Is Cheney Mason for Real?

Although I recognize that some will assert that you can't argue with success, I commented on the defense in the Casey Anthony trial,

If Anthony's attorney believed his client to be innocent and yet deliberately promised to the jury that he would offer evidence he had no intention of introducing, victory or not, I wouldn't hire him to walk my dog.

A member of the defense team argues that she did in fact believe Anthony to be innocent, although he does not offer to clarify which of Anthony's many stories he believes.

Appearing on NBC’s “Today” show on Monday, the attorney told Savannah Guthrie, “I do believe her story. I believed it from the first time I met her which was several weeks before I was formally on the team.

He denies that the opening statement contained promises that the defense had no intention of fulfilling - their client surprised them by not testifying.

And in other unexpected turns, Casey had also decided at the last minute to not testify during the trial. Mason said that it wasn’t because she was afraid to take the stand, however. She had just chosen not to, and was the only person who would ever know why.

I would be more impressed if Mason had argued that the defense knew that Anthony was not going to testify, although again that would cast doubt on the promises made in the opening statement, given that there was no indication that they built their defense with the expectation that she would testify, given that between her demeanor and her inability to open her mouth without lying she would have almost certainly buried herself within minutes, and given that it doesn't speak highly of either their trial preparation or client control that this was a surprise. (Really, the defense wanted to put her on the stand to explain that she kept garbage in her trunk for so long that her car smelled like it had a rotting corpse in the trunk, coincidentally at the time her child was missing, and that she abandoned her car at an airport because it ran out of gas? No freakin' way did they believe she was going to testify.)

Though nobody coached her on her mannerisms before the court, Mason did say that he and his lawyers did try to keep her emotions down, which he explained was “pretty hard to do when family [testified] against her and people [were] calling for [her] blood like a lynch mob.”

Nobody talked to the client about how to comport herself during court? For a first degree murder trial with a possibility of the death penalty? Seriously? Also, given that Anthony's mother gave testimony that, in my opinion, wasn't even close to credible about searching for "chlorophyll" and accidentally coming up with "chloroform", it seems she was trying to help Anthony. Did her parents get a bit angry with her when she tried to blame her partying after the death of her daughter on her supposedly being molested by her father? Or that her defense accused both of them of being somehow involved in the cover-up of her child's death and disappearance? I expect so - but are we to believe that, also, was a surprise to the defense team?

I accept this:

Mason continued to defend his client and stated that though there was no question she told a lot of stories to a lot of people, it was from a protective mechanism and not out of guilt of murder.

Whatever happened to the child, and whatever her role in the death, I have never sensed that Anthony has suffered even a moment of guilt. You will note that every single one of her lies was directional - minimizing her role in the disappearance and death, explaining away her inconsistent behaviors, attempting to blame others for the child's death and the dumping of the body in the woods and, if that failed, attempting to play "I was molested" as a trump card. As for "Casey’s demeanor and expressions, which were cold one second and crying the next," I didn't follow the trial but what I saw suggested that she became very upset when she started to feel sorry for herself. If sociopathy can be described as a "protective mechanism", I'll concur with Mason that Casey Anthony appears to have a "protective mechanism" in spades.

Given that Mason is claiming to believe that his client was ready and able to testify, implicitly with satisfactory explanations for her countless lies, and that she's now protected from retrial, I wonder when we can expect all of that information in some form of public statement that will make us recognize that this was all one big misunderstanding. No, actually I don't.

Divorce... So Different Than it Used to Be

The Wall Street Journal ran an editorial about divorce that brought to mind, of all things, an Air Supply song.

Growing up, my brother and I were often left to our own devices, members of the giant flock of migrant latchkey kids in the 1970s and '80s. Our suburb was littered with sad-eyed, bruised nomads, who wandered back and forth between used-record shops to the sheds behind the train station where they got high and then trudged off, back and forth from their mothers' houses during the week to their fathers' apartments every other weekend....

"Whatever happens, we're never going to get divorced." Over the course of 16 years, I said that often to my husband, especially after our children were born.

Or, as Air Supply put it,

They lived in a world that was cold and uncaring,
They swore they would change it with loving and sharing.
They'll never live like their parents have done,
Their innocence shone like the sun....

WSJ:

After nine years, my husband and I had become wretched, passive-aggressive roommates. I had given up trying to do anything in the kitchen and had not washed a dish in a year. My husband had not been able to "find time" to read the book I had written. We rarely spoke, except about logistics. We hadn't slept in the same room for at least two years, a side effect of the nighttime musical bed routine that parents of so many young children play in semiconsciousness for years on end....

But then, one evening, I found myself where I vowed I'd never be: miserable, in tears, telling my husband that we were like siblings who couldn't stand each other rather than a couple, and listening as my husband said he felt as though we had never really been a couple and regretted that we hadn't split up a decade earlier.

Air Supply:

Who are these strangers who used to be lovers,
Now they've got nothing to say to each other.
Too far apart to discuss their mistakes,
They file for divorce and it breaks their American hearts....

WSJ:

That was four years ago. Even now, I still wonder every day if there was something that I—we—could have done differently. Like many of my cohort, the circumstances of my upbringing led me to believe that I had made exactly the right choices by doing everything differently from my parents.

Air Supply:

Now that it's over they'll each go on living,
Never forgetting but somehow forgiving.

WSJ:

We may not make it in marriage, but we still want to make it as parents. In the '70s, only nine states permitted joint custody. Today, every state has adopted it.... Joint custody also reduces family strife.... Many of us have ended up inflicting pain on our children, which we did everything to avoid.

But we have not had our parents' divorces either. We can only hope that in this, we have done it differently in the right way.

Air Supply:

They'll care for their children protect them with pride,
And that's how their dream will survive in American hearts....

Here's the thing: The WSJ is claiming that it's describing something new about divorce, relevant to Gen X (born 1965 - 1980). The Air Supply song was recorded in 1980, is about a couple who married in 1969 and is thus about their parents. It may feel like there's something new to the story, but the actual differences seem to be in the details. The song (still a bit maudlin) is the same.

Let me give you a tip if you find yourself sleeping in a different bed than your spouse for two years and struggling to think of anything you could do differently to salvage your relationship. If marriage counseling seems like too big a step, you could try sharing a bed. And don't blame your lack of intimacy on the kids - yes, they get in the way, but where there's a will....

Joe Lieberman, Independent Representative for Health Insurance Companies

In case you've forgotten who Joe Lieberman works for.

Unemployment as Something That Happens to Other People

Not only is unemployment disproportionately affecting people with lower levels of education, Economix reports that it is also impacting a smaller percentage of the population at large:

Given how high unemployment is, there are surprisingly few people who have experienced unemployment in the last couple of years. This is the flip side of the historically high average length of the unemployment: joblessness is concentrated among a subset of the population, rather than affecting a larger group of people for shorter periods of time.

One set of numbers from the Bureau of Labor Statistics makes the case. In 1982, the unemployment rate averaged between 9 and 10 percent — and fully 22 percent of the labor force experienced unemployment at some point during the year. In 2009 (the most recent year of data), the unemployment rate also averaged between 9 and 10 percent, but only (or maybe “only”) 16.4 percent of the labor force experienced unemployment at some point during the year.

I'm left wondering if one of the reasons that Congress and the White House seem relatively disinterested in attacking unemployment is the result of their polling - that, as people are more concerned about what's happening to themselves and their families, the most likely donors and voters aren't significantly deterred by unemployment statistics from either voting or from supporting the party of their historic choice - and perhaps those groups have priorities that are at odds with lowering unemployment.

The Republican priority, as usual, is to lower taxes for the wealthy. High unemployment statistics seem like a win-win for them, as the public appears to believe that cutting government spending will decrease unemployment and they can happily demagogue the issue while serving the wealthy. The Democrats are almost as beholden to wealthy interests, aren't going to win over the Tea Partiers who get ginned up by Republican rhetoric and, sad to say, have a working class base that comes in no small part from areas of the country that have been experiencing 9+% unemployment rates for well over two years, and appear to be taking the path of least resistance.

The Lousy Job Market, Present and Future

I continue to disagree, to an extent, with Paul Krugman's assertions about the job market. Although I think he's technically correct, he's addressing a different issue than the one that concerns me:

Unemployment soared during the financial crisis and its aftermath. So it seems bizarre to argue that the real problem lies with the workers — that the millions of Americans who were working four years ago but aren’t working now somehow lack the skills the economy needs.

Yet that’s what you hear from many pundits these days: high unemployment is “structural,” they say, and requires long-term solutions (which means, in practice, doing nothing).

Well, if there really was a mismatch between the workers we have and the workers we need, workers who do have the right skills, and are therefore able to find jobs, should be getting big wage increases. They aren’t. In fact, average wages actually fell last month.

If you are working from the perspective that "a job is a job" and that the unemployment rate will fall probably to historically normal levels when the economy rebounds, I agree. But my problem is that I don't think "a job is a job" - I do see a structural issue with the job market, in that the number of well-paying jobs for people with less than a college education is dropping, and will continue to drop. And I believe that people who do not have a college education or whose skills have fallen out-of-date, once unemployed, are with each passing year less and less likely to achieve a similar level of income when they again find work.

