.A. But they are betting that we will withdraw from the Middle East if they kill enough of us.

Are they correct?

Sunday, May 08, 2005

Goods, Teaching, and Learning

SwanBlog -- Updated every day in May!

I recently wrote about Governor Pawlenty's proposal to require all Minnesota schools to spend 65 percent of education operating dollars directly in the classroom. In addition to the predictable editorials in the Minneapolis and St. Paul newspapers, some guy named Ward Eames wrote a piece claiming that 62.1% actually is 95%.

. . .

In fact, the average Minnesota school district spends 95 percent of its expenditures on teaching and learning. I know this because about a year ago the Hopkins Legislative Action Committee Business Task Force (formed by parents) decided to translate school district financial data into an easy-to-understand report similar to that used in the private sector. Key to this translation is to re-order school district financial data based upon the private-sector definition of "Cost of Goods Sold" into a category called "Cost of Teaching and Learning."

Cost of Goods Sold (CGS) are the costs directly related to the purchase or production of whatever a company sells. Costs typically include not only direct labor and material costs but associated overhead costs such as plant operation and maintenance, plant management, employee benefits, delivery costs (transportation), insurance and supplies.

In the case of a school district the product is education. The Cost of Teaching and Learning includes all costs directly related to educating the student. This would incorporate not only classroom teachers, but also support staff such as paraprofessionals and secretaries, building principals, benefits, supplies, building operations (custodians and utilities) and building maintenance costs. It would also include curriculum development and staff development expenditures. Without these expenditures the educational process would not exist for the students. Just like in the private sector.

. . .

Eames' reasoning is faulty in many ways. First, public schools have a monopoly. In the private sector, the cost of goods sold is only part of the equation, with the profit margin determining the remaining portion of the purchase price. Then the market decides whether the product is worth buying. Spending on a government monopoly is simply not analogous to the Costs of Goods Sold for a private business.

Second, the accounting gimmick of "Cost of Teaching and Learning" makes no distinction between the Minnesota districts that spend 47% in the classroom and the ones that spend 70% in the classroom. Eames implicitly argues that the more spent on overhead, the better. Outcomes are not mentioned. If Hollywood took this approach, Kevin Costner's Waterworld would be as worthwhile of a project as Star Wars.

Third, Eames and the two newspaper editorials argue for more state money to schools. If you want to spend more on education, generally, you can do that under the 65% plan. But at least you know that the increased spending goes primarily to the classroom.

Finally, Eames rails against what he considers "simplistic solutions." Yet he is telling us not to worry, he's done the math, and almost all of the money is already being spent in the classroom already. If you believe that, I have some sand where you can comfortably bury your head.

Saturday, May 07, 2005

Sneddon, Sneddon, and Sneddon

Come back every day in May for a new SwanBlog post.

OK. The prosecution has had some setbacks in the Michael Jackson trial. Could I have done a better job? Probably not. But there are some baffling decisions made by the lawyers in this case. They can still score some big points with the remaining witnesses who concede they slept with Jacko, but say they were not molested.

It is said that a lawyer never wants to ask a witness a question to which the lawyer does not already know the answer. But in a criminal case with no depositions, sometimes it is necessary for the prosecution to ask open-ended questions. And often the lawyer doesn't care what the answer is. Here are my suggestions:

Have you ever showered at all while at Neverland? Did you shower for hygiene? Do they make you shower before going into the hot tub? Afterward to get rid of chlorine? If so where did you shower? When you slept in Michael's bed, did either you or he take a shower before bedtime or in the morning? Did you take turns using the shower? (If there are no separate showering facilities for someone who frequently has boys as guests, it is suspicious. If there are separate showering facilities, it makes boys being seen in Michael's bathroom suspicious.)

When you slept in Michael's bed, did you were the same clothes the next day? What did you wear in bed? What did he wear in bed? Did Michael wear the same clothes? Did he put on make up to your knowledge? Where did you change clothes? Did you ever change clothes in the same room? (It doesn't matter what the answer is, but it puts the focus on the whole creepy situation.)

You say that you think "something like that" would wake you up. What do you mean? Would oral contact wake you up? Would digital contact wake you up? Are you a light sleeper or a heavy sleeper, or do you even know? Were you ever under the influence of alcohol when you slept in Michael's bed? (Maybe he would have awakened, which is why he wasn't molested. Other boys were better targets. Or maybe he was and he really doesn't know it.)

Were there full-sized arcade games in Michael's room? How were you able to reach the controls of the games when you were seven years old? (If there was a stool or something, then why was it necessary to hold Macaulay Culkin to reach the controls? If there was not a stool, and he spends all this time with young boys, why not?)

You say you are being defamed by the prosecution in this case. So being molested is something a real victim would not want publicized, right? And the victim might even deny that the molestation happened, right?

What things did you watch on TV when you shared Michael Jackson's bed? Any premium cable channels? Any R-rated films? Anything that your parents would not approve of? Did you invite your parents to join you in watching the programs? Why not?

Friday, May 06, 2005

Pool, Shower, and Arcade

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.

