Thursday, February 4, 2016

Note To Democrats: Debate Policy, Not Character

Kumbaya my Lord, kumbaya
Kumbaya my Lord, kumbaya
Kumbaya my Lord, kumbaya
Oh Lord, kumbaya  
Someone's singing Lord, kumbaya
Someone's singing Lord, kumbaya
Someone's singing Lord, kumbaya
Oh Lord, kumbayah
In 1980, the first presidential election in which I was eligible to vote, I couldn't abide Jimmy Carter's conservatism and voted for third-party candidate John Anderson.  In 1984, I supported Jesse Jackson for president, but I had learned my lesson, and when he lost the nomination to the remarkably uninspiring Walter Mondale, I campaigned hard for Mondale.  True, Ronald Reagan handily won both these elections, but the take away for me was that at the end of the day, no matter how you feel about the Democratic nominee, a Republican president is going to be disastrous for the economy (unless you are a corporation), for the environment (unless you live in a self-sustained eco-system), for civil rights and human rights (unless you are a xenophobic, homophobic, right wing, religious bigot) and for national security (unless you are an arms manufacturer), and we need to do everything we can to ensure that there is a Democrat in the White House. That has never been more true than today.

The Democratic National Convention is being held in Philadelphia at the end of July.  At that time either Hillary Clinton or Bernie Sanders will become the Democratic nominee.  A week earlier, the Republicans will have nominated their own candidate -- someone who does not believe in climate change or campaign finance reform or a woman's right to choose or that Black Lives Matter or LGBT rights or humane immigration reform or gun control or foreign diplomacy or criminal justice reform or raising the minimum wage or regulating Wall Street or making college more affordable -- someone who does believe in torturing terrorism suspects and tax cuts for the wealthy and repealing Obamacare and cutting Social Security and gutting the Iran nuclear deal and deregulating industry and allowing unfettered campaign contributions.  In addition and not insignificantly, four of the nine justices on the Supreme Court are over the age of 75, giving the next president an opportunity to reshape the court for a generation.

In other words, the stakes for the future of this country -- and the world -- couldn't be higher. 

The great danger of this primary season is that unrestrained and unprincipled attacks by the Clinton and Sanders campaigns and their supporters directed against each other are sowing the seeds for deep anger and resentment that will tamp down voter enthusiasm and participation in the general election and undermine the united front critical to defeating whatever horrifying nightmare the Republicans put up. 
A vigorous debate between the two Democratic candidates about their policies and how to achieve them is welcome, indeed, it is essential. It is important to hash out the areas where the two disagree and the many others where there is common ground.  There is a necessary discussion to be had about whether a pragmatic, more incremental approach to pursuing policy goals would be more productive than staking out bold positions and negotiating from there.  And there are concerns worth raising about which candidate can best appeal to the core constituencies of the Democratic Party that are essential to defeating the Republicans.  But attacks on character, distorting an opponent's positions on issues (past and present) and using right wing tropes to undermine progressive proposals should be off limits.  Such tactics are counterproductive and will only provide fodder for the GOP machine down the road.

Hillary should not be implying that Bernie's call for a "political revolution" -- one that seeks to effect change through our democratic process -- is some kind of radical plot to overthrow the government.  And she should not, as she did in the last debate, raise questions about Bernie's integrity (seriously?) or, for example, mischaracterize his health care plan.  It is perfectly appropriate to argue that many of his proposals -- such as single payer health care and college free tuition -- are unrealistic given the state of the Congress, and that she has better, more practical policy ideas.  It is fine to ask what specific plans he has to get Big Money out of politics (particularly given his comment that "any Supreme Court nominee of mine will make overturning Citizens United one of their first decisions," which makes no sense).  It is even ok to make the argument that Bernie is not as electable as she is.  But, as Charles Pierce puts it:  "Bernie Sanders is running a campaign completely within what can reasonably be called the mainstream of his party and of our politics. Discreet red-baiting and disingenuous scaremongering helps nobody."

And Bernie's supporters need to tone down the vitriol and over-the-top personal attacks in which Hillary is tarred as a corrupt, morally bankrupt, untrustworthy Wall Street shill and unrepentant hawk. There are legitimate questions to raise about her Goldman Sachs speaking engagements -- what she spoke about and what impact her relationship with investment banks will have on her willingness to tighten and enforce regulations.  It is fair to draw a contrast between Bernie's grassroots fundraising and Hillary's reliance on Super PACs.  Certainly, she should be called to account for her actions as Secretary of State.  But, come on folks.  Sure she had a bad patch of supporting her husband's horribly misguided policies in the 1990s, and there is no excusing her Iraq War vote.  It is also probably true that she would not be touting her progressive credentials as fiercely if she weren't facing Bernie Sanders in the primaries.  But, at the same time, she does have long history of supporting core Democratic positions on reproductive rights, on childhood poverty, on health care, on gun control and a host of other issues.  As pointed out at FiveThirtyEight, she was one of the most liberal members of the Senate when she was there and has a history of espousing very liberal views.

So, come on all you Democrats out there -- progressive, moderates, independents -- and you disenchanted Republicans too -- join hands, and let's sing ...

Monday, February 1, 2016

If You Have Nothing Nice To Say . . .

I wrote this piece five years ago, after the New York Times reported that it had been five years since Justice Clarence Thomas uttered a word from bench during oral argument.  Today, the Times reminds us that the silent treatment has now reached ten years.

In a front page story in the New York Times, it was reported that Clarence Thomas has not spoken during a court argument in five years, an unprecedented silence from a Supreme Court justice.  The problem, however, isn't that Justice Thomas doesn't speak; it is to whom he speaks when he does.  As previously reported, Thomas (as well as Justices Alito and Scalia) have attended, headlined and spoken at political fund-raising events for right wing organizations, raising serious concerns about, at minimum, the appearance of impropriety.

Justice Thomas's ethics have come under further scrutiny lately.  Both he and Justice Scalia were featured guests at a retreat of wealthy Republicans and conservative leaders organized by Charles and David Koch, the brothers who finance right wing causes from the money they have made from their energy conglomerate.  One of the Koch brothers pet causes had long been ending financial regulations on elections.  Indeed, according to Common Cause, they funded many of the groups who filed amicus briefs in the Citizens United case.  What is so unseemly about the appearances of Thomas and Scalia at the Koch Industries-sponsored event is that it occurred while Citizens United was pending before the Court.  Furthermore, while a spokesperson for Thomas asserted that the Justice merely made a “brief drop-by” at the event, his financial disclosure forms revealed that he was reimbursed for an undisclosed amount for four days of “transportation, meals and accommodations” over the weekend of the retreat.  Hardly, a drop-by.

Then there are the myriad issues involving Thomas' wife.  An outspoken conservative in her own right, Ginni Thomas set up a political consulting business, Liberty Central, which, as the Times describes, touted her on the organization's website as an an advocate for “liberty-loving citizens” and promised to use her “experience and connections” to help clients raise money and increase their political impact.  What connections would that be?  In any event, Liberty Central benefited greatly from the Citizens United decision, with Ms. Thomas accepting "large, unidentified contributions" for the company.  Perhaps not coincidentally, Justice Thomas omitted his wife's employment on financial disclosure forms for the past six years.  He ultimately was forced to acknowledge this error, claiming it was due to "a misunderstanding of the filing instructions.”

Thomas's conduct would clearly seem to violate the Code of Conduct for U.S. Judges, but for the fact that the Justices have exempted themselves from the ethical rules governing other federal judges.  Nevertheless, his conduct should come under scrutiny.  Common Cause, accordingly, has written a well-documented letter to the Attorney General requesting an investigation to determine whether Justices Thomas and Scalia should have recused themselves from the Citizens United case.  It requests, in the event the Justice Department determines either Justice should have disqualified themselves, that the Solicitor General seek to have Citizens United decision vacated. 