Take a look at how the recession has affected unemployment rates, broken down by level of education. To the extent that Krugman is correcting those who argue that we need to get used to a 9+% unemployment rate, I agree with him - we do not. But it seems like we're going to have to get used to a shrinking middle class.

Finger-Pointing Won't Change the Obesity Rate

ABC News hypes the "obesity epidemic", announcing "America Keeps Getting Fatter". But the story they're not sharing is that, as the developed world's diet becomes more "American", other nations are also becoming fatter. And once we reach a certain threshold of obesity, specific regions pretty much stop getting fatter. What we're really seeing is that, thanks to changes in diet and lifestyle, the baseline for how many people are obese or non-obese is shifting.

Should we be concerned that the waistline of the world keeps on expanding, and that things tend to settle with a bit more than a third of the adult population classified as obese? Yes, we should. There are health consequences to obesity, particularly if associated with low muscle mass and an inactive lifestyle, that are valid concerns both in terms of quality of life and cost to society. (For what it's worth, the same is true for people who are underweight, but we don't consider being "too thin" to be a sign of moral weakness.)

But here's the thing: When you see a trend that's not just nationwide, but is increasingly international in its nature, you gain next to nothing by focusing on individual lifestyle and choices. The fact is we live in a culture that is loaded (larded) with calorie-dense foods. The fact is that some of the most calorie-dense foods are among the cheapest. The fact is that it profits the food conglomerates that engineer and market those foods to convince us to eat more. The fact is that, even with information about calories and weight, most people will not make the long-term lifestyle changes necessary to lose a substantial amount of weight and maintain that loss. The fact is that the overwhelming majority of people who do lose a significant amount of weight ultimately regain it. The most likely means by which an obese person will lose a significant amount of weight and maintain the loss is surgical - bariatric surgery, banding and the like. The fact is that there is refined sugar in pretty much anything you buy at the grocery store that has even a small amount of processing, even if you are left scratching your head wondering, "Why does that have to be sweetened?"

At a certain level, yes, "Eat less and exercise more" works for everybody. But once you recognize that blaming and shaming are not effective (and can be counter-productive), education has little impact, and that most of those who attempt to lose weight will end up concluding that "that approach doesn't work for me" or "this is too hard." No, I'm not suggesting, "Throw up your hands and give up," but the type of changes that might work will take more than simply telling people that they need to lose weight or move around more than they do. We could take a look at how we, as a society, subsidize the means to be inactive and to eat a low-cost, calorie dense, high-fat diet. We could recognize that physical activity is good for kids and should be a routine part of the school day.

Why an Offer of Social Security Cuts May Benefit Obama - And the Democrats

Given the negative reaction I've seen to President Obama's apparent willingness to negotiate Social Security cuts as part of a debt ceiling deal, I think it's a good idea to remember a couple of things.

First, President Obama's incentives in this negotiation are not the same as those of the Democrats in Congress. Just as they refused to stand behind his agenda during his first year in office out of concern for the midterm elections, he now has his own reelection to worry about. The mainstream media and beltway pundits have made Social Security reform the hallmark of seriousness - so working out a deal will help establish Obama as "serious" about budget deficits and structural reform; rejecting a deal that offers Social Security cuts may earn the Republicans a larger dose of the treatment recently dished out by David Brooks.

Second, there could be a significant benefit to Obama - and to Congress - if he manages to work out a reform of Social Security. He doesn't have to offer much - and he can offer the cuts as part of a take-it-or-leave-it package. If the Republicans take the deal, he can announce that "Social Security is now in balance through [2075 or some other date well into the future]" and for the duration of his presidency both he and the Democrats in Congress can express that the reform is a done deal and further cuts are off the table. Better yet, by opposing the deal, House Democrats can blame any compromise on the Republican majority while still benefiting from the fact that reform can be declared a "done deal". And they can run campaign ads, "The Democrats proposed a deal that would preserve Social Security for the indefinite future, protecting your benefits while ensuring its financial stability. The Republicans rejected that proposal, insisting that retiree benefits be cut to the bone."

The Presumption of Innocence and American Values

If you've attended law school, "I'm a law professor" loses much of its impact as an appeal to authority, but sometimes you just have to wonder.... A law professor at Fordham University, Thane Rosenbaum, has posted an editorial at the Huffington Post that leaves me scratching my head. The gist of it appears to be that jury verdicts should always make sense to laypersons, even if they did not attend the trial, and that we could better achieve that by eliminating our adversarial system in favor of an inquisitorial trial system modeled after some unnamed country (or countries) in continental Europe. To Mr. Rosenbaum, it appears that the biggest flaw of our system is that we presume innocence, and that too many people he believes are guilty are acquitted.

Rosenbaum cites a whopping four examples of the justice system gone wrong, inevitably mentioning the O.J. Simpson case, but also mentioning the Michael Jackson trial and the more recent rape trial of two New York City police officers. Rosenbaum complains that "As civics lessons and as tutorials on the justice system", these cases "were devastating failures", but does he take the time to provide the much-needed civics lesson? To explain how those verdicts were possible within our criminal justice system? How a jury can be outraged by a defendant's conduct, see a lot of smoke, but still find that there's not enough evidence to declare that the defendant is guilty beyond a reasonable doubt? Nope. He seems to instead propose that we simply take a "Where there's smoke, there's fire" approach to criminal justice and if a verdict doesn't resonate as just with the public it can only mean that the justice system is flawed:

Many of these same confounded citizens also threw up their hands with the O.J. Simpson trial: "There was blood in the Bronco, for God's sake, and he was running away from the police!" And there were those who wondered how the plain facts of the Michael Jackson pedophilia case resulted in an acquittal: "He was sleeping in his bed with children that weren't his own!"

Let's step back and look at his examples. The O.J. Simpson case. Let's admit it, the forensic evidence was overwhelming. Even if you believe that officer Mark Furhman planted evidence at O.J.'s house, or that there was a conspiracy to convict within the LAPD, there should have been enough evidence to achieve a conviction. Does this mean that Rosenbaum is correct? That the only lesson that can be drawn from the O.J. case is that our system is hopelessly flawed in favor of the defendant? Hardly.

First, the case was anything but a typical homicide trial, as instead of having an indigent defendant trying to scrape together a defense, or (much less likely) a middle class defendant bankrupting himself trying to scrape together a defense, you had an incredibly wealthy defendant sparing no expense on lawyers and forensic experts.

Second, you had two prosecutors of average skill who were by all appearances used to the overwhelming advantage they had over defendants, and did (or could not) adjust their tactics in the face of a defense that was as well-funded as the prosecution. (Better funded? I don't think so. A prosecutor can call upon state crime labs, police departments, in-house investigators, support staff, advice and support from other prosecutors, and similar resources, and in a case like O.J.'s I would venture that the sky was the limit.)

Third, you had the presentation of the forensic evidence in a manner that was more confusing than edifying. Had the prosecution treated the evidence as routine, the jury might have understood it. Instead they presented a multi-day lecture on DNA, likely both confusing the jury and taking away from how incriminating the evidence was. Was race a factor? Some say so, but I think the leading issues were that the prosecutors simply didn't present their case well, and made a number of other errors (e.g., having O.J. try on the bloody glove without knowing in advance that it would fit) that opened up unnecessary opportunities for the defense.

The Michael Jackson case highlights the wrongheadedness of Rosenbaum's approach. Under Rosenbaum's insinuation, there is only one reason an adult male would share a bed with someone else's child (and it ain't good). So let's go with that. We have parents who (like everybody else in the nation) knew of the first set of accusations against Michael Jackson, sought out Michael Jackson, insinuated themselves and their child into his life, and knew their child was sharing Jackson's bed. Even without assuming that "there can only be one reason...", you have to ask yourself, "What were they thinking?" If you accept Rosenbaum's insinuation, does it not follow that they were thinking, "There could be big money in this for us, just like there was for the first accuser"? And they consulted the same lawyer who helped negotiate the huge settlement from the first case? Rosenbaum is truly at a loss as to how the family ended up with a credibility problem that undermined the prosecutor's case?

As he brings up the Jackson case and that of the two police detectives, perhaps Rosenbaum should be offering a civics lesson in the importance of witness credibility, and within that context also bringing up the DSK rape accusation, a case that is in many ways analogous to the accusations against Jackson. He may want to take a look at the Feministe blog post, "There Are No Perfect Accusers". Both the Jackson and DSK cases involve defendants with a history of being accused of similar sexual impropriety, defendants who claimed that people were trying to set them up (not just in the specific case, but in general), and whose defenses rest primarily upon the impression that the accuser is a grifter.

Only three weeks ago, Strauss-Kahn evoked such a possibility in an interview with French newspaper Libération when he said he thought he was under surveillance and named the three principal difficulties he foresaw if he was to stand for the presidential elections.