In the post below, I described the odd reversal of roles in military courts-martial guilty pleas. The defense actually has to convince the judge of the accused's guilt.

From a distance, the Michael Jackson trial seems to have a little of that role reversal, too. Did Tom Sneddon and his team bother to interview the prosecution witnesses ahead of time?

Equally curious is the defense decision to call other alleged victims of Jacko to the stand. After the waters were muddied with all kinds of side issues on the credibility and motives of prosecution witnesses, the case is now focused on swimming and sleepovers with young boys. And these undisputed incidents can be explored without the distractions of the prosecution witness problems.

Some of the conduct at issue seems innocent for most of us. Many people have a television in the bedroom, and it makes sense that the bed is the only place to sit. You might need to lift a small child in order for them to use a full-sized arcade game. But this is a mansion we are talking about here. Michael Jackson doesn't skimp in any other aspect of his life. Who believes that he can't afford a family room with a couch? For someone who spends so much time with children, why wasn't there a platform (or even just a milk crate) for them to stand on when playing video games?

What would be innocent explanations for you and me does not wash for the Jackson defense. We will see if the prosecution can take advantage of these problems of the other side.

Thursday, May 05, 2005

England, Graner, and Military Justice


It seems a military judge has thrown out PFC Lynndie England’s guilty plea. This came after the defense called former Sgt. Charles Graner, who is serving a 10 year sentence for the same conduct at Abu Ghraib prison, as a sentencing witness. After Graner contradicted England’s statements on one of the conspiracy charges, the military judge had no choice but to enter a plea of not guilty for PFC England.

In a military court-martial, the judge must conduct a lengthy inquiry to see if a guilty plea is “provident.” Usually, the guilty plea is part of a plea bargain with the prosecution. The main selling points to the prosecution are typically the certainty of a conviction, a stipulation of fact that makes the crime sound as serious as possible, an agreement to forgo a panel (jury), and a limitation of the number of witnesses. Once the providence inquiry begins, it is to the advantage of both the prosecution and defense for the accused not to claim actual innocence. In order for the plea deal to be acceptable to the judge, the accused can not contradict the stipulation of fact or the elements of the crime. So both sides of the aisle are rooting for the plea to be provident. The military judge has to be so careful that it almost sounds like he/she is trying to talk the accused out of pleading guilty.

There are always surprises, including a few with my own criminal clients. But a little clarification and a timely recess from the providence inquiry are usually enough to sort things out. This is also true in non-military cases, as evidenced by the drama surrounding the on-again, off-again guilty plea of Minnesota attorney Win Borden.

After a court-martial guilty plea is deemed provident, the sentencing hearing begins. The plea deal is usually for a cap on the potential sentence, but the result of the sentencing hearing could actually be less than the cap. Often, the defense case is like an episode of This is Your Life, with live and written testimony from every friend, relative, preacher, or teacher with something nice to say about some aspect of the accused's life. The sentencing witnesses are not supposed to say anything that contradicts the admission of guilt, but if Mom says her son is a good boy who wouldn’t do something like this, it is typically not enough to bust providence.

Which is why the rationale for calling Charles Graner as a witness is so confusing. There is no shame in having providence problems, as all defense attorneys have faced this at one time or another. But Graner clearly has an axe to grind when offering evidence of extenuation about the crime. If he is only offering mitigation evidence to evoke sympathy for England, the purity of their story is somewhat clouded by the fact that he was a non-commissioned officer in England’s chain of command when they reputedly, um, became intimate. It is unclear whether Graner was granted immunity for his testimony, or if this was one last gift for his paramour.

Finally, to see just how careful the military justice system is about providence inquiries, check out this excerpt from the Military Judge’s Benchbook. It is merely a portion of a script that goes on for several pages:

MJ: ___________, have you had enough time and opportunity to discuss this case with your defense counsel?

ACC: (Responds.)

MJ: ___________, have you, in fact, consulted fully with your defense counsel and received the full benefit of (his) (her) (their) advice?

ACC: (Responds.)

MJ: Are you satisfied that your defense counsel’s advice is in your best interest?

ACC: (Responds.)

MJ: And are you satisfied with your defense counsel?

ACC: (Responds.)

MJ: Are you pleading guilty voluntarily and of your own free will?

ACC: (Responds.)

MJ: Has anyone made any threat or tried in any way to force you to plead guilty?

ACC: (Responds.)

MJ: Do you have any questions as to the meaning and effect of a plea of guilty?

ACC: (Responds.)

MJ: Do you fully understand the meaning and effect of your plea of guilty?

ACC: (Responds.)

MJ: Do you understand that even though you believe you are guilty, you have the legal and moral right to plead not guilty and to place upon the government the burden of proving your guilt beyond a reasonable doubt?

ACC: (Responds.)

MJ: Take a moment now and consult again with your defense counsel, then tell me whether you still want to plead guilty?

(Pause.) Do you still want to plead guilty?

ACC: (Responds.)

