Follow-up on blood donations

A few weeks ago, I wrote about the FDA finally revisiting its categorical ban on men who have engaged in homosexual sex donating blood.  Unfortunately, last Friday, the FDA's advisory committee on blood recommended that the categorical ban remain in place. 

I don't pretend to be an expert on blood donation and the risks for transfusion recipients, but I am pretty good with logic and the categorical ban for gay men donating blood is simply illogical, especially in light of other high-risk behaviors that do not result in categorical bans.  The bottom line is that our blood supply would be safer if donor screening always focused on the behavior of the individual donor instead of focusing on broad demographics.  As I noted before, there are other high risk groups who are not categorically banned from donating blood.  This article by Slate lays out the facts to support that argument.  African-American women are as a group at high risk for HIV infection, but no one would ever think of categorically denying every African-American woman from donating blood.  As well we shouldn't because there are better ways of weeding out truly high-risk individuals while allowing others who do not engage in risky behavior to donate.

I have to agree with the author of the Slate piece that such categorical treatment of potential blood donors is beneath us.  More importantly, though, I worry that this kind of thinking is ultimately harmful to our blood supply. 

Give it a rest, Arizona

Just when you think Arizona can't get any nuttier, well, another day brings another stupid proposed bill.  This time, some Arizona legislators want to pass a law that would deny birth certificates to children of illegal immigrants.  Proponents of the legislation claim that so-called "anchor babies" were not intended to be covered by the birthright citizenship clause.  Opponents, of course, respond that under federal law, "anchor babies" are U.S. citizens no matter what Arizona wants, so this bill is a worthless exercise that solves absolutely nothing and would easily be struck down as unconstitutional.  Really, the U.S. Supreme Court has been pretty clear on this point for a long, long time.  The "subject to the jurisdiction thereof" clause in the 14th Amendment doesn't exempt children of illegal immigrants; it exempts children of diplomats and foreign soldiers.

I can't help but notice that the only proponent of the bill mentioned in the article is a Republican.  The article also notes that "Arizona Republicans" are expected to introduce the bill in the fall.  Isn't the Republican Party supposed to be the party that wants limited government and to eliminate waste?  What is more wasteful than taking up valuable legislative time with debate over a bill that cannot possibly survive a court challenge? 

How hard is it to understand that no state can alter U.S. citizenship rights as granted by the U.S. Constitution?  Passing a silly bill that would prohibit the state from issuing birth certificates would not in any way, shape, or form change the fact that any baby born on U.S. soil is a U.S. citizen.  But it sure would waste a lot of state resources as all the parents or guardians of those U.S. citizens would have to go to court to protect the rights of those infants.

The times, they are NOT a changin'

Phew!  Because I know you were all on tenterhooks, worried about the fate of my beloved Kansas basketball Jayhawks, I am happy to report that all the conference realignment talk appears to be done.  The Big-10 (12) can have Nebraska and good riddance to the bad rubbish of Colorado.  The Big 12 (10) is alive and well, thank you very much.

Football is, of course, what was driving all the realignment talk, but basketball is what I really care about.  From a basketball perspective, I think this is the best outcome.   The Big 12 has traditionally been one of the very best basketball conferences, no matter what the east-coast-biased media and public believe.  So this move keeps our strong basketball tradition intact.  And we've actually managed to off-load two of our absolute weakest basketball teams.  So it's arguable that the league is actually better without those two.

We here in Jayhawk land have had a stressful week or two, but I think ultimately we'll put the big shake-up of 2010 in the category of all's well that ends well.

Winds of change

There's an old joke I learned many moons ago as a Kansas child. 

"Why is Kansas so windy?  Because Nebraska sucks and Oklahoma blows."

To a 9 year-old, this joke is hilarious.  But now at 36, I realize it is not a joke at all.  Nebraska completely and totally sucks.  And Oklahoma blows.  (Oklahoma State, too.)

And thanks to Nebraska's suckage and Oklahoma's blow-i-ness, Kansas is left twisting in the wind.  (Kansas State, too.)  This means that the greatest tradition in all of college basketball will be without a conference.  Unfathomable.

So far this spring my life has collapsed and now my college athletic conference is collapsing, potentially threatening the stability of my favorite sports team, the Kansas basketball Jayhawks.  Surely nothing else can go wrong this year, right?  Right?

Things I am not good at

1) Letting go.  I can't let go of arguments when I'm doggedly sure I'm right.  I can't let go of nasty opinions on newspaper comment boards.  I can't let go of the life I liked so much even though everybody seems to agree I don't get any say in the matter.

2) Ceding control.  I want to believe that I can control my little world.  I think I'm getting better in this respect, but I still am quite capable of flipping out entirely when something happens that is beyond my control.  I'm supposed to be a very persuasive advocate who can always make the winning argument.  So it's very hard for me to accept that I can't use my powers of logic and reason to get everyone in my life to see things my way and do what I want.

3) Having faith that things will work out as they should.  Faith and I are not friends.  I'm a believer in being proactive and making things happen rather than just waiting for things to develop naturally.  I don't have a lot of patience and I'm not big on trust.  I know I need to stop trying to force things to happen, but it's pretty counter to my nature not to take steps to ensure the outcome I think should happen.

These three failings of mine are all combining right now to make me crazy.  If I truly let go of something I don't want to let go of that means I'm ceding control over that major aspect of my life that I don't think should be entirely out of my control and it means that I have to have faith that by letting go and ceding control, things really will turn out the way they should.  My personal task for the summer is to work on learning to let go, ceding control, and trusting that things really will be ok.  Your mission, should you choose to accept it, is to remind me of this mantra when you see me backsliding.