"Money, women and the fact I am Jewish." He added: "Yes, I like women ... so what?" He said he could see himself becoming the victim of a honey trap: "a woman raped in a car park and who's been promised 500,000 or a million euros to invent such a story ..."

If we apply Rosenbaum's, "If there's smoke, there's fire" test to that claim, would it not be reasonable to infer that DSK was worried not so much about being set up, but about proactively laying a defense against accusations that might flow from his actual past conduct? Wouldn't a man who was seriously concerned about being set up take much better precautions against such a set-up? When you have an accuser and a victim, both of whom have serious credibility issues, how do you determine which side is "glaringly right"? And given his believe in the importance of public perceptions of justice, shouldn't Rosenbaum be comparing and constrasting those in the media who argue that DSK's rather incredible account of the events in his hotel room is "glaringly right" with those who argue that the final version of events described by the alleged victim is "glaringly right"? Under Rosenbaum's standard, is justice even possible in such a case? Whatever the outcome, some number of people will be offended by the disposition and believe that it represents a travesty of justice.

What is Rosenbaum's explanation for the difference between what occasionally happens in court - a defendant everybody "knows" is guilty is acquitted - and the court of public opinion?

There is an altered reality inside courtrooms. Everyone is breathing a different kind of air. Insulated by all that marble and mahogany, the talking head noise of cable TV and the common sense word of mouth on the street are blocked out by a mute button. What makes complete sense outside of the courtroom has no bearing on the legalistic jury instructions, the narrowed presentation of evidence, the presumptions of innocence and the burdens of proof that guide criminal trials no matter how simple and plain the facts appear and how indisputable the outcome.

From outside the courtroom, the legal system often looks as if it has no grip on the truth, or even worse, any concern or respect for the truth. But, of course, legal trials are, in fact, less interested in what is true than what can be proven.

On the whole that's true, but note how Rosenbaum's language suggests that the courtroom is some sort of ivory tower, while people passively watching news coverage and forming opinions based upon meta-analysis somehow know the "real truth". Note the absence of any sense of history, or explanation of why we have constructed a justice system in which the prosecutor must prove a defendant guilty, why justice is served by rules of evidence and by allowing the defendant to confront witnesses and challenge the evidence, and in which, no matter how heated the public reaction, it is desirable that cooler heads decide the case in court. Instead, Rosenbaum complains that while "legal experts "have lectured us" on the difference between a "not guilty" verdict and a declaration of innocence, "most reasonable, sensible, decent people are still left morally outraged by this purportedly correct legal outcome, and they won't easily be persuaded to appreciate the difference -- nor should they." Note the implicit accusation: If you disagree with Rosenbaum, you probably aren't a "reasonable, sensible, decent" person.

I'm not certain if, when Rosenbaum argues, "nor should they", he is trying to suggest that people should not be "easily be persuaded to appreciate the difference" between a finding of "not guilty" and a proclamation of innocence, or if he is arguing that people simply should not accept such a distinction. If it were the former, rather than complaining about "legal experts" attempting to explain how the justice system works, he should be attempting to do a better job of educating his readers. It thus appears to be the latter. Rosenbaum appears to be arguing that we should do away with the presumption of innocence and the legal standard of "guilt beyond a reasonable doubt", and perhaps even require that criminal defendants prove their innocence. To Rosenbaum, there appears to be only one form of miscarriage of justice - the type that occurs when somebody is acquitted despite a public perception of guilt.

It bears noting that such travesties of justice happen less frequently in other western nations.

Again, this guy is a law professor? If we're talking about countries that follow the common law tradition, which roughly translates into the English speaking world, the criminal justice system is very similar to ours, save for a slightly expanded opportunity for appeals by a prosecutor, made possible by the absence of constitutional language analogous to our Fifth Amendment. At the same time those nations don't have the U.S. notion of dual sovereignty, such that a federal prosecution can sometimes follow a state court acquittal. Either way, in most cases the prosecutor only gets one bite at the apple.

Rosenbaum limits his wistfulness to inquisitorial systems from continental Europe, apparently recognizing that systems of the sort he admires have a rather dismal record of achieving justice in the rest of the world. If you're charged with a crime in China, Burma, Turkey, Saudi Arabia, or any number of other countries that purportedly follow an inquisitorial model, you're pretty much guaranteed that you will be convicted at the end of your trial's search for the "truth". How does Rosenbaum describe the inquisitorial model?

Instead of having both sides fight a zero sum game, the winner-take-all, scorch the earth contests that make American trials similar to its sporting spectacles, other countries place a higher value on having both the prosecution and the defense work to uncover the truth. After all, everyone in society benefits when the truth is known and injustice is not allowed to prevail.

Rosenbaum's first mistake is in his belief that the only people who benefit from the outcome of a trial are the litigants. Our system of justice was constructed upon the assumption that there is a benefit to society in ensuring that defendants receive a fair trial, and upon Lord Blackstone's formulation that it is "Better that ten guilty persons escape than that one innocent suffer". Otto von Bismarck is alleged to have taken the opposite view - that it's better for ten innocents to suffer than for one guilty man to go free. Perhaps Rosenbaum would attempt to distance himself from that philosophy in his endorsement of the European inquisitorial model, but it's fair to note that he failed to tell us what country he believes offers the best interpretation of that model.

Which country in Europe "gets it right", and how much more accurate in Rosenbaum's measure is their system of justice than that of the United States? Perhaps he is thinking of Italy? Probably not Bulgaria. Perhaps he's taken in by the manner in which France shields Roman Polanski from prosecution by the U.S., or how the Swiss justice system managed to deny his extradition to the U.S. in a manner that didn't create even a hint of controversy in the United States. Does Rosenbaum actually know anything about the legal systems in the nations of Europe and their imperfecitons?

A French appeals court today overturned the conviction of six people accused of participating in a pedophilia ring in northern France five years ago, unraveling one of the most mismanaged cases in French judicial history and leaving the nation asking how the court system could have gone so awry....

The case was marred by deep doubts from the beginning, said Yves Jannier, France's attorney general, speaking to the appeals court on Wednesday. He noted that the investigative report by police in July 2002 found "more doubts than certainties" in the accusations, but said, "no one had enough critical sense to stop the machine."

Sure, but how might the public have reacted had they believed that the magistrate was emphasizing the need for stronger evidence instead of seeking convictions? The French, after all, have concerns about their own system. But if you're not concerned about wrongful convictions, the influence of the wealthy and powerful on a system dependent on magistrates, or abuses that occur at the hands of the magistrates, an inquisitorial system may well seem quite appealing.

Rosenbaum concludes by strongly implying in the specific context of the Casey Anthony case, "the truth is known and injustice is not allowed to prevail". It's thus fair to ask, what is the truth in the Anthony case? Is Rosenberg claiming that he was able to sit back in his recliner, watch Nancy Grace rant and rave, and come to a precise conclusion as to when and how Caylee Anthony died? I do have sympathy for the idea that in an inquisitorial system in which the defendant's silence could be weighed against her, and in which the verdict were reached by a preponderance of the evidence, on the weight of the evidence and the massive weight of her lies Casey Anthony would likely have been convicted of some act in relation to her child's death, but the question would still remain open of exactly how the death occurred. Although Rosenberg seems to believe otherwise, absent a confession, the essential facts of Caylee's death are and will remain known only to her mother.

Perhaps the public would be satisfied with an inquisitorial splitting of the baby - "We don't know what happened, but we're going to infer from the mother's lies that she committed some act of abuse or neglect against her child and thus convict of second degree murder or manslaughter" - but such a verdict falls far short of an outcome in which "the truth is known". The distinction thus appears to be that when the truth cannot be determined, Rosenbaum would err on the side of convicting.

They Say It's Best to Keep Your Mouth Shut...

... And merely be thought a fool. But I guess there's too much money in playing the fool for a TV camera for Nancy Grace to keep her "insights" to herself.

Are there any Nancy Grace fans reading this? What do you see in her?

Can Prosecutors Appeal an Acquittal

I see that a great many people visiting this blog are wondering whether the prosecutor can appeal Casey Anthony's acquittal on murder and manslaughter charges. No, they cannot. The Fifth Amendment to the U.S. Constitution provides a defendant with a range of protections, including the right to remain silent and protection against being retried following acquittal - protection against "double jeopardy":

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

In rare cases, a defendant acquitted in state court might be subject to charges in federal court, typically on civil rights charges. That is most likely to happen when the defendant is a state actor, such as a police officer who has been acquitted in state court of a serious crime against a criminal suspect. I do not personally see a basis for bringing federal charges in this case, nor do I expect a federal prosecutor to be interested in attempting a new prosecution.

Casey Anthony Acquitted - Should it Be a Surprise?

I have not followed the Casey Anthony murder trial, although I suspect you would have to live in a hermitage to have avoided picking up some of the details. I read a summary of the case on CNN today, and... wow. It's easy to see why somebody would be surprised by the acquittal. But should you be shocked? Outraged?