As for cases yet to be decided by the Court, Ginni Thomas stepped down from her role at Liberty Central after a memo surfaced which called for the repeal of health care reform because of its unconstitutionality.  Given the increasing likelihood that the Court will take up a case involving the Affordable Care Act, 74 Democrats in the House of Representatives sent Thomas a letter requesting his recusal.  As the letter states:  "From what we have already seen, the line between your impartiality and you and your wife's financial stake in the overturn of healthcare reform is blurred."

I am glad that Justice Thomas doesn't ask questions during oral argument, and I wish Justice Scalia would ask far fewer.  It is better to have more time to address questions from the Justices who actually might be persuadable.  The problem is not what these extremely partisan Justices do when they are on the bench but what they do when they are off of it. 

Tuesday, January 19, 2016

On Loving Bernie But Not Feeling The Bern

The 2016 presidential campaign so far has been driven largely by fear.  The Republicans are cynically drawing on (and generating) the fear of terrorist attacks and the fear of a fading American dream for the white working class.  But what I fear far more than the overblown threat of ISIS to our country, far more than a purported America in economic decline -- and what I have to shamefully admit is driving my political choices -- is the nightmarish possibility that any of those ridiculous Republicans could be elected President. 

It has become something of a cliché to preface support for Hillary Clinton with a disclaimer about admiring Bernie Sanders while expressing wariness and weariness of the Clintons.  But I really do love Bernie Sanders and have loved him ever since 1981, when I was a senior at the University of Vermont and he was first elected mayor of Burlington.  I have been extolling Bernie Sanders as a consistent, tireless defender of social and economic justice on this blog since well before he became a presidential candidate.  (See, e.g., Vermont's Finest)  He is the real deal, a counterweight to so much that is wrong with our politics, and I have found myself in agreement with virtually all of his policy prescriptions for decades. 

And I don't love Hillary Clinton.  I probably don't have to repeat the litany of her flaws, but here are a few key ones:  As a senator she not only voted for one of the worst foreign policy decisions in our nation's history, she repeatedly went in front of the cameras to cheerlead in the run up to it.  Her coziness with Wall Street, and Goldman Sachs in particular, is deeply troubling and does not augur well for an aggressive approach to rein in the financial industry.  The incessant scandals -- self-inflicted and manufactured -- are exhausting.  Her husband is not the man I would choose to have the ear of the next president. And, most recently, her attacks on Bernie's positions, particularly on single payer health care, are offensive and disingenuous.

(Spoiler alert, here comes the "but")

But, particularly given the horrifying collection of Republicans who appear to exist in an alternate reality rooted in values from the '50s (1850s, that is), the critical issue for me is electability.  You thought George W. Bush was a disastrous president?  The current crop of GOP candidates all deny the existence of climate change, oppose abortion rights, LGBT rights, and gun control, reject any and all humane immigration reform, support gutting Wall Street oversight, and propose tax plans that would benefit the wealthy and greatly increase economic inequality.  They appear gleefully willing to torture terrorist suspects, and disdain diplomacy in favor of a hyper-aggressive and interventionist military.  Indeed, all of the GOP candidates' remarkably stupid, knee-jerk, and bellicose reactions to the release of U.S. sailors temporarily seized by Iran amply reveal their collective lack of qualifications to be commander-in-chief.  And, perhaps most importantly, with four Supreme Court justices over the age of 75, the dire consequences of having a Republican president could not be more stark -- it would solidify an extremist right wing majority on the Court for a generation.

And while it is hard to take Donald Trump seriously and we like to refer to the GOP candidates as a bunch of clowns, there is really nothing funny about them.  Trump and Cruz, in particular, have shown that they are capable of running formidable campaigns.  They have skillfully tapped into the dark side of the American psyche, brilliantly stoking anger and fear, racism and xenophobia that appeals to a shockingly wide swath of voters.  With the Republican Party becoming expert at suppressing the vote through so-called voter fraud initiatives; with the infinite amount of Supreme Court-sanctioned money available to blanket the country with dishonest ads; and with a compliant media wedded to false equivalence that renders it inherently incapable of calling out one side for its lies, fabrications and extremism without finding some nugget from the other side to balance the story, this is going to be a very tough election no matter what outrageously preposterous candidate the GOP puts out there.

Notwithstanding the enthusiastic crowds he is drawing and his rising poll numbers, particularly in Iowa and New Hampshire, I just can't believe that Bernie is more electable than Hillary.  Many others have noted that, like Howard Dean before him, Bernie's support stems largely from young, white, educated, mostly male, progressives, which is a critical demographic but only part of the electorate needed for the Democrats to win a national election.  Even if he wins the Iowa and New Hampshire primaries, states with populations uniquely favorable to him, serious questions remain whether Bernie can put together a broader coalition and draw to his campaign the remaining core constituencies of the Democratic Party -- African-Americans, Latinos, Asian-Americans, and older voters -- groups that Hillary has shown to be very capable of drawing.  (See, e.g., Ta-Nehisi Coates on Bernie's "class first" approach.)  Another question is whether Bernie can raise the gobs of money, create the nationwide political infrastructure and garner the support of the Democratic establishment that Hillary can -- and has.

Moreover, as tired as I am of the myriad of Hillary-gates, one thing we do know is that she is remarkably resilient and can not only withstand the relentless attacks on her character, her career and her marriage but can fight back effectively.  My great fear is that Bernie Sanders, a Democratic Socialist (not to mention a Jew) whose revolutionary aim is to shake up and take down the current economic and political structure is going to be red-baited and swift-boated in a way that will make the notorious attacks on Al Gore and John Kerry seem mild. 

And is it worth the risk?

Once elected, could Bernie Sanders really be an effective president?  Could he really make meaningful changes to what he believes is the single most important factor undermining democracy -- the influence of money in politics?

Particularly given the gerrymandered reality of the House of Representatives, with its entrenched Freedom Caucus, any Democratic president no matter how progressive is going to be hamstrung.  Given how a relatively moderate Democrat like President Obama struggled to get anything through the Congress, it is hard to imagine how Bernie could actually enact policies that are any more progressive than Hillary's.

As a prime example, as much as I support a single payer health care plan, it is simply not realistic to think that a President Sanders could make it so, given that Republicans are still trying to repeal the compromised health care system on which President Obama expended so much political capital.  Hillary's attacks on Bernie's health care plan are dishonest but the political reality is that the next president must build upon and improve Obamacare as Hillary proposes, rather than attempt to start from scratch, as Bernie's recently-released plan suggests. 

I fully agree with Bernie that we need a “political revolution” that takes back a failing system now controlled by Wall Street and billionaires.  But a revolution is not going to happen from the top down.  To really effect change requires grassroots organizing, non-violent direct action, and electing as many progressives as possible at the local, state and federal level.  We need to ensure a Democrat is elected president, ideally with a filibuster-proof majority in the Senate, and continue to fill the federal courts and particularly the Supreme Court with progressive-minded judges.

I am grateful that Bernie is running for president and challenging Hillary from the left.  He is playing a critical role in the primaries by articulating populist, progressive ideas and raising essential issues about the crooked nature of our politics that would otherwise not make it into the national discourse.  But the great irony is that Bernie Sanders could only be president -- and could only be a successful one -- if we already had in place a political system that was not corrupted by Big Money and Big Media -- a system for which he is so passionately fighting.  In the meantime, I'm afraid, its time to get ready for Hillary.