In the category of "Everyone knows we still do this"

Not surprisingly, prosecutors in the south are still doing a bang-up job of keeping blacks off juries.  It's allegedly against the law to strike jurors solely on the basis of race, but it's really easy to do it as long as the prosecutor can come up with any reason that doesn't explicitly mention race.  Maybe we aren't all whole and healed on race issues just because we have a black president now.

Remaining silent isn't what it used to be

The United States Supreme Court issued a new opinion on the right to remain silent today.  You may have read about it.  Here is the opinion.  The actual crux of the decision is pretty simple:  If you want to invoke your right to remain silent, you just have to tell us.  When you put it like that, it seems innocuous enough.  But it isn't.  It's a dangerous opinion that shows the majority of this court has no connection to the real world of criminal suspects.  It shows that the majority thinks the "rights" of police are equal to the rights of suspects.  And it shows we might be in for a long, bad ride with this court.  But at least Sotomayor showed her stripes in dissent.

Let's break down what the Court really said.  The defendant in this case was read his Miranda rights and essentially remained silent for almost 3 hours before caving and giving three "yes" responses that were ultimately relied on by the prosecution to prove his guilt.  (Well, he did say the chair was too hard and he didn't want a peppermint and he said "yes" or "no" once in a while, though the opinion doesn't specify what questions those words answered).  From this, the majority concluded that the defendant never invoked his right to remain silent.  You have the right to remain silent, but if you remain silent, we'll presume that you have not invoked that right to remain silent.  When we said you could remain silent, we didn't mean that literally.  You have to actually tell us you want to remain silent.  Gee, that makes sense. 

Why is the burden on the suspect to end questioning?  Shouldn't the burden be on the police to get an affirmative, clear waiver before beginning questioning?  At the very least, if today's decision is right, shouldn't the Miranda warnings be modified to ask suspects if they wish to invoke the right to remain silent?  (I fear the majority's response might well be that we don't need no stinkin' Miranda warnings...)  The police, and evidently the majority, don't want a system that presumes invocations of the right or even a system that makes it too easy for suspects to invoke.  That would stand in the way of police getting confessions and we know our adversarial justice system would just crumble without confessions. 

One central question in this case is this: is the right to remain silent a right one can waive or a right one must invoke?  Miranda and its progeny have always spoken of the state having to prove that the defendant waived the right to remain silent.  (A defendant must affirmatively and unequivocally invoke the right to an attorney, but that is a very different right.)  This new case treats the right to remain silent as a right that must be invoked.  Verbally, not just through the act of remaining silent as the police always tell a defendant he can.  It's a subtle shift, but not an insignificant one.


For questioning to stop when a suspect wants a lawyer, the suspect must make an unequivocal statement invoking his/her right to a lawyer, so the majority sees it as totally reasonable to apply that same standard to the right to remain silent.  The problem is that people often don't speak unequivocally.  A suspect might say, "Can I have a lawyer now?"  That suspect will think she has made clear her desire to cease questioning until she talks to a lawyer.  But courts have repeatedly held statements like that are not clear and unequivocal invocations that require police to stop the interrogation.  So imagine a suspect saying, "I don't think I want to answer any questions."  Well, that's not clear and unequivocal, is it, so police will most likely be allowed to continue probing.  Police are given far too much latitude to interpret what a suspect means.  The longer police are able to keep talking to the suspect, negotiating about whether that suspect is really sure she doesn't want to answer any questions, the likelier it is that the police will break that suspect down and get some incriminating statement out of her.  And the whole point of the right to remain silent is that suspects don't have to engage with police at all if they choose not to.  But the majority has now put suspects in the contrary position of having to engage with police.

To me, this is like dealing with UnLocke the Smoke Monster on LOST.  A big point was made by many characters that people should not allow Smokey to speak to them because once he did, he could be so darned persuasive that you wouldn't be able to resist.  That's the same problem at issue here.  The majority is requiring suspects to engage in a dialogue with police to invoke their rights not to engage in a dialogue.  But, let's be honest, in most dialogues, the police have the upper hand.  Especially since police and courts are pretty good at seeing ambiguity in statements that most people would think are pretty clear.  Since, as documented by Justice Sotomayor in her dissent, statements like "I'm not going to talk about nuthin'" and "I just don't think I should say anything" and "I don't even want to, you know what I'm saying, discuss no more about it" and "Okay, if you're implying that I've done it, I wish to not say any more.  I'd like to be done with this", among many, many others, were all found to be ambiguous and too equivocal to be a successful invocation of Miranda rights.  So now suspects have to run this tricky gauntlet of uttering the magic words that no cop can claim is anything other than an unambiguous, unequivocal, absolutely clear invocation of the right to remain silent.  Seems it would have been simpler for suspects if they could just remain silent and have that be respected.  And it would be far preferable to me if the state had to get a clear and unequivocal waiver before they could ask questions.  But we wouldn't want to tell police they can't interrogate suspects unless those suspects specifically, knowingly, and voluntarily agree to waive their right against self-incrimination.

The majority's decision comes from the point of view that police have just as much right to interrogate suspects as suspects have the right to remain silent.  And that scared suspects will magically know exactly what to say to avoid an interrogation.  But that's not the reality.  People under police suspicion can quickly become confused, tired, overwhelmed, and willing to say anything.  It's important to note that a not insignificant percentage of wrongful conviction cases involve false confessions.  The concern that overzealous police questioning will yield false confessions is a real one.  So there's a reason why I'm so troubled by the notion that suspects have to say something to get the police to stop talking to them.

Can it really still be said that we have the right to remain silent if we have to speak up?