E.D. Kain provides a perspective on the case, comparing the acquittal to various wrongful conviction cases. Wrongful conviction cases are not usually given much media attention for a number of reasons, not the least of which is the fact that the defendants are rarely either photogenic or "nice people". Chalk it up to human nature - it's easy to rationalize away that type of failure of the system with some combination of, "It couldn't happen to me," and "A guy like that deserved some time in prison, anyway." It's a rare wrongful conviction case that forces people to directly confront the fact that, yes, it can happen to you and nobody deserves prison time for a crime they did not commit - and it seems that people would rather have those cases be over in a blink, "Justice was finally served, on to the next story," as opposed to dwelling on their uncomfortable implications.

I mentioned recently that the Anthony case reminds me of a similar missing child case from the Detroit area - never prosecuted. If a body were found the prosecutor would likely face similar issues to the Anthony case - a skeleton, no clear evidence of cause of death, not much to point to except the mother's history of lies. You and I don't have to give the defendant either a presumption of innocence or the benefit of the Fifth Amendment: we can hold their silence against them. It's not unreasonable for us, looking at the same evidence as the jury, to conclude "It's pretty much inescapable that she did it," but the jury has a harder job - finding guilt beyond a reasonable doubt.

One of the difficult calls for the prosecutor in a case like this is how to charge the defendant: You believe it's a first degree murder case, but do you go for the maximum charge and potentially complicate your case or do you go for a lesser charge and ensure that the defendant will get off with a lesser conviction and penalty than you believe she deserves. The Anthony case specifically reminds me of a trial an appellate defender once described to me, reversed on appeal, in which a man was convicted of "negligent homicide" in the disappearance and presumed death of his girlfriend. The only fact that could be established was that he was the last person who could be confirmed to have seen his girlfriend alive. The prosecutor's closing argument admitted that nobody knew what happened, but the prosecutor argued that based upon what was known of the defendant and of similar cases it could be inferred that the victim died cruelly, that she suffered enormously, etc. The jury obviously inferred that the defendant killed her, but with absolutely no evidence of how they came back with a verdict that made no sense, and was not supported by even the prosecutor's argument, hence the reversal.

This case, similarly, reminds me of the first Blogjevich trial and how, following the presentation of a relatively complicated case, the jury hung on most major charges. The retrial presented a simpler, more streamlined case and resulted in conviction. There won't be a retrial in the Anthony case, but it could be that had the prosecutor settled for treating the case as a culpable death resulting from child abuse they could have presented a more direct, less fanciful case and by honing in on how the evidence could not be explained away by accident they might have achieved a conviction. But by making the case about a mother who intentionally killed a child in order to get "freedom", instead of a perhaps more plausible case of a mother who was using inappropriate, abusive means to keep her child quiet (duct tape over the mouth, "where can I get some chloroform"), they allowed the defense too much latitude to explain away the incriminating details or to emphasize how they did not fit with the prosecution's express theory.

I very much question the defense strategy of either promising to present evidence to the jury that they were unsure they would in fact be offering, or outright lying to the jury in order to get certain arguments before the jurors that they knew would not come into evidence. Many lawyers take the position that you should never promise to prove something to the jury unless you know you can deliver. It's such a role of the dice that it's difficult for me to conceive of a lawyer intentionally following this strategy unless he knew the defendant to be guilty. (Why is it, I rhetorically wonder, that lawyers are so rarely picked for juries.) If Anthony's attorney believed his client to be innocent and yet deliberately promised to the jury that he would offer evidence he had no intention of introducing, victory or not, I wouldn't hire him to walk my dog.

One of the most absurd defenses of Anthony's actions after her daughter's disappearance (which Anthony would have known was in fact her child's death) is offered by Dr. Keith Ablow, resident armchair analyst for Fox News.

Some emotionally vulnerable people can experience mania—the “high” phase of bipolar disorder, essentially the opposite of depression—in the setting of unthinkable trauma or loss.

Even if you despise Casey Anthony, you have to admit that the death of her daughter (if she did not kill her) would qualify as such a trauma or loss. Symptoms of mania could then ensue, including: overspending, hypersexual behavior, sleeplessness and a sense of euphoria (which would be seen in photographs as seeming joy).

No, seriously, the explanation offered by the defense for Anthony's living the high life was that she had supposedly been sexually abused as a child. I expect that Anthony was examined by any number of forensic psychologists, and that the defense (and prosecution) would have been presenting their testimony at the death penalty phase had Anthony been convicted of capital murder. Had there been anything to the notion that she snapped into a manic phase, we would have heard about it. Ablow states, "I’m not saying that anything really happened this way, but it could have. Really." Maybe it could have with somebody else; just not with Anthony.

Anthony can now safely tell the world what happened - she can't be retried on the homicide or child abuse charges. It is my expectation that she won't, for the same reason that she chose not to testify in her own defense: her story won't hold up to even casual cross-examination.

I have spoken with a number of people who followed the trial closely and not one has said that she would have brought back a verdict for first degree murder. The typically thought process is, "I think she did something that accidentally killed the child...." And without the jury's obligation to presume innocence, it's more than fair to infer from that feeling and from the evidence that Anthony did kill her child. I believe the evidence was ample to support the prosecutor's case, such that even had the jury returned a verdict of first degree murder the evidence would have been found sufficient on appeal. But that's different from stating that the jury should have convicted. They're supposed to give the defendant the benefit of the ambiguities in the evidence, even if those ambiguities exist only because of the defendant's silence.

It's unfortunate that this case is more likely to be perceived as a failure of trial by jury rather than a success, as once you get past any perception of "sleazy lawyers" or "unsympathetic defendants" the fact is that our system is designed to err in favor of acquittal. The jury is to find proof beyond a reasonable doubt, something that's hard to quantify but is often expressed in terms of, "It's better that ten guilty men should escape than that one innocent man be condemned." I know that I would be frustrated if asked to serve as a juror in a case in which the only thing keeping me from knowing what happened was the defendant's tapestry of lies, compounded by her subsequent exercise of her right to remain silent. I can't mind-read the jury, but I expect that if they were to give statements they would acknowledge that frustration, but attest that it was their job to put aside those feelings and focus on the evidence admitted at trial.

Update: Jeralyn Meritt at TalkLeft does a nice job explaining the wide range of meanings that can be derived from a "not guilty" verdict.

Criminal trials should not be equated with a search for the truth. They are merely a process for the testing of evidence: Can the state prove the charges against a defendant by proof beyond a reasonable doubt?

Tax Increases Are Like Diamonds

Paul Krugman expresses some amusement at David Brooks' professed consternation, noting that he was denounced as "unreliable and shrill" for saying, a decade ago, what Brooks now accepts to be the case.

A normal Republican Party would seize the opportunity to put a long-term limit on the growth of government. It would seize the opportunity to put the country on a sound fiscal footing. It would seize the opportunity to do these things without putting any real crimp in economic growth....

This, as I say, is the mother of all no-brainers.

But we can have no confidence that the Republicans will seize this opportunity. That’s because the Republican Party may no longer be a normal party. Over the past few years, it has been infected by a faction that is more of a psychological protest than a practical, governing alternative.

The members of this movement do not accept the logic of compromise, no matter how sweet the terms.

But there's more to this. Sure, there's the faction that Krugman identified, now so obvious that even Brooks has to acknowledge its dominance, that will actively harm the country in its quest for power, its mindless advancement of dogma, or some combination thereof. But on the tax issues, their number is enhanced by an additional faction of Republicans that recognizes the reality of these negotiations: You can't bind future Congresses, so if they cut a deal for budget cuts over ten years they are making a deal that binds no one. Not even themselves.

Tax increases, on the other hand, can be put into effect immediately. When they abrogate their long-term tax plan in a year or two, as they almost inevitably will do, they don't want to be in a position of having "raised taxes" (even if only on luxury corporate jets), and can't reasonably anticipate that they'll have the support to restore that type of tax break even if they walk back their spending cuts. Tax increases, like diamonds, are forever.¹

Trademark Brooks:

Over the past week, Democrats have stopped making concessions. They are coming to the conclusion that if the Republicans are fanatics then they better be fanatics, too.

Because, when negotiating with a fanatic, if you do anything short of giving the fanatic everything he demands you're also a fanatic. That's some logic....

If responsible Republicans don’t take control, independents will conclude that Republican fanaticism caused this default. They will conclude that Republicans are not fit to govern.

And they will be right.

As Brooks is implicitly admitting, they're right even if the "responsible Republicans" do take control of this issue.
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1. The ad campaign, "Diamonds are forever", is designed in no small part to suppress the second-hand market for diamond jewelry. It is possible to cut taxes or repeal a specific tax, just as it is possible to resell a diamond; but once enacted it's much more likely that a tax will go up as opposed to down.

Once Again, The Facts Have a Liberal Bias?

A review of the movie, Conviction, on Netflix:

Acting was good. Ugly cast. Story was tiring. Evil cops and DA's, innocent criminal killers. Typical liberal slant. Boring!!!