Monday, January 18, 2016

Proud To Be Maladjusted

Originally posted on January 17, 2011

Over the weekend, I grabbed from my bookshelf A Testament of Hope: The Essential Writings of Martin Luther King, Jr., and literally dusted it off.  I flipped through it looking for something profound with which to pay tribute to the day.  There was so much eloquence to choose from, so many familiar, but nevertheless timeless speeches and essays defending the morality of non-violence and demanding racial justice, social justice and human rights. As I leafed through the book, I kept returning -- as Dr. King did -- to the theme of embracing "maladjustment;" refusing to be comfortable in an unjust world and insisting on action to achieve a better one.

In the summer of 1957, King addressed students at UC Berkeley, where he spoke of being maladjusted:
Now we all should seek to live a well adjusted life in order to avoid neurotic and schizophrenic personalities.  But there are some things within our social order to which I am proud to be maladjusted and to which I call upon you to be maladjusted.  I never intend to adjust myself to segregation and discrimination.  I never intend to adjust myself to mob rule.  I never intend to adjust myself to the tragic effects of the methods of physical violence and to tragic militarism.  I call upon you to be maladjusted to such things. . . . God grant that we will be so maladjusted that we will be able to go out and change the world and our civilization.  And then we will be able to move from the bleak and desolate midnight of man's inhumanity to man to the bright and glittering daybreak of freedom and justice.
Dr. King reiterated this theme in 1958, in an article he wrote for a Christian publication.  The article criticizes churches for failing to be more vocal in denouncing racism.  He stated "it may well be that the greatest tragedy of this period of social transition is not the flaring noisiness of the so-called bad people, but the appalling silence of the so-called good people . . . .  What we need is a restless determination to make the ideal of brotherhood a reality in this nation and all over the world."  King then reprised the notion of being maladjusted, almost verbatim from the speech he gave in Berkeley.

And then, in 1961, Martin Luther King gave the commencement address at Lincoln University, in which he talked about "The American Dream," "a dream where men of all races, of all nationalities and of all creeds can live together as brothers."  (I'm sure he meant sisters too.)  King urged the students to "not be detached spectators, but involved participants, in this great drama that is taking place in our nation and around the world."  He concluded this remarkable speech with many of the same words on being maladjusted that he used earlier: 
Every academic discipline has its technical nomenclature, and modern psychology has a word that is used, probably more than any other.  It is the word maladjusted.  This word is the ringing cry of modern child psychology.  Certainly all of us want to live a well-adjusted life in order to avoid the neurotic personality.  But I say to you, there are certain things within our social order to which I am proud to be maladjusted.

If you will allow the preacher in me to come out now, let me say to you that I never did intend to adjust to the evils of segregation and discrimination.  I never did intend to adjust myself to religious bigotry.  I never did intend to adjust myself to economic conditions that will take necessities from the many to give luxuries to the few.  I never did intend to adjust myself to the madness of militarism, and the self-defeating effects of physical violence.  And I call upon all men of good will to be maladjusted because it may well be that the salvation of our world lies in the hands of the maladjusted.

So let us be maladjusted as the prophet Amos, who in the midst of the injustices of his day could cry out in words that echo across centuries, "Let justice run down like waters and righteousness like a might stream."  Let us be as maladjusted as Abraham Lincoln, who had the vision to see that this nation could not exist half slave and half free.  Let us be as maladjusted as Jesus of Nazareth, who could look into the eyes of the men and women of his generation and cry out, "Love your enemies.  Blequss them that curse you.  Pray for them that despitefully use you."

I believe that it is through such maladjustment that we will be able to emerge from the bleak and desolate midnight of man's inhumanity to man into the bright and glittering daybreak of freedom and justice.  That will be the day when all of God's children, black men and white men, Jews and Gentiles, Catholics and Protestants, will be able to join hands and sing in the words of the old Negro spiritual, "Free at last!  Free at last!  Thank God almighty, we are free at last."

Wednesday, January 6, 2016

Mike Piazza Is Finally A Hall Of Famer

The arc of the baseball universe is long, but it bends towards justice.  And so, Mike Piazza, a true superstar, was elected to the Baseball Hall of Fame today on his fourth attempt.  Piazza's failure to muster the requisite 75% of votes his first three years on the ballot was a true travesty, based on unsubstantiated rumors about steroid use stemming from nothing more than a case of back acne.  He now joins another superstar, Ken Griffey, Jr., as the class of 2016. 

After Tom Seaver, Mike Piazza was the greatest player the Mets ever had.  Before his Met days, he was already a 5-time All Star with the Dodgers.  He was traded by the Dodgers to the Marlins and played for them for about a week before the Mets got him in May of 1998.  It was one of the few times in Mets history that ownership did something that was both big and smart -- the kind of move to give a resurgent team a chance at winning it all.

It almost worked. 

The Mets in Piazza's first year missed the playoffs by one game (after losing the last 5 games of the season).  In 1999, they lost a brutal playoff to the Braves, when Kenny Rogers walked in the winning run.  And in 2000, they actually made it to the World Series but lost to the Yankees in 5 games. And, sadly, that was it.  In Piazza's final five seasons the team was mediocre at best finishing third twice, fourth once and fifth twice.

But the Mets' regression to the mean cannot be blamed on Piazza.  In his 8 years with the Mets, he was a remarkable presence in the middle of the lineup, hitting 220 home runs, knocking in 665 runs and batting .296.  And the stats can't possibly measure his star power -- the kind of electricity that he brought with him every time he stepped to the plate.  (So electric that Roger Clemens was compelled to heave a piece of a broken bat at him during the 2000 World Series.)  Piazza had a flair for the dramatic, and most notable was the inspirational game-winning home run he hit on 9/21/11, the first game after the 9/11 attacks.

Piazza's career offensive numbers are staggering.  He batted.300 in nine consecutive seasons (1991-2001) and leads all catchers in career home runs with 427.  He boasts a .308 career batting average, 1335 RBI, 2127  hits, 344 doubles and 1048 runs scored.  These would be remarkable numbers for any player but for a catcher who has to crouch behind the plate for nine innings, and get beat up and worn down by foul tips, hard slides and other aches and pains like no other position player, it is unfathomable.

Mike Piazza is surely the greatest hitting catcher ever.  Other than dermatological issues, the only other mark against him was his middling skill behind the plate.  Admittedly, it was sometimes painful to watch Piazza try to throw out runners or block balls in the dirt.  On the other hand, it has been said that he was an excellent handler of pitchers, a skill less observable by the causal fan. 

In a profile in the Wall Street Journal, Piazza was asked where he would rank himself on the list of all time great catchers, and he replied, "in the top five"
I'm a humble person, but I'd definitely put myself in the top five. I'd say Johnny [Bench] first for his charisma and talent—then I'd say Roy Campanella—he won three MVPs, after all. And Yogi Berra. If I put myself over Yogi, people would say, 'Who does he think he is, he put himself over Yogi?'
Great question, and I don't think Piazza's answer is too far off.  He may not be in the top five, but he is pretty close.

Piazza ignores a trio of legendary catchers from the 1920s and 1930s, Mickey Cochrane, Bill Dickey and Gabby Hartnett, as well as the two Pudges:  Carlton "Pudge" Fisk and Ivan "Pudge" Rodriguez.  Then there's Gary Carter, another Met, who I wrote about here.

With the exception of Rodriguez, who is not yet eligible, all these catchers are in the Hall of Fame, and Piazza fits quite comfortably within this group.  Bench, Berra, Cochrane are generally considered the top three.  Campanella is next.  The fifth slot has got to go to Rodriguez, who may rate even higher.  Then, probably, comes Piazza.  While he didn't have defensive skills anywhere close to Hartnett, Dickey, Carter or Fisk, Piazza's far superior hitting arguably more than compensates for his lesser fielding prowess. 

But wherever you put him on the top ten list, Mike Piazza is indisputably one of the greatest catchers of all time. 