Wednesday, May 04, 2005

Minimum Wage, Paper Routes, and the Strib (Part II)

SwanBlog is posting every day in May!

The Star Tribune is giddy with the news that state legislators have agreed to an increase in the minimum wage. The Strib tells us that this is a "recognition that the lot of low-income Minnesotans should be improved."

What is interesting is that Minnesota's largest newspaper pays its delivery carriers less than the proposed minimum wage in some cases. Moreover, the kid on the bicycle has been replaced by adults with cars, some of whom use the paper route as their main source of income. C'mon Strib, join the party!

Tuesday, May 03, 2005

Manners, South Beach, and Lileks

Since I committed to posting every day in May, I should probably do some day-in-the-life writing, like James Lileks. I know, I know. I'm no James Lileks. But I do have a blog, and I do purchase products once in a while. So here goes.

I had been in minor crisis for the past few weeks, as Carbwells low carbohydrate cereal bars were taken off the market to re-brand them as South Beach bars. As time passed and other low carb products disappeared from store shelves, I panicked that they might not be coming back at all. Unlike other supermarket products, this is not something I can make at home from scratch. A low carb, high protein cereal bar that does not taste like a chemistry set is a rare find. What was I supposed to do?

Then on Saturday, I found the new South Beach bars had arrived, with a new chocolate flavor to boot. The shelves were fully stocked, except for one conspicuous hole. The shelf label identified the hole as the place where the peanut butter flavored bars had been. That was my favorite flavor! It seems that someone who suffered withdrawal symptoms like me decided to clear off the entire shelf to feed his habit.

I have been known to stock up on things, but discontinued product etiquette provides that you must leave a couple of packages on the shelf. After you wait a couple of days and the product is still there, then you can clean out the rest.

The nerve!

Monday, May 02, 2005

Geneva, Miranda, and Hysteria

Swanblog -- updated Every Day in May!

Sigh. It was good while it lasted. CBS News took a break last week from its constant search for negative stories about the War on Terrorism by debunking the claims of Italian journalist Giuliana Sgrena. But it was business as usual Sunday night when 60 Minutes aired a story on alleged prisoner abuses at Guantanamo Bay.

I have no knowledge of the truth of the detainee abuse allegations, but it does seem fishy that the report only interviewed one on-camera witness to the specific conduct at issue. And that witness just happens to have written a book that will be available this week.

Beyond the specific allegations, the CBS broadcast muddied some important waters in reference to the Geneva Convention. Consider this exchange:

However, when they got there, Saar and the rest of Guantanamo’s intelligence personnel were told that the captives were not prisoners of war, and therefore, were not protected by the Geneva Convention.

"Your training in intelligence had told you what about the Geneva Conventions?" asks Pelley.

"That they were never to be violated," says Saar. "As a matter of fact, the training for interrogators themselves, their entire coursework falls under the umbrella of you never violate the Geneva Conventions."

"If the rules of the Geneva Convention did not apply, what rules did apply?" asks Pelley.

"I don't think anybody knew that," says Saar.

To say that the Geneva Convention does not apply to unlawful combatants does not mean that they are to be treated inhumanely. Whether the Geneva Prisoner of War Convention applies, and if so, which provisions apply, is a complex legal question that has nothing to do with whether or not we treat the detainees humanely. For a lengthy discussion of POW status, read this article (full disclosure: I helped edit this article as an adjunct editor for Military Law Review).

I seriously doubt the interrogators at Gitmo read each detainee his Miranda rights. That is because Miranda only applies to custodial interrogations of criminal suspects. Miranda is not the sum total of restrictions on police conduct, any more than the Geneva Convention is the sum total of restrictions on military intelligence conduct. Status under the Geneva Convention is the beginning of the inquiry, not the final conclusion.

A responsible journalist would have asked some version of the following questions:

What is the status of the detainees, under the Law of War?

What actually happened to the detainees?

Is what happened to them prohibited under the applicable Law of War?

Either that, or Andy Rooney can ask probing questions about laundry detergent labels. Tick, tick, tick....

Sunday, May 01, 2005

Classrooms, Diversity, and 65%

This post is part of SwanBlog's "Every Day in May" campaign. Check each morning for a new post!

Governor Pawlenty is promoting a new "65 percent" plan that would require 65 percent of all education operating dollars to be spent directly in the classroom. By some state-wide estimates, this would mean an additional $92 million per year for classroom instruction without raising taxes. But with some districts already exceeding this figure and other districts falling as low as 47%, the result may be an additional $217 million per year spent in Minnesota classrooms.

So what's the catch? The dour state senator in my own district, Steve Kelley, disputes the figures. George Will reports that teachers' unions are against what would amount to either higher pay or more job openings for their members. Unnamed "critics" in the Star Tribune say that the 65% plan could result in cuts to transportation, teacher training, and (horrors) school nursing. In addition, I suspect that the cottage industry of diversity consultants in schools will take a hit. That alone makes the plan worthwhile.

Teachers' unions, critics, and Senator Steve Kelley (which should have been the title to this post) don't stand a chance against this common sense idea.