The film was... based on a true story in which the defendant ended up serving life in prison due to police and prosecutorial misconduct. (And as much as you could make a movie about, say, Roger Coleman, it wouldn't be very interesting.) I wonder what the author of the review would make of The Thin Blue Line.

Wasn't there once a day when you could interest conservatives in freeing the wrongfully convicted, or did Wm. F. Buckley, Jr.'s experience end that experiment.

Creative Quotation

Quite a few years ago, I had a relative who worked for a trade association of sorts for the manufacturing industry. She was a recent college graduate and was tasked with putting together their newsletter. Shortly before an edition went to press her boss asked her about an article, "This isn't punchy enough. We need a quote from Senator [Smith] that says the following...." The relative replied, "We don't have a quote from Senator [Smith] and won't have time to get one before the newsletter goes to the printer." The response? "Go ahead and add the quote. I'll clear it with the Senator tomorrow."

I guess that, as long as it was consistent with his political views and made him look intelligent, that senator didn't mind the taking of considerable latitude with what he did nor did not say. I have similarly never heard a politician complain about having the "er's" and "um's" excised from quotes or radio clips to make him sound like a better speaker, a sports figure complain that a rambling, adrenaline-fueled, semi-coherent post-game comment was edited into an insightful comment, or by any celebrity who turned down the opportunity to review an interview before publication to clear up any "misunderstandings" that may result from, dare I say, the accurate quotation of what they said.

In the U.K. right now, there's a bit of a tempest in a teapot over a columnist, Johann Hari, who has apparently built himself a considerable reputation as an interviewer. Some diligent souls, possibly offended by Hari's left-wing politics, took it upon themselves to research his columns and are now gloating that his interviews contain passages gleaned from prior interviews, biographies, and similar sources that quote his subjects. "Sloppy journalism", some scold. "A form of plagiarism." "He has built his reputation on being a savvy interviewer but the best stuff in his columns often comes from somebody else's work."

Fair enough, but...

He's apparently been engaging in this practice for many years, in a highly read U.K. newspaper. I have not yet seen it suggested that even one of his subjects complained about his practices. That is, the arrangement seems to have been mutually beneficial (it makes both interviewer and interviewee sound better than they did during the interview), accepted by the subjects as par for the course, or both. I also wonder to what extent Hari tried to get his subjects to repeat their most quotable language, only to have them sputter out something that sounded much better when they (or perhaps their ghostwriter) wrote it in their autobiography, or when a prior interviewer edited their words into a more coherent form - or made up a quote and got them to approve it after-the-fact.

Also, if you watch celebrities speak on their subjects of choice, you often hear them answer in the form of packaged sound bites. The more interviews you hear, the more you may come to realize that the person who sounded so brilliant in that first interview is working from a memorized set of answers and bon mots. Yes, certainly, some people are better at conducting interviews than others, but how often do you really learn something from an interview?

Is Hari's practice, or any of what I've described, good journalism? No, it falls short on a number of levels. But perhaps unusual only in that Hari made the mistake of not rewriting the material he clipped from other sources - had he revised the language such that the sources could not be identified, as his subjects seem to have had no interest in revealing his practices, it seems that nobody would be the wiser. That, perhaps, says less about the interviewer than it does about his subjects, and what they've come to expect when interviewed. ("Get interviewed by Hari - he'll make you sound smart; he won't embarrass you.")

You Know What We Need? A Bigger Trial Tax!

The "trial tax" is a term given by lawyers to the tendency of courts to impose higher sentences on defendants who are convicted after trial as compared to those who plead guilty. There are many rationalizations for the trial tax - the guy who pleads guilty shows remorse, the guy who presents a trumped up defense or gives false or misleading testimony is wasting the time and resources of the state, etc. But there is an inherent tension between a defendant's right to be presumed guilty and increasing the defendant's penalty if he makes the state prove its case. The worst aspect of the trial tax is not that a guilty defendant gets a longer sentence, but that an innocent defendant may be forced to choose between a light sentence or probation if he accepts a guilty plea, or going to prison if he's convicted.

Deborah Orr is outraged that some defendants not only present false defenses at trial, but can display the same type of sociopathy or sadism they demonstrate in their crimes as part of their defense. She's from England, so she's focusing on some of the outrageous accusations the murderer of a thirteen-year-old has directed at some of the witnesses, including the child's father. But the same thing happens here. Orr's solution seems to lie somewhere between imposing a severe trial tax and (although she claims otherwise) weakening the presumption of innocence:

I am not suggesting changes in the law, or for an eroding of the rights of defendants in court. I am suggesting a change of emphasis in sentencing, whereby defendants no longer have nothing to lose from telling lies on a slender punt and absolutely everything to gain if their lies succeed. Clarke's proposed reforms invoked the carrot. Their flaw was that even a person who had no chance of being found not guilty would be further rewarded for pleading guilty. He needs to take another look at his ideas, and invert them. He needs to invoke the stick. Plead not guilty, and risk exposure as a vexatious liar, if you dare. No parole, no privileges, no quarter, just a straight, cold, maximum sentence, if you really think that you want to mess everyone around.

But the thing is, most defendants are guilty and the entire concept of plea bargaining centers around a quid pro quo - the guilty defendant does benefit from pleading guilty. At risk of projecting the U.S. system onto Britain, I expect that the child murderer whose antics so offend Orr is in the same position as a child murderer in a typical U.S. court - he is looking at the same outcome whether he pleads guilty or not guilty, and thus has nothing to lose. Will you inspire him to act more ethically in his defense if you threaten him with serving "life plus ten years" in prison as opposed to simply "life"? Obviously not.

But you can rest assured that the prosecutor who is looking at a difficult case will be warning the defendant, "If you do not take this plea bargain, after you're convicted I will be asking the court to find that you lied, and to give you a sentence with 'No parole, no privileges, no quarter, just a straight, cold, maximum sentence'". Such an outcome would come pretty close to a "gimme", given that the defendant's conviction would inevitably mean that his defense was not believed.

Orr's column reflects a layperson's frustration with the rules of evidence, specifically hearsay rules, and a remarkable lack of insight into how those rules work. She describes how, many years ago, her four-year-old let a woman into their home and, when the woman was prosecuted for burglary, she was told that she could not repeat her child's statements to her on the basis that they were hearsay:

The burglar had knocked on our door, and been let in by my four-year-old son, while I was feeding and settling his three-month-old brother. I knew nothing of this until I found my son sitting on the front doorstep, with the door open. He told me that he had answered the door – which at that time had clear glass panels – to "the lady in the red coat". Where was this lady now? She had gone upstairs, "to see Dad"....

I was amazed when my burglar entered a "not guilty" plea. I was even more amazed when, a few minutes before the trial began, six months after the incident, the Crown Prosecution Service told me I could not mention anything my son had said because it was hearsay evidence. That ripped my truthful narrative to shreds. Thus restricted, I was just not able to credibly explain what had happened.

In simple terms, a hearsay statement is an out-of-court statement being offered as proof of the matter asserted. In our adversarial system each side is supposed to have the opportunity to challenge the other side's evidence and cross-examine witnesses, an ability that is lost if hearsay evidence is allowed without discrimination - but there are many exceptions and exclusions to the hearsay rule, such that hearsay statements often do end up introduced into evidence, and sometimes the statement will be admitted for reasons unrelated to its truth. I expect that most lawyers will infer that the defense brought a motion in limine asking that the child's statements be excluded as hearsay, anticipating that the child would not be presented as a witness, and that at the time the trial started the court had put limits on whether and when the hearsay statements could be introduced. Orr continues,

The defence line was that this woman had found my son in the street and had been searching for me in the house, to deliver him to safety. As a mother herself, she had been appalled to find him wandering in the road, in danger.

But her good deed had been totally misread, and had landed her in this amazingly terrible mess. Her brief went further in her summing up. Citing the James Bulger case, she contended that people such as the defendant were afraid to intervene and save children because people such as me distorted their kind motives so grossly. People such as me, she argued, were responsible for the "walk on by" society. People such as me, she spat out contemptuously, would rather see an innocent woman go to prison than admit that they only saw the bad in people.

The trial took five days, about 20 minutes of which were taken up by the jury's deliberations. Largely, I think, because I had strongly insisted on presenting the hearsay evidence, despite the consequences and against the advice of the CPS,¹ and the jury had believed me.

What nonsense. Had Orr presented testimony in violation of the court's ruling she would have been admonished by the court and, at a minimum, that portion of her testimony would have been stricken from the record with the jury admonished to give it no weight. What happened was either that under the court's pretrial ruling the defendant's use of this particular defense opened the door to the introduction of the child's statement, or that the prosecutor successfully convinced the court to reverse its prior ruling based upon the content of the defense case. This is not an instance of a witness bravely staring down the court and forcing inadmissible evidence into the record, resulting in the defendant's conviction; does Orr truly believe that's what happened?