Tuesday, January 5, 2016

Baseball Hall of Fame 2016 Ballot: Vote For Substance Over Substances

“Voting shall be based on the player's record, playing ability, integrity, sportsmanship, character, their contributions to the team on which the player played.” -- BWAA's Hall of Fame Rules
Racists and segregationists who conspired to keep African Americans out of baseball are in the Hall of Fame.  So are players who regularly used amphetamines to "enhance" their performance on the field and others who took illegal drugs off the field.  Cheaters are in the Hall, from spitballers to sign stealers.  The Hall includes adulterers, sexual assaulters, drunks and batterers.  But some of the greatest players of the past couple of decades, including some of the greatest in the game's history, are denied induction into the Baseball Hall of Fame because they allegedly used steroids, probably used steroids or simply looked like they used steroids.

This wholly arbitrary application of the so-called "integrity clause" argues for its elimination as a factor altogether.  This would help dampen the sanctimony of the current group of Hall of Fame voters and their misguided effort to prop up an idealized, idyllic view of the National Pastime that never was.  As S.F. sports columnist Ray Ratto put it:  The Hall of Fame is not a church; it is history, for good and for ill.

It is unquestionable that steroids were used by a large group of players --  hitters and pitchers -- from about 1995 until 2005, when the baseball establishment, under pressure, finally began to crack down on the use of performance enhancing drugs.  During this time, when offensive numbers (and players’ heads) were suspiciously inflated, the fans cheered and the owners gleefully looked the other way.  For better or worse, steroids were part of the game and unless we are going to disqualify everyone who played during these years, we simply have to accept it.  Moreover, with the exception of the few players who have admitted steroid use or where the evidence appears overwhelming, we have no way of knowing with any hope of accuracy who juiced and who didn’t.

Baseball writers who vote for Hall of Fame induction need to stop using their votes to impose their idiosyncratic view of morality on the game.  In the absence of any guidelines from the Hall on how to apply the integrity clause -- or a definitive ruling by the Hall itself with regard to certain players or practices (see, e.g., Pete Rose) -- voters should focus on the players' performances on the field.  Determining who deserves enshrinement is tricky enough without adding a whole other layer of subjectivity.

In my view, the best and most dominant players of every era should be enshrined in the Hall of Fame, and steroid use or other alleged character flaws should not be insurmountable barriers to entry.  Without Barry Bonds, Roger Clemens, and Mike Piazza -- who is apparently suspect based on little more than a case of back acne (I wrote about Piazza's snub last year) -- the Hall of Fame's avowed goals of "preserving history and honoring excellence" will be greatly diminished.  (As for other character issues, Curt Schilling should be judged on the merits of his playing career, not his distasteful political views that include bigoted remarks against Muslims.)

For what it's worth, my vote for the 2016 Hall of Fame class (without regard to real or imagined steroid use) would include Clemens, Bonds, Piazza and Jeff Bagwell.  It would, of course, include Ken Griffey, Jr., one of the greatest players of his generation, who is appearing on the ballot for the first time.  I would also vote for Tim Raines, the greatest leadoff hitter east of Rickey Henderson.  Another who, like Raines, has lingered too long on the ballot and deserves induction, in my view, is Alan Trammell, a shortstop whose career compares favorably to recent inductee Barry Larkin and future inductee Derek Jeter

There are strong statistical arguments for other eligible players, but the numbers don't tell the whole story in assessing the career of a baseball player (see Damn Statistics) and ultimately the Hall of Fame vote is a gut call.  And using my gut, I would not add anyone else to my imaginary ballot this year.  The closest calls are Edgar Martinez, Trevor Hoffman, Mike Mussina and Curt Schilling.  Martinez was without a doubt one of the best pure hitters of his day, but his achievements came from being almost purely a designated hitter, and I am not ready to get over my strong antipathy for the DH.  First-time candidate Hoffman was a dominant closer who, after Mariano Rivera, has the most career saves -- a statistic, however, that I believe is way overvalued.  (See Save It)   Schilling and Mussina were both excellent pitchers with stellar careers for whom a reasonable case for the Hall could be made; just not by me. 

Friday, December 18, 2015

The Arbitrary Execution of Tom Thompson

I knew if I wanted to see Tom one last time I had to leave for the prison soon. It was already late in the afternoon and at 6:00 pm, he would be taken from the visiting area to the death watch cell for his last meal. There he would remain until 25 minutes before midnight when he would be led to the execution chamber next door. There wasn’t anything left for me to do anyway, so I left my San Francisco office and drove over the Golden Gate Bridge to San Quentin State Prison.

The parking lot to the East Gate of the prison is just a few yards from the San Francisco Bay. Even after countless visits the contrast between the sweeping vista of the coastline and the grim reality inside the prison’s peach colored concrete walls is striking. I passed through security and walked slowly down the long path leading to the Main Visiting Room. I was let in through the two sets of heavy doors, and saw Tom, surrounded by family and close friends, presiding over a gathering that could only be described as surreal. Tom had been on death row for fourteen years, and the prison guards who knew him well seemed as traumatized as everyone else. They were overly solicitous, awkward, almost apologetic. Instead of the usual vending machine fare there was a platter of cold cuts for sandwiches and sodas on a long table. Although in a matter of hours he was going to be strapped to a gurney and lethally injected with poison, it was Tom who was trying to keep things light, with the corny jokes and over-the-top impersonations – Steve Martin as the “Wild and Crazy Guy” and Mike Myers as Austin Powers – with which I had become all too familiar.

Behind his silliness, Tom was thoroughly depleted from being the center of a spectacle that surrounded him as the fifth man about to be executed in California since the death penalty was re-instituted in 1977. A physically healthy 43 year old was going through the process of dying, and it was disorienting and  unbearably stressful. He had been enduring emotionally-charged visits from his friends and loved ones, for whom he felt the need to constantly perform. He met often with me and other members of the legal team to approve a list of execution witnesses (he was entitled to five) and to be kept abreast of last minute developments – of which there were few. He had been under 24 hour surveillance from guards for the past five days, making sleep impossible. In accordance with prison rules, he had been stripped of his “non-legal property.” He had no reading or writing material. He was denied his art supplies, which he had used for surprisingly impressive paintings over the years, including a portrait of Billy Idol he had given me a few months earlier.

We had been preparing for this moment for far too long, having gone through a similar process one year earlier when, despite a stay of execution, prison personnel proceeded methodically with its execution protocol until, with six hours to spare, they were finally assured that the Supreme Court would not disturb the stay. There was not much left to say. Tom, although hampered by waist chains, enveloped me as best he could in a big bear hug, and thanked me for all I had done. He told me that I should feel proud about putting up such a good and righteous fight. I replied that it had been an honor to have worked with him. I exchanged tearful goodbyes with his sister and mother. I walked out of the prison and returned to my office where I continued to file court papers with little chance of success and railed to reporters about injustice. All to no avail. Six minutes after midnight on July 14, 1998, Tom Thompson was dead.

*          *          *          *

Tom Thompson had no criminal record or history of violence when he was tried for the murder of Ginger Fleischli in 1984.  He was found guilty of murder and sentenced to death based largely on the false testimony of jailhouse snitches and the failure of his trial lawyer to challenge the bogus evidence of rape invented by the prosecutor.  (The rape special-circumstance provided the basis for the death penalty.)

An explosive scandal involving the Orange County D.A.'s office has only recently shed light on the extent of the unethical behavior routinely engaged in by its prosecutors to secure death sentences.  And Michael Jacobs -- the prosecutor in Tom's case -- has been revealed to be one of the more notorious.  Jacobs was fired in 2001 for insubordination and dishonesty.  The litany of his misconduct over several cases includes presenting false testimony, using unreliable informants, and hiding exculpatory evidence -- all of which he did in Tom's case.  And there was more.  Jacobs used contradictory evidence and arguments in two separate trials to convict first Tom and then Tom's roommate, David Leitch -- the victim's former boyfriend and a man with a violent past -- on inconsistent theories.  The reliability of many other Orange County cases has been called into question since the D.A. scandal broke -- and one murder conviction based on the false testimony of one of the very same snitches who testified against Tom has been reversed.  Of course, this all comes too late for Tom.

There are approximately 750 men and women on death row in California.  Tom Thompson is one of 13 who have been executed since the death penalty was reinstated almost 40 years ago.  While others sentenced to death around the same time languished on death row (several of whom continue to languish), his case jumped to the head of the class for no discernible reason.  And then a series of safeguards designed to ensure that the death penalty is fairly and reliably imposed -- state and federal appellate review and clemency -- completely and utterly failed. 

All death sentences in California are automatically reviewed by the California Supreme Court.  Tom's appeal was heard in 1988, two years after three liberal justices were recalled by the voters and replaced by an ultra-conservative governor with ultra-conservative justices.  The Court was thereby transformed almost overnight from one that was appropriately open to reversing cases based on meritorious claims to one that essentially rubber-stamped death penalty cases by finding virtually every error alleged in virtually every case to be harmless.  Accordingly, Tom's conviction and sentence were affirmed.

The case then moved to federal court, where in 1995, Tom's death sentence and rape-related charges were reversed based on a finding of ineffective assistance of trial counsel for counsel's inexcusable failure to adequately rebut the snitch testimony and other evidence that purported to establish rape.  The state appealed this decision to the U.S. Court of Appeals for the Ninth Circuit. 

It is not much of an exaggeration to say that the composition of the randomly drawn three-judge panel in the federal appellate courts is the most important factor in determining the life and death of a condemned inmate.  If at least two of the judges on the panel are essentially liberal, the death penalty will likely be reversed; if they are conservative it usually will be upheld. It is simply luck of the draw and, unfortunately, Tom got a very, very bad draw.  Despite what at the time was a majority of liberal judges on the Ninth Circuit, all three judges on Tom’s panel were extremely conservative Reagan appointees.  It was therefore not surprising -- but wholly arbitrary -- when the panel reversed the district court's ruling in 1996.

To mitigate such arbitrariness is another important safeguard -- en banc review, in which an 11-judge Ninth Circuit panel has the option to review a 3-judge panel's ruling.  Court papers were filed requesting rehearing en banc, which can only be granted after one of the active judges who sits on the Ninth Circuit calls for a vote and a majority of those judges then vote in favor of rehearing. Given the number of liberal judges on the Ninth Circuit at that time it would be unusual for there not to at least be one judge calling for a vote in a death penalty case.  However, on March 6, 1997, an order issued stating that the request for en banc review was denied because not one judge asked for a vote to rehear the case. After the U.S. Supreme Court denied review, an execution date was set for August 5, 1997. 

In the months that followed, evidence surfaced that corroborated Tom's long-standing version of events -- that he and the victim had consensual sex on the night of her death.  This included a statement from Tom's roommate, David Leitch, that was never turned over to the defense.  Such evidence completely undermined the prosecutor's rape-murder theory and called into question the credibility and integrity of the prosecutor's entire case.   Unfortunately, presenting this new evidence was severely hampered by a federal law that had just been enacted in the wake of the Oklahoma City bombing.  The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") was designed to thwart "frivolous appeals" but it cast far too wide a net and created virtually insurmountable hurdles to presenting new claims in federal court.  Another problem was that the federal judge who had originally granted relief had passed away and the case was assigned to a far more conservative judge who was completely unreceptive to this new evidence and rejected the claim. 

Another purported safeguard is clemency, a process in which the governor is empowered to act when the judicial system breaks down.  No California governor since Ronald Reagan, however, has seen fit to grant clemency in a capital case, and in Tom's case, Governor Pete Wilson proved no exception. Despite powerful and emotional pleas from family and loved ones, the lack of any prior criminal history, testimonials from prison guards about Tom's exemplary conduct at San Quentin, and serious doubts raised regarding the fairness of the trial and the subsequent judicial proceedings, Wilson denied clemency.  He ultimately based his decision on nothing more than a determination that Tom could not prove his innocence ("But at the end of it all, I am absolutely confident that he raped and murdered Ginger Fleischli").

On August 3, 1997, one night before Tom's execution was scheduled to take place, an 11-judge en banc panel of the Ninth Circuit issued a dramatic order.  The court explained that it was taking the highly unusual step of ruling after its earlier denial of review because of “exceptional circumstances” caused by a malfunction in the court’s review process -- a glitch in the court's communication system that resulted in the failure of any judge voting to review the case en banc the first time -- and because “we are convinced that the panel committed fundamental errors of law that would result in a manifest injustice.” The Ninth Circuit then vacated the three-judge panel opinion, and reversed the death sentence, holding that trial counsel's ineffectiveness was prejudicial and that the prosecutor’s use of fundamentally inconsistent theories at Tom and David’s separate trials was fundamentally unfair.

The state sought review in the U.S. Supreme Court, while the prison proceeded with its execution protocol.  With six hours to spare, the Supreme Court refused the state's invitation to summarily reverse the Ninth Circuit and allow the execution to go forward.  But it did agree to hear the state's appeal on December 9, 1997. 

The grand stairway of 53 steps, the massive Corinthian marble columns, the grandeur of the Great Hall, and all the pomp and circumstance attending the Supreme Court are surely designed to give lawyers a sense of awe and wonder as they go through the red-curtained entrance into the courtroom and sit just a few short feet from the nine justices.  One comes completely down to earth, however, as it becomes clear that at least a majority of those justices intend to make sure one’s client is executed. This seemed like a foregone conclusion in Tom’s case. When the high court decides to intervene in a Ninth Circuit case that has reversed a death sentence it is usually not to approve its ruling.  And thus, another safeguard proved ephemeral.  On April 29, 1998, by a bare 5-to-4 majority, the Court reversed the Ninth Circuit and ordered it to reinstate Tom's death sentence. Justice Kennedy (a former Ninth Circuit judge, himself) wrote the majority opinion, finding a “grave abuse of discretion” in the Ninth Circuit’s handling of  the case, and stressed the importance of “finality” of state judgments. Thus, even though Tom was not at fault, the Court rejected Tom’s claims on the technicality that the Ninth Circuit had waited too long to grant en banc review.  The Court never even addressed the validity of Tom’s substantive claims.  A new execution date was set for July 14, 1998.

The last hope was the separate appeal of the federal judge's rejection of the newly discovered evidence of innocence.  The case was heard by the same en banc panel that had granted relief earlier, but the court was no longer receptive.  It seemed chastened by the lashing it had received by the Supreme Court and shackled by the barriers to relief imposed by AEDPA.  At 11:00 p.m., on July 11, 1998, the court denied relief. Tom was executed two nights later.

*          *          *          *

Tom Thompson was represented by a trial lawyer who failed to take the steps required to afford minimally competent representation in a capital case. He was convicted and sentenced to death in a county where a cynical prosecutor could pick and choose among jail inmates who were willing and able to manufacture evidence to support the prosecution’s theory of the case. His death sentence was affirmed by a state court that at the time refused to meaningfully review death penalty cases. Relief in federal court was first denied because he unluckily drew a conservative panel and later because of legal technicalities that had nothing to do with the merits of his claims. Despite obtaining new evidence that suggested he was innocent, Tom was precluded from obtaining a new trial because of insurmountable legal procedures and the paramount importance of closure. 