Here's another little secret of the system: prosecution witnesses often lie in court, and rarely face a consequence for lying. Would Orr balance out her trial tax by imposing severe consequences on prosecutors and prosecution witnesses whose arguments and testimony are rejected by the jury, or are later proved to be reckless, deliberately misleading, or presented with full knowledge of their falsity? As she suggests for defendants, should willful falsity be effectively presumed by a jury's rejection of the prosecution's case?

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1. I suspect that advice was along the lines of, "If you introduce the child's statements the defense may try to call him as a witness." But ultimately that, also, wouldn't have been Orr's call.

All We Have to Do Is Change Their Minds....

I was listening to the radio yesterday and discovered, of all things, that the Israeli defense establishment employs taxi drivers:

Well, Neal, I by accident was in Israel on September 11. I was there covering the latest Israeli-Palestinian fighting. And I actually learned the most important lesson on the morning of September 12, that has really guided my thinking ever since.

That morning, I called friends of mine in the Israeli defense establishment and said you guys have dealt with suicide bombing a lot. I really want to know everything you've learned from that experience.

And they brought a group together, and we had a conversation very early on the morning of September 12, and what they said was - this is not verbatim, but the basic message was this. They said: Tom, we're really good. Our intel is really good. We can get Khalid(ph) before he blows up a pizza parlor. We can get, you know, Marwan(ph) before he blows up a disco. But you know what? Mohammed will get through.

Mohammed will get through unless the village says no. It takes a village. And that has guided my thinking ever since. Until and unless the Arab Muslim community fundamentally delegitimizes these kinds of attacks, they're not going to go away.

Okay, so the "group" assembled by Friedman's "friends ... in the Israeli defense establishment" probably wasn't comprised of taxi drivers but, as with Friedman's very long series of columns that relied upon statements attributed to taxi driver's as a source of common sense street wisdom, it's no surprise that the lesson Friedman claims to have gleaned from the group happens to be the exact argument Friedman was hoping to make. Although he dresses up his anecdote, it boils down to a truism: Intelligence is imperfect so the only way you can be sure that you'll stop terrorist acts is to convince all terrorists to refrain from committing such acts. Which is also to say, it's not gonna happen. With the best education, economic opportunity and individual freedom you'll still have people who are radicalized along the lines of Tim McVeigh, Baruch Goldstein and (with the complicating factor of mental illness) Ted Kaczynski. Those examples should highlight something else: It's not just that you can never completely educate or convince a population not to engage in terrorist acts, you should not pretend that terrorism is unique to a particular religion or culture.

If memory serves, Friedman absorbed that lesson and responded to the group with the suggestion, "Brilliant. So if you guys end your occupation of the West Bank and withdraw most of your settlements, end your collective punishments in Gaza, come to a fair solution on Jerusalem, and allow the Palestinian people a state and some semblance of human dignity, you will not only gain the international moral high ground but you'll take an important step toward educating the Muslim world that the west is fair, reasonable, and that there's far more to gain through peaceful economic development than through acts of terror." No, wait, my memory is a bit off. Having embraced the idea that the West needed to educate the Muslim world to delegitimize terrorist attacks, Friedman gave the following explanation of how that should be accomplished:

What they [the Muslim world] needed to see was American boys and girls going house to house, from Basra to Baghdad, um and basically saying, “Which part of this sentence don’t you understand?” You don’t think, you know we care about our open society, you think this bubble fantasy, we’re just gonna to let it grow? Well, Suck. On. This.

We are fortunate to have such wise men shaping our debate on Middle East policy.

Leadership vs. Leadership Styles

When I saw a Republican "analyst" on Real Time announce that President Obama is "not a leader", I couldn't help but roll my eyes. It seems like only yesterday that Republican "analysts" were lamenting that President Obama has pushed all sorts of reforms on the nation too quickly, and had transformed our nation into some form of Kenyan socialist dystopia. With the release of a new party memo, that all gets flushed down the memory hole.

Obama's style of leadership is a fair subject for comment and criticism. I think it is fair to say the following:

1. President Obama likes compromise solutions, and likes to achieve his compromise deals behind-the-scenes. That may not be an unreasonable approach to take in these hyperpartisan times, when even the most modest suggestion (e.g., eliminating a generous tax break for luxury corporate jets) results in a Republican "leader" and negotiator throwing a tantrum and storming away from the negotiating table. But it's a form of leadership that is largely invisible to the public and, when visible, is a bit unseemly - as if there's no firm line, and that there's nothing that cannot be negotiated away for the sake of the deal.

2. President Obama does not take strong stands in favor of policies that he does not believe will be passed by Congress. This is not unreasonable, given that the Democrats in Congress have repeatedly gone out of their way to hamstring the President's agenda or to extort ridiculous concessions to support him. Also, taking a strong public stance in favor of an agenda that you cannot pass can make you look weak and cripple your ability to advance other items on your agenda. What did Bush accomplish after leading his party to failure on Social Security privatization?

3. President Obama rarely uses his access to the media to attempt to shape the public debate, and when he does take a public stand it is usually very late in the game when he's simply trying to round up the last few votes. I understand the argument that the belief that even the President can reshape public opinion is an embrace of mythology, and I also understand how the modern media will often take a clear statement and use it (or allow partisan 'guests' to use it) to cloud the debate while "objectively" failing to state the facts, but I do think that the President could do a much better job explaining both his agenda and the necessity of some of the compromises he makes.

Despite the fumbles and compromises, I am having a difficult time thinking of a President who, in my lifetime, accomplished more in his first year than Obama. If we are to think of G.W. as a "leader", let's recall that he spent his first 100 days arguing that it was unfair to expect a President to accomplish anything in his first 100 days, and was doing little more than running his approval rating into the ground before he scored his "trifecta". How much credit should I give him for ramming through tax cuts for the rich via reconciliation? If you can't get sixty U.S. Senators to vote for tax cuts for the rich, you're probably doing something wrong.

As is his wont, David Brooks is advancing the Republican line in more measured tones. He initially suggests that it is a mistake for a President to "live up to th[e] grandiose image" defined by John F. Kennedy in an "Inaugural Address that did enormous damage to the country". Brooks lectures, that Kennedy's "speech gave a generation an unrealistic, immature vision of the power of the presidency." He then pays Obama a back-handed compliment, that he has "renounced that approach" and "Far from being a heroic quasi Napoleon who runs the country from the Oval Office, Obama has been a delegator and a convener". Putting in the hat of the rank amateur armchair psychoanalyst, Brooks potificates,

All his life, Obama has worked in nonhierarchical institutions — community groups, universities, legislatures — so maybe it is natural that he has a nonhierarchical style. He tends to see issues from several vantage points at once, so maybe it is natural that he favors a process that involves negotiating and fudging between different points of view.

Still, I would never have predicted he would be this sort of leader. I thought he would get into trouble via excessive self-confidence. Obama’s actual governing style emphasizes delegation and occasional passivity. Being led by Barack Obama is like being trumpeted into battle by Miles Davis. He makes you want to sit down and discern.

You might think that, in light of his comments about Kennedy and his scorn for Presidents who tend toward grandiosity, Brooks would see that as a good thing. But when it comes to this type of column, Brooks has never been one to strive for internal consistency. Brooks expresses,

But this is who Obama is, and he’s not going to change, no matter how many liberals plead for him to start acting like Howard Dean.

When the Democrats had the opportunity to pick a leader who acted like Howard Dean, and by that I mean the opportunity to nominate Howard Dean, they picked Al Gore. I'm not sure what Brooks would take as a repudiation of his notion that the Democratic Party is yearning for somebody who acts like Howard Dean, but you might think that would be sufficient.

Brooks echoes some familiar complaints about the President:

He has not educated the country about the debt challenge. He has not laid out a plan, aside from one vague, hyperpoliticized speech. He has ceded the initiative to the Republicans, who have dominated the debate by establishing facts on the ground.

Here I have some sympathy for those who argue that the President has little ability to shape the debate. Any number of prominent Republicans have made statements about the national debt and deficit that range from misleading to outright false. They have muddied up the debate on the debt ceiling, something that is already confusing to many Americans, such that almost two thirds of Americans believe that raising the debt ceiling involves new spending. And the media, including David Brooks, has been content to let that happen. What happens when the President attempts to push back? David Brooks takes time out from whining that the President has not been pushing back to whine that the President is "hyperpartisan". There are hyperpartisans in the picture and they, like Brooks, are intent upon finding fault with everything the President does, even when it's exactly what they've asked. Take it from Brooks:

If [Obama] can overcome his aloofness and work intimately with Republicans, he may be able to avert a catastrophe and establish a model for a more realistic, collegial presidency.

Which, as we've already discussed, involves working things out in back room deals, or perhaps on the golf course with John Boehner, which is what the President is already doing.