Almost twenty years later, poor defense lawyers, unsavory prosecutors, disinterested courts and impenetrable procedural hurdles remain all too common elements in capital cases.  They are inherent aspects of an irreparably broken system.  Apart from the barbarity of the death penalty, the absence of meaningful safeguards to ensure that death sentences are not unreliably and arbitrarily imposed and carried out should be deeply disturbing to anyone who cares about fairness and justice. 

Join the effort to put a voter initiative on the 2016 ballot that would replace the death penalty with a sentence of life without the possibility of parole.  To find out more, to volunteer and/or to donate click on:  Justice That Works.

(Please read and share these other pieces on Tom Thompson -- My Opposite;  Final Hours -- and on California's Dysfunctional Death Penalty)

Thursday, December 10, 2015

Mets Need To Strike While The Stove Is Hot

I can still see Daniel Murphy reaching for his lip balm after another brutal error.  I still think about Lucas Duda's wild throw and Familia's quick pitch and the far-too-many weak at bats and missed opportunities that gave the Series to the Royals.  But the excruciating trauma of losing the World Series is gradually giving way to the hope that the Mets will make those pivotal trades and acquisitions to bolster the team and put them over the top in 2016. 

After all, as I wrote a month ago (has it only been a month?), it is all about creating a New Met Narrative:
For Met fans, there is always a lingering sense that disappointment is not far off -- that the Mets' penny-wise owners will not do what it takes to keep the team competitive and that something unexpected but nevertheless devastating will undermine the team's seemingly limitless future.  But, things feel different this time.  The Mets have a deep core of great young talent, savvy veterans, and apparently great chemistry.  They surely need to make a few changes and add some key new pieces this off season, but maybe, just maybe, this is the start of a new era.  Maybe it is time for a new narrative.  Not lovable losers or unlovable losers tempered by the occasional miracle, but a truly solid baseball team that doesn't have to rely on magic to win. 
As we gather around the hot stove enduring the cold months without baseball, however, I'm getting that old helpless feeling that Mets ownership is going to try to get away with doing as little as possible, once again pretending to be a small market team lacking the wherewithal to make a big market move.  Sure, they will tinker with a couple of middling deals to strengthen some of the team's more glaring weaknesses and add a little bit of depth.  But they will preemptively opt out of any major deals, insisting they have to keep payroll down. 

Or like the ill-fated deal for Michael Cuddyer last year, management will satisfy a bizarre urge to spend money on the wrong players.  This year's candidate:  Ben Zobrist.  For some reason the Mets were enamored of this aging utility man and were willing to give him a lucrative 4-year contract.  Luckily he signed elsewhere.  The Mets, to their credit, deftly pivoted and flipped Jonathan Niese, a perennially underachieving lefty pitcher, for Neil Walker, a very solid second baseman who will more than adequately compensate for the loss of the aforementioned Murphy (who with his lip balm and porous glove is thankfully moving on).  They also signed free agent Asdrubal Cabrera, a strong-hitting, good-enough fielding infielder who with Walker, give the Mets flexibility around the horn -- flexibility that is terribly important given the tenuous nature of David Wright's back and questions surrounding erstwhile folk hero Wilmer Flores and the not-quite-ready-for-prime-time Dilson Herrera.

I like these moves but they are not nearly enough.  The Mets still need a big bat for the middle of their lineup -- a bat they were woefully missing last year until they signed Yoenis Cespedes, who carried them to the playoffs. 

Cespedes, Justin Upton and Jason Heyward are the pricey free agents available this year, but the Mets don't seem to be in the running for any of them.  They are reportedly looking at cheaper solutions -- platoon players who can plug some holes as opposed to superstars who can change the entire dynamic.  And, again, it appears to be because they claim they don't have the money, not because they don't think any of these players would markedly strengthen the team.  This is bullshit.

As Michael Powell of the New York Times summarizes:
The Mets’ claim of sackcloth poverty seems worth interrogating. The Wilpons trusted their grifter friend Bernard L. Madoff, and so fell on hard times. And the debt service on their new stadium is pretty high. But as Howard Megdal of Capital New York has noted, somewhere between $45 million and $60 million rained down upon the Wilpons in this autumn’s baseball festivities.  Ratings and ad rates are up significantly on SNY, in which the Mets own a majority share. And as my colleague Richard Sandomir has noted, ticket sales are up.
Expectations are up too.  After years of mediocrity or worse, the Mets finally have the makings of a great team and nothing short of a World Series win is going to satisfy the fan base.  And that is how it should be.  As tough as it was to lose the World Series the way they did, it would be absolutely devastating if that turned out to be all there was -- if that was the pinnacle of this incarnation of the team.

But time is of the essence.  The key to the Mets' success is their incredible young pitching staff.  But Matt Harvey becomes a free agent in 2018, and the others soon thereafter.  And with arbitration years kicking in prior to free agency, the team will have to start paying a premium in order to keep the staff together, which ownership is not likely to do.  Not to mention the ugly possibility that one or more of them will suffer injury. 

The time to make a big move is now.  The time to spend money like the big market team they actually are is now.  If it is true that the team is really one slugging superstar away, they've got to make that happen -- even if it means offering too much money or too many years.  As Met fans know better than most, having a genuine chance to win a championship is precious and not something to be squandered. 

Wednesday, December 9, 2015

Uncle Sam Fights Back

During a Time Magazine photoshoot, a bald-eagle named Uncle Sam went after Donald Trump.  Did this hallowed symbol of freedom sense a threat to our country's principles?  Or was it just the hair?


Here's the full video:

Tuesday, December 8, 2015

It's Not Just Trump -- The Entire GOP Field Is Comprised Of Xenophobic Bigots

Has Donald Trump finally gone too far in calling for a “total and complete shutdown of Muslims entering the United States?”  When the likes of Dick Cheney -- the torture-loving, fear-mongering war criminal himself -- thinks this is an inappropriate response to domestic terrorism, it should give one pause.  But, really, Trump has done nothing more than take well-honed Republican talking points to their logical ends.  His exploitation of the public's fear in the wake of the violence in Paris and San Bernardino (but not Colorado Springs) to fire up Republican voters with hateful, xenophobic rhetoric is right out of the standard Republican playbook.

Trump's latest comments are perfectly consistent with his campaign strategy that seeks to appeal to the worst aspects of the American psyche and are of a piece with his other abhorrent proposals -- building a wall between the U.S. and Mexico, abolishing birthright citizenship for children born to undocumented immigrants, mass deportations, closing mosques, and implementing a Muslim database. 

One would think that any reasonable, responsible, ethical Republican would have called him out long ago.  Perhaps there are no longer any reasonable, responsible, ethical Republicans.  Even now, Republican leaders like House Speaker Paul Ryan condemned Trump's latest remarks while acknowledging they would still vote for Trump if he were the Republican nominee. 

The other leading Republican candidates for president understand -- as Trump does -- the importance of stoking fear, panic and hatred to garner the support of the typical Republican voter.  The only difference is that they -- unlike Trump -- seem to understand that at some point they will have to pivot and appeal to the more sane sectors of the populace in order to remain competitive in a national election.  And so, while they agree with Trump's underlying premise that adherents to Islam are presumptively dangerous, they won't go as far as he is willing to go. 

Still, they go pretty far. 

Both Ted Cruz and Jeb Bush have pushed plans that would allow entry to Syrian refugees who are Christian but not Muslim. Ben Carson does not believe a Muslim should be allowed to become president and would also prevent Muslim refugees from entering the country, comparing Syrian refugees to rabid dogs.  Marco Rubio would shut down not only mosques, as Trump has vowed to do, but would close "any facility that’s being used to radicalize and inspire attacks against the United States."  Even the purportedly moderate (by comparison) John Kasich has proposed the creation of a new federal agency that would promote Judeo-Christian beliefs.

As these other Republican candidates denounce Trump's latest outrage, don't be fooled.  There is little daylight between them.  Trump's bombast is merely providing cover for their equally morally bankrupt campaigns

Friday, December 4, 2015

GOP Microcosm

What did the Republicans do this week? 

Seeking to undermine President Obama's efforts at the UN climate summit in Paris, they passed resolutions to roll back the EPA's recent regulations on reducing greenhouse gas emissions.  They blocked bills aimed at sensible gun control -- one that would prevent those on the no fly list from buying firearms and another that would have expanded background checks to include gun shows and online sales.  They voted to defund Planned Parenthood and repeal Obamacare.  On a positive note, they offered thoughts and prayers to the victims of gun violence.

Climate change denial.  NRA obeisance.  Hostility towards women's health.  Opposition to health care for the poor.  Meaningless religious gestures.

That's your Republican Party.

p.s.  According to the latest polls, more than 1/3 of Republican voters support a fascist.  Their second choice is a man who this week appeared to confuse a Palestinian terrorist organization with a spread made from garbanzo beans.

Wednesday, December 2, 2015

Thoughts, Prayers And GOP Obstruction Are Not Going To Stop Gun Violence

To qualify as a mass shooting requires at least four victims -- including the shooter -- who are either wounded or killed.  One would like to think that such incidents are rare.  But according to the Washington Post, San Bernardino's tragedy becomes the 355th mass shooting this year.  That's 355 mass shootings in 336 days. 

This is madness.

And while Democrats continue to push for gun control measures, the response of every Republican candidate to this latest mass shooting consists of nothing more than an offering of "thoughts and prayers" via tweets.  Meanwhile, their compatriots in the House of Representatives successfully blocked a bill today that would have allowed the Attorney General to bar sales of firearms and explosives to those on the no-fly list.

This is madness.

Then there was the mass shooting at the Planned Parenthood clinic in Colorado Springs last week by a man who was heard to utter "no more body parts," a direct reference to the false and incendiary blithering of Ted Cruz, Carly Fiorina and the other leading lights of the Republican Party/Anti-Choice Movement.  It is precisely this kind of hateful rhetoric that has contributed to an unprecedented level of violence against reproductive health care providers.  But these pious folks deny any responsibility and instead offer thoughts and prayers (and additional slander against Planned Parenthood).

This is madness.

As of this writing 14 people were killed today in San Bernardino.  This is the deadliest mass shooting in the U.S. since December 12, 2002 at Sandy Hook Elementary School in Newtown, Connecticut.  Nothing has changed since Sandy Hook.

We must stop the madness.  Think about the shooting victims.  Pray if that is your thing.  And then take action.  You can join Everytown for Gun Safety, a movement that is working to end gun violence and build safer communities.  You can give to the Violence Policy Center, which conducts critical research and investigation aimed at stopping gun violence.  And you can work to kick Republicans out of office and replace them with progressive-minded Democrats who will buck the NRA and pass way overdue meaningful gun control laws.

The Republican Party's Frankenstein

“If you’re a xenophobic, race-baiting, religious bigot, you’re going to have a hard time being president of the United States, and you’re going to do irreparable damage to the party.”   -- Lindsay Graham, New York Times, 12/2/15
Graham was referring, of course, to Donald J. Trump, but if you throw in misogynistic and homophobic, he just described all of the Republican's top-tier candidates, as well as a wide swath of their party's base. 

I can't recall when I've enjoyed a New York Times article as much as the one in this morning's paper: Wary of Donald Trump, G.O.P. Leaders Are Caught in a Standoff.  It describes the Republican establishment's panic over the possibility that Trump could actually win the party's nomination and their fear of the consequences if they try to take him down.

What is particularly amusing is that these stalwarts of the Grand Old Party seem remarkably unaware that Trump is their very own creation.  They fail to understand that he is a natural outgrowth of their cynical manipulation of the frustration and anger of the mostly white Christian voters who they have relied on in election after election but who are no longer willing to follow their lead. 

Charles Pierce has reminded us that it has been "one long, continuous plague of Republican extremism that began quietly when the party moved west and south in its orientation, and when Richard Nixon discovered that George Wallace was onto something that could be immensely useful to a shrewd and brilliant code-talker like Nixon himself."  Or, as William Greider explains:  "The GOP finds itself trapped in a marriage that has not only gone bad but is coming apart in full public view. After five decades of shrewd strategy, the Republican coalition Richard Nixon put together in 1968—welcoming the segregationist white South into the Party of Lincoln—is now devouring itself in ugly, spiteful recriminations." 

Encouraged by a compliant media that is wed to principles of false equivalency and "both sides do it," and thus has refused to reckon with the fact that one of our two major parties is controlled by radical extremists spewing dangerous falsehoods, the GOP has thrived. They've done so by encouraging Tea Party nonsense and birther madness. More recently, they've gleefully stoked hysteria over Black Lives Matter and Syrian refugees and Planned Parenthood's fetal tissue program to tragic ends.

Trump, apparently, has gone too far.  But, as many others have observed, how can a Party that put forward the bad joke that is Sarah Palin as the person to be a heartbeat away from the presidency have any credibility in now arguing that Donald Trump, on the contrary, is unqualified?

Indeed, Trump is simply a more vulgar version of the Republican Party's (slightly) more polished candidates.  In terms of actual policy, there is little daylight between Trump and the rest of the field on climate change measures (against), Wall Street reform (against), immigration reform (against), women's reproductive rights (against), gun control (against), admitting Syrian refugees (against), torture (in favor), tax cuts for the wealthy (in favor), social program cuts (in favor), Obamacare repeal (in favor).

Nevertheless, as the Times reports, for the GOP, "irritation is giving way to panic as it becomes increasingly plausible that Mr. Trump could be the party’s standard-bearer and imperil the careers of other Republicans."
Many leading Republican officials, strategists and donors now say they fear that Mr. Trump’s nomination would lead to an electoral wipeout, a sweeping defeat that could undo some of the gains Republicans have made in recent congressional, state and local elections. But in a party that lacks a true leader or anything in the way of consensus — and with the combative Mr. Trump certain to scorch anyone who takes him on — a fierce dispute has arisen about what can be done to stop his candidacy and whether anyone should even try
Ha. Ha. Ha.

Monday, November 23, 2015

California's Dysfunctional Death Penalty Can't Be Fixed

California's death penalty scheme is a costly government program that doesn't work.  The approximately 750 men and women on death row are far more likely to die of natural causes than be executed.  Their legal claims, if considered at all, take roughly three decades to resolve, an excruciatingly long period of time that is due to the inherently dysfunctional nature of the process and not, as is commonly believed, from frivolous claims raised by zealous lawyers taking advantage of the process.

Paula Mitchell, a professor at Loyola Law School, recently published an article, Frivolity and the Death Penalty, demonstrating that the inordinate delay in death penalty cases is in large part caused by the adversarial nature of the system itself where "prosecutors . . .  typically do everything within their power to forestall or prevent discovery in post-conviction investigations, which is often what is needed during the appeals process to ensure that everyone has been playing by the rules."

Professor Mitchell's piece focuses on the Georgia case recently argued in the U.S. Supreme Court involving the prosecutor's use of juror challenges to strike all the African Americans from serving on the jury. As Mitchell explained, the case took close to thirty years to be heard because of the resistance of the prosecution to provide their files -- files which, when finally handed over twenty years after trial, appear to undermine the race-neutral reasons that were originally proffered for striking the jurors. 

The obstacles to obtaining critical information about the homicide, the police investigation and the trial from the prosecution (as well as from law enforcement) is certainly not unique to Georgia. Take Kenneth Clair, an African American languishing on death row for an Orange County murder that took place in 1984, where the lone eyewitness claimed the killer was white.  More than 30 years later, his lawyers are still fighting to obtain evidence in possession of the prosecution, including DNA results that could establish the identity of the actual perpetrator.