In pretty much the same category as Brooks, we have David Frum - the man who was crying bitter tears that Republican obstructionism over healthcare reform was the party's Waterloo, until Joe Lieberman saved the day for the Republicans by insisting that Medicare expansion be removed from the final bill. Back then, he was among those crying that the President was changing too much too quickly. Now? He wants to erase that history, and reinvent Obama as a wimp:

Yet Brooks has laid out the most useful and effective critique of Barack Obama for Republicans in 2012: The job has overwhelmed the man. He’s not an alien, he’s not a radical. He’s just not the person the country needs. He’s not tough enough, he’s not imaginative enough, and he’s not determined enough.

Frum argues with some validity that the President has not put enough weight behind some of his nominations, but his criticism reflects either a lack of knowledge of U.S. history and Senate rules, or a deliberate effort to mislead his readers into believing that the only thing that has changed since FDR threatened to stack the Supreme Court is the name of the man in the White House. Frum states, again with some validity,

With unemployment at 10% and interest rates at 1%, the president got persuaded that it was debt and interest that trumped growth and jobs as Public Issue #1.

I think the picture is more complicated than Frum suggests, in that although Obama clearly underestimated what it would take to bring about a strong economic recovery, assuming the federal government had the capacity to do so, he pushed through about as strong a stimulus bill as he could muster and assumed that we would have a V-shaped recovery. Yes, between the Blue Dog faction of his own party, Republican demagoguery, and a complacent media, we are dealing with a government that's intent on cutting spending when we arguably would fare much better with another enormous stimulus bill. But I'll note that, even in criticizing the President for not getting behind such a bill, Frum conspicuously avoids admitting that to be the policy he's endorsing. Well, sort-of endorsing, because I'm pretty sure that if the President were to do as Frum suggests, Frum would instead be criticizing the President for falling back on a failed idea.

Frum's historic revisionism continues,

Back in 2008, Obama made two big promises: a tax cut for everybody earning less than $250,000 and an Afghan surge. I think it’s safe to say that Obama believed in neither of them. I’d argue that neither was important to electing him. Both were adopted for defensive reasons, to shield himself from conservative critique. In the very different circumstances of 2009, both promises rapidly showed themselves to be counter-productive. The “tax cut” promise caused Obama to direct almost one-third of his big stimulus into an individual tax rebate that no economist would have regarded as effective, for reasons explained by Milton Friedman more than 40 years ago. The Afghan surge promise was regretted by Obama himself as soon as he came into office, and he spent 9 months looking for ways to evade it.

The evidence that President Obama didn't believe that a middle class tax cut would be a good idea is what, David? Nothing? And the evidence that President Obama didn't believe in a surge in Afghanistan is that it took nine months for him to implement the surge, he's stood squarely behind it for going on two years, and based upon similar principles of humanitarian intervention recently involved the U.S. in a similar venture in Libya? Who are you going to believe, David Frum or your lying eyes.

If we were to look for the truth, we might observe that the tax cut portion of the stimulus bill was included as part of an effort to gain Republican votes. In retrospect, that was a mistake, but at the time it didn't seem obvious that the Republican Party would work so overtly to harm the nation's recovery in order to advance themselves politically, or that such an approach would work. As the 2010 elections demonstrate, it did work, and the Republicans have, if anything, since doubled down on their tactics. It's "wimpy" for the President to propose that tax cuts could help an economic recovery, to express concern about the size of the deficit and national debt, and to engage in a surge and now a slow withdrawal from Afghanistan? Then few of the Republican contenders can be described as anything but uber-wimps.

The Media's Morbid Obsessions... and Race

I agree with Kiri Blakeley's criticism that the media forms a morbid obsession with certain murder cases and gives them far more coverage than they deserve, and that the Casey Anthony trial falls into that category. But of all the reasons not to pay attention to the trial, I find this one to be weak:

But, most of all, I just find it—put it politely— selective. Virtually every month in New York City a young child is murdered either by his or her mother or the mother’s boyfriend or the adult responsible for the child—and hardly any of them ever gets the kind of national round-the-clock media coverage that Caylee Anthony’s death is receiving.

Look, I'm not going to argue that the media will find newsworthy a story from a wealthy suburb that might pass with little or no mention in an impoverished neighborhood. And yes, that often (but not always) means that the media lavishes on crimes against white families while giving scant coverage to similar crimes against minority families. But, as the very high-profile coverage of the Menendez brothers' murder trial helps illustrate, the issue there is more complicated than just race. Crimes against high-income individuals in low-crime areas are less common, tend to get more aggressive police investigation, and tend to involve defendants who for one reason or another are better able to defend against the charges. (Even if the defendant is poor, their defense team is apt to receive more funding and more access to investigators and experts by virtue of the associated publicity.)

I once watched part of a trial in which a mother was convicted of starving her child - in that case not to death, but otherwise similar in many ways to the case of Marchella Brett-Pierce. The author complains, "Katie Couric did a small piece on it for CBS News, but there was no national outcry along the lines of what Caylee Anthony is getting". But in the case I saw, Katie Couric didn't show up. And I doubt that she would have showed up even had the child died, even though the child was white. Very few child abuse cases, even those involving horrific circumstances, get media attention, and that largely extends to cases that result in death.

What the Caylee Anthony case has that the cases Blakeley describes is that it started with a missing child and, although you have to stretch the presumption of innocence pretty close to the breaking point, something of a murder mystery. A similar case that received significant media attention was that of D'Wan Sims, who disappeared in 1994. His mother, Dwanna Harris, told the police that her child had disappeared from a Michigan shopping mall. There was a search, and a review of videotape from mall entrances, with the video showing no sign of either mother or child. The case again received attention in 1999 when a tip about when the police investigated a tip about where the child's body might be found, and again in 2003 when a DNA comparison was conducted to determine if an unidentified child's body, found in Georgia, might be D'wan. It was not.

The decision was made not to prosecute the mother for such charges as child neglect, or for what appear to be some pretty atrocious lies to the police, so as not to risk foreclosing a prosecution to the fullest extent of the law if the child's body is ever located. But I have little doubt that the media will be all over the case if the mother is eventually charged with the child's murder.

When Blakeley complains that murders that involve no missing child, and no ambiguity about who committed a homicide, receive less attention than those involving both of those factors, the proper response is, "No kidding." Whether or not the story deserves to be front and center on the national news, the fact is that stories about missing children, lying parents and mysterious deaths will inevitably capture the public's attention in a manner in which an open-and-shut homicide case will not.

Ignoring the Debt Ceiling

Economix asks, "Could Obama Just Ignore the Debt Ceiling?" I would answer "yes" and that, constitutionally, that he would be on a more solid constitutional basis than he is in ignoring (or, if Boehner's analysis still holds, technically complying with) the War Powers Resolution.

The Republicans want to play a dangerous game of chicken with the economy - I expect that there are a few at the margins who argue otherwise, but the consensus of economists on the issue is that a default triggered by the failure to raise the debt ceiling would result at best in severe harm to the economy and at worst in a return to worldwide recession. Republican demands are in part likely the same old game - get promises of future cuts that will never come to fruition in order to pound their chests at Tea Party rallies, even if they will later vote for budgets that don't include their own cuts. But, as Mitch McConnell has expressed, the larger goal appears to be to make President Obama a one-term President even if it means harming the economy and worsening the lot of working people.

Arguably President Obama has a greater duty to uphold the Fourteenth Amendment's mandate than he does to respect the debt ceiling - a limit that is being surpassed because the same Republicans who don't want to raise the limit previously approved spending in excess of that limit. If he does ignore it, I suppose some Republicans could attempt to sue him to force the treasury to default. But if I were the President I would be telling the Republicans who are endangering our nation's economic recovery and standing that I would be upholding the Constitution, as I am sworn to do, even if that means ignoring the debt ceiling. Then see who swerves off of the road.

Update: I think this article does a decent job of laying out the constitutional hurdles to ignoring the debt ceiling. Quoting Steve Bradbury:

I don't believe that the Executive Branch would be empowered by this provision in the Fourteenth Amendment to issue new debt in order to meet current interest payment obligations on previously issued debt, where the issuance of the new debt would cause the United States to exceed a statutory debt ceiling set by Congress, and I also don't think it would empower the Executive Branch to expend funds out of the Treasury on interest payments not covered by current appropriations of Congress.

I think the argument here is that the President is not unilaterally issuing new debt, but is executing a budget passed by Congress that compels borrowing above the existing debt ceiling. If it comes down to ignoring the debt ceiling I suspect the issue is non-justiciable, so if Congress doesn't like the President's saving the nation's economy from its irresponsible, childish actions, its remedy would appear to be impeachment.

Lawyer Shortages and Salaries

According to Economix, there are three regions of the nation that suffer from a shortage of lawyers:

As noted above, not every state is overproducing lawyers. Nebraska and Wisconsin actually have small deficits of lawyers. The place with the biggest shortage is the District of Columbia, which is projected to have 618 new jobs opening annually for lawyers for the next few years, but had only 273 bar-passers in 2009.

Given this shortage, it is perhaps unsurprising that the District of Columbia has the highest median wage for lawyers in the country: $70.96 an hour.