Delay caused by the resistance from prosecutors comes not only from their multi-faceted attempts to deny or at least narrow the requests for their files.  The California Attorney General also relies on a remarkably Byzantine post-conviction process, using every possible procedural loophole to avoid litigating the cases on their merits that results in years and years of delay.

For example every claim raised in post-conviction must be "exhausted' in state court before it can be presented in a habeas corpus petition in federal court.  However, the California Supreme Court is notoriously stingy when it comes to funding investigation and expert assistance so that it is often only once a case moves from state court into federal court that attorneys are able to develop critical evidence.  But if a federal claim includes even one newly discovered fact to strengthen it, the AG will insist that the case return to state court for exhaustion purposes rather than litigate the claim's underlying merits.  Then, after such claims are denied in state court -- which eventually and inevitably they are -- and the case returns to federal court, the AG will launch a new series of procedural arguments having nothing to do with the claim's substance as a basis for dismissal.

This is just one example of the countless ways the prosecution uses extremely complicated provisions to endlessly litigate procedural issues that have nothing to do with the ultimate issues of the case.  And because of this complexity and the many pitfalls waiting for an unwary attorney -- deadly pitfalls which can lead to the wholesale waiver of critical claims -- only attorneys with specialized knowledge and experience can be qualified to represent death row inmates on appeal and in post-conviction habeas proceedings.  But given the extensive training needed, the decades-long commitment, the stressful and high-stakes nature of litigating life and death issues, and the intensity of having to identify every potentially viable claim while struggling to obtain adequate funding, there is hardly a plethora of attorneys willing and, more importantly, able to do so.  And most of those who are willing and able already represent several of the vast number of inmates already on death row and are understandably reluctant to take on any more cases. 

This provides an additional basis for delay.  Indeed, after an inmate is sentenced to death in California it takes more than five years to find a qualified lawyer to handle the appeal (involving issues that arise from the trial itself) and several more years to find one to handle the habeas corpus proceedings (involving issues that must be independently and painstakingly investigated). 

Professor Mitchell, it should be remembered, co-authored a ground-breaking study in 2011, concluding that California's death penalty system was costing the state about $184 million per year.  The study found  that "since reinstating the death penalty in 1978, California taxpayers have spent roughly $4 billion to fund a dysfunctional death penalty system that has carried out no more than 13 executions."  A year later, an updated study revealed that "if the current system is maintained, Californians will spend an additional $5 billion to $7 billion over the cost of [life without possibility of parole] to fund the broken system between now and 2050. In that time, roughly 740 more inmates will be added to death row, an additional fourteen executions will be carried out, and more than five hundred death-row inmates will die of old age or other causes before the state executes them."

Delay is an inherent part of capital litigation.  For the foregoing reasons and particularly in California, where virtually every homicide is eligible for the death penalty -- resulting in the largest death row in the country -- a fair, just and reliable review of death sentences is incompatible with a speedy, expedited process. 

California's death penalty can't be fixed; but it can be replaced with life without possibility of parole ("LWOP").  An initiative to do just that - - and that would require defendants sentenced to LWOP to work in prison, with 60% of their wages going to victim restitution -- may be headed for the ballot in 2016.  A Legislative Analyst's Office has determined that replacing the death penalty with LWOP would save California $150 million a year, by reducing the costs of trials and subsequent appeals.

On the other hand, a pro-death penalty group calling itself Californians for Death Penalty Savings and Reform has proposed its own ballot measure that clumsily attempts to solve the system's intractable problems without dealing with any of the root issues.  It would expand the pool of attorneys available to represent death row inmates and decentralize and streamline the process once attorneys are assigned.  Nothing in the proposal would provide funding to train this new group of lawyers.  And the so-called streamlining would not ease the procedural quagmire that causes so much of the delay.  Nor would it address the prosecution's resistance to providing its trial files.  What it would do is shorten the time to investigate and present claims, and limit possible avenues of revenue.  It thus promises to speed things up while providing less review and less skilled and experienced lawyers to navigate an impossibly complex process.  What could go wrong?

Friday, November 20, 2015

Jerks and Knee-Jerks: Profiles In Cowardice, Bigotry and Ignorance

Earlier this week, in a piece, Shame the Bigots But Address the Fear, I emphasized the importance of taking seriously the American public's genuine fear about safety and security, and not treating everyone who expresses concerns about the influx of refugees as a cold-hearted bigot.  But that doesn't mean we shouldn't also be calling out and shaming the cold-hearted bigots -- including, but not limited to, the entire field of Republican presidential candidates. 

There's Donald Trump, who proposes closing mosques in the United States, requiring all Muslims to register in a data base, and is not opposed to forcing them to wear special identification badges (yellow crescents?), drawing a disturbing parallel to Nazi Germany. 

Marco Rubio, given the opportunity to disavow Trump, attempted to trump him.  He would not only shut down mosques, but would close "whatever facility is being used — it’s not just a mosque — any facility that’s being used to radicalize and inspire attacks against the United States."

Jeb Bush and Ted Cruz believe we should only allow Christian refugees to settle here, drawing a disturbing parallel to the Spanish Inquisition.

Ben Carson, not to be outdone, compares Syrian refugees to rabid dogs ("If there is a rabid dog running around your neighborhood, you're probably not going to assume something good about that dog"), drawing a disturbing parallel to an ignorant nut case.

(For those keeping track, those five miserable human beings are supported by about 80% of Republican voters)

And then there are the panic-stricken House Republicans, who have voted for a "pause" in the process to allow refugees from Iraq and Syria, ignoring the fact that none of the Paris attackers were refugees -- from Syria or anywhere else --  and that we already have a painstakingly arduous process in place.  This paragraph from a New York Times article says it all: 
When pressed, most Republicans could not specify which aspects of the rigorous refugee vetting program that they found inadequate. [House Speaker Paul Ryan’s] staff members cited a Bloomberg poll of 1,002 adults released on Wednesday, conducted by Selzer & Company, that found that 53 percent of those surveyed said the resettlement program should be halted.
Pathetically, 47 craven Democrats voted with Republicans in a final tally of 289-137.

And then there are the majority of governors, including presidential candidate John Kasich, who would refuse to allow Syrians to resettle in their states.  One of the more egregious is purported Christian, Indiana Governor Mike Pence, who denied admittance to two Syrian refugee families the day before they were scheduled to arrive in Indianapolis.  (Connecticut's governor graciously accepted the two families)

Democratic Roanoke Mayor David Bowers said his city would not be spending any resources on resettling Syrian refugees, suggesting the U.S. consider a plan similar to the internment of Japanese nationals during WWII.

And let's not forget our elected state officials.  There's Republican Rhode Island state Sen. Elaine Morgan, who opposes resettling Syrian refugees because "[t]he Muslim religion and philosophy is to murder, rape, and decapitate anyone who is a non Muslim" and suggests that "we should set up refugee camp to keep them segregated from our populous [sic]."  And then there's Republican Missouri state Rep. Mike Moon who is calling for a special legislative session to stop “the potential Islamization of Missouri.”

The terrorist attacks in Paris have brought out the worst kind of fear-mongering and demagoguery from (mostly) Republican politicians.  These bigoted, inhumane and ignorant responses stem from the desire to pander to the least exceptional aspects of the American psyche for political gain as well as from what Paul Krugman describes as the right wing's propensity for panic.  Andy Borowitz, the great satirist, wrote a piece in the New Yorker this past summer, joking that "a group of scholars who have been monitoring the descent of the bar over the past few decades have concluded that the bar can no longer be lowered."  That proved to be far too optimistic.