I suspect that by "$70.96 an hour" they mean that if you multiply $70.96 by 2,000 (a forty hour week with two weeks of vacation) you end up in the neighborhood of $140,000 per year. But... alas, lawyers in that pay range don't have the luxury of a forty hour week. I think an accurate figure is probably more along the lines of $40 per hour. (Or, if you were to compare the compensation to a job that pays overtime, perhaps a bit over $30.)

The Limits of Yelling "Hypocrite!"

One of the easiest accusations to throw at a political figure is that of hypocrisy, because... they so often are hypocritical. But our acceptance of hypocrisy in the context of politics also makes it easy to make unfair accusations of hypocrisy, for example, "Back in the 80's the liberals in Congress did this, now they say they oppose the same thing." Never mind that the term "liberal" is subjective, we're talking about two completely different groups of people, and even if the issue truly is the same it's possible for somebody over the space of thirty years to find cause to change his mind. Sometimes the accusations are absurd, such as "Ayn Rand collected Social Security even though she opposed it," or "President Obama wants to raise taxes on the rich even though he isn't voluntarily paying taxes beyond the present tax rate." Its not hypocrisy to advance change while following the present laws, or accepting the quid pro quo benefit of paying your Social Security taxes even if you believe its implementation was a mistake.

One of the forms of hypocrisy that a politician's political opponents tend to see as a particular point of vulnerability, or find particularly annoying, is when a candidate lives his life in a manner that seems partially, largely, or completely at odds with the political positions he holds (or, in some cases, pretends to hold). So when Newt Gingrich argues that gay marriage will harm the traditional institution of marriage, it's pointed out that he has a long personal history of infidelity and is presently in his third marriage. And when Al Gore argues that strong action is needed to limit the effects of climate change, it's pointed out that he lives an incredibly wasteful lifestyle.

These accusations are not entirely unfair. Gingrich has no explanation for how gay marriage will supposedly undermine traditional marriage, and it's reasonable to point out that he has no personal problem with weakening the institution of marriage or ignoring his vows to his spouse, and yet the institution of marriage survives. The wasteful, self-indulgent lifestyles of people like Thomas Friedman and Al Gore arguably represent the tragedy of the commons - it's true that individual action, even at the scale of an individual whose carbon footprint approaches that of a typical neighborhood or small town, is not going to have any measurable impact on climate change. But that doesn't make it any more pleasant to hear such a person lecture you, Friedman-style, that if only gas were more expensive and ordinary people (like you) could not afford to drive as much, we would all be better off. It may be true, but why is it that the proposed changes seem to affect only the lifestyles of others? It's also reasonable to point out that you can build yourself a lavish mansion and live in the highest of styles while taking steps to minimize your carbon footprint, perhaps you should do so before lecturing others about waste.

Walter Russell Mead has attempted to explain the differences between acceptable hypocrisy and unacceptable hypocrisy. First he distinguishes character flaws from hypocrisy:

Not all character flaws are inconsistent with positions of great dignity. General Grant’s fondness for whiskey did not make him unfit for command. Other statesmen have combined great public achievement with failure in their personal lives. Franklin Roosevelt was neither a good father nor a good husband; Edward VII was a better monarch than man.

Given that everybody has character flaws, it should go without saying that it's possible to be a great leader in one field while being deeply flawed in another. Shifting back to the topic of actual hypocrisy, Mead tells us,

A television preacher ... cannot indulge in drug fueled trysts with male prostitutes while preaching conservative Christian doctrine. The head of Mothers Against Drunk Driving cannot be convicted of driving while under the influence. The head of the IRS cannot be a tax cheat. The most visible leader of the world’s green movement cannot live a life of conspicuous consumption, spewing far more carbon into the atmosphere than almost all of those he castigates for their wasteful ways. Mr. Top Green can’t also be a carbon pig.

I should first point out, "Yes, they can." The television minister will do just fine until his actions become public. The head of MADD could come back with some appropriate mea culpas and perhaps even improve the message of her organization. (I know Mead has a specific case in mind, but he's arguing a general rule - one anecdote does not prove a rule.) And yes, though it's annoying, it is very possible for somebody to be the biggest "carbon pig" in the world and still argue forcefully and accurately about the need for collective action on climate change.

Mead carries on about how you can have any range of character flaws as an environmental activist (which, again, have nothing to do with hypocrisy), but that you can't have big houses, a personal jet, or even invest in firms that could turn a profit if their green energy technologies are adopted on a wide scale. Perhaps Mead is correct to a point, because obviously you will annoy somme listeners - even sympathetic listeners - by living a lifestyle that's so at odds with your message. And obviously people like Mead will come out of the woodwork with a tu quoque argument. And Mead's demands on Gore are plainly absurd:

Surely, skeptics reason, if the peril were as great as he says and he cares about it as much as he claims, Gore’s sense of civic duty would call him to set an example of conspicuous non-consumption. This general sleeps in a mansion, and lectures the soldiers because they want tents.

Bad example. Exactly when in history was it that generals didn't sleep in mansions while lecturing their troops to make do with far less? I don't recall G.W. pitching a pup tent in the Rose Garden, or even so much as ordering that the White House air conditioning be set to a higher temperature, when he ordered the invasion of Iraq or Afghanistan. A more apt expression might be that it's not possible to be rich and advocate for the poor - but that serves only to highlight how ridiculous Mead's argument is. If you're wealthy, have access to the media and have political influence, you can advocate very effectively for change. You won't have a bigger impact on the public debate by giving away your wealth and living in a homeless shelter.

Although the tu quoque argument is inherently about hypocrisy, Mead states that he doesn't believe Gore is a hypocrite:

I am not one of those who thinks him a hypocrite; I think rather that he shares an illusion common amongst the narcissistic glitterati of our time: that politically fashionable virtue cancels private vice. The drug addled Hollywood celeb whose personal life is a long record of broken promises and failed relationships and whose serial bouts with drug and alcohol abuse and revolving door rehab adventures are notorious can redeem all by “standing up” for some exotic, stylish cause. These moral poseurs and dilettantes of virtue are modern versions of those guilt-plagued medieval nobles who built churches and monasteries to ‘atone’ for their careers of bloodshed, oppression and scandal.

Mr. Gore is sincere, as the fur-fighting actresses are sincere, as so many ’causey’ plutocrats and moguls are sincere. It is perhaps also true that the fundraisers who absolve them of their guilt in exchange for the donations and the publicity are at least as sincere as the indulgence sellers in Martin Luther’s Germany.

I don’t judge, dear reader, and neither should you.

He doesn't judge, "dear reader" but my goodness does he patronize.

The average citizen is all too likely to conclude that if Mr. Gore can keep his lifestyle, the average American family can keep its SUV and incandescent bulbs. If Gore can take a charter flight, I don’t have to take the bus. If Gore can have many mansions, I can use the old fashioned kind of shower heads that actually clean and toilets that actually flush. Al Gore looks to the average American the way American greens look to poor people in the third world: hypocritically demanding that others accept permanently lower standards of living than those the activists propose for themselves.

In Mead's eyes the average citizen (that's you), it appears, is quite stupid. I suspect that many average people would find it annoying to be lectured by Gore that they should made lifestyle changes, when Gore himself has done so little to minimize his own sizable carbon footprint. But contrary to what Mead implies I also suspect that, if asked, the average voter would recognize the difference between an individual and a collective effect, and that it is physically impossible for the world to support close to seven billion people if the average person lived like Gore.

Is Mead attempting to argue to the contrary? That we can all live like Gore? That, on the whole, people in the developing world do not have to accept lower standards of living than are enjoyed in the developed world? (Is that even Gore's message - or is it more that if corrective action is not taken the situation in much of the developing world will grow worse?) If Mead accepts that the world's resources are limited and that it's impossible to lift the average lifestyle of every inhabitant of this planet to that of the American middle class, and if he truly believes that people in the developing world need somebody to tell them that fact, who is it that he believes would be an appropriate spokesperson? Bill Gates?

Does Mead imagine that it would be easier to hear the message from a wealthy, privileged westerner who makes no argument that he, or anybody he knows, should live a less profligate and wasteful lifestyle? Also, why does it matter how the average person in the developing world perceives Al Gore? Most don't even have the capacity to "unfriend" him on Facebook, let alone influence the policy of their governments. That may not be fair, but it's reality. (If it makes you feel better, even with our entrenched democracy and comparative wealth, the average American voter has only slightly more influence on government and policy.)

The short version of Mead's argument is that Al Gore shouldn't be taken seriously on environmental issues because he lives a lifestyle that is wasteful, and is too narcissistic to even see the conflict between what he says and what he does. What's missing? Any substantive argument. Any indication that Al Gore is wrong. That says to me that the problem is with Mead - as I stated up front, it's easy to accuse politicians of hypocrisy. But what matters is whether they're right or wrong. If Mead believes that Gore is wrong, he should make his case. If not, he should stop rambling about why Gore should not be taken seriously and start explaining why any inconsistency between Gore's lifestyle and his environmental advocacy is irrelevant - a distraction from the truth.