The blues are winning tonight

Every once in a while, ultimate truth needs to be spoken.

So right now, I'll say it.

I'm miserable.

Lonely beyond belief.

Constantly feeling sad, worthless, unlovable.

And I'm having a really hard time envisioning being stuck living another 50 years like this.

(My family is all ridiculously-long lived, even with things like MS and congestive heart failure. And I'm the healthiest person my family has ever known. On the upside, maybe that means I'll be the one to die young.)

I just can't take this for much longer. Let alone until I'm 90.

When you sentence someone to life in prison, that means you're stuck taking care of that person for, well, life.

We have a problem in this country. This tough-on-crime, ever-lengthening-prison-sentence-lovin' country of ours. The problem is that when you turn to longer and longer prison sentences, make parole less and less common, eventually you wind up with a whole lot of prisoners who are just too dang old to be in prison.

The octogenarian set isn't well-suited to prison life. Elderly men have a hard time getting up from a lazy boy. Imagine watching them try to get up from a metal slab with only a thin mattress for cushion. Prison is all hard edges and harsh atmospheres. Regular prison units just aren't set up for 90 year-olds.

And then there are the health issues. Failing organs, cancers, incontinence. The basic indignities of getting old. Don't forget the big one: dementia. Prison guards with their small salaries and lack of medical training just aren't equipped to take care of incontinent Alzheimer patients in their 80s.

It's a rather untenable situation, as pointed out by Jamie Fellner in this NYTimes op-ed.

I don't want to offer solutions to where we house these elderly inmates. I don't want to encourage compassionate release for those near the end of long lives. (That wouldn't exactly be a money saver for the taxpayers, anyway, as inmates who have been incarcerated for 50 years and are now 80 or older probably don't have any resources or much family to fall back on. We're most likely stuck footing the bill for them either way.)

Instead, I want us to take a good, hard look at why we're so dead-set on long, long prison sentences for everyone. We're costing ourselves so much money. On the housing costs for perfectly young, able-bodied, health inmates to begin with. Then the costs of the elderly inmates they turn into. Or if they do get released someday, we're still stuck paying for them because they have no way to support themselves. We're creating this class of people who will never again be able to contribute to society. So we wind up having to pay for everything, forcing them to live as outcast financial drains. This is why life sentences for everyone is a very short-sighted policy.

We just incarcerate too many people for way too long. This aging prison population problem is just one way in which we are going to pay for our addiction to life sentences.

Here's to you, Lawrence Fucking Kansas

Today is kind of a big day in our town's history. On this day in 1863, men from Missouri under the leadership of William Quantrill rode into Lawrence, Kansas before dawn. By the time they left hours later, most of the town was on fire, each building torched to drive out any men hiding inside. Approximately 180 men and boys had been murdered, many in front of their wives, mothers, and children. The town had been looted for supplies. Who knows how many women were sexually assaulted.

The number of dead was a large percentage of the town's population. That percentage translated to today's population would be around 8,000 people. There in the morning and dead by noon.

Not all of the men and boys in town died, of course. The main target of the massacre, Jim Lane, eluded the Border Ruffians by hiding in a cornfield. Another man hid in his well, knowing he was a sitting duck if the raiders thought to look there. According to legend, young men were hastily shaved and dressed in their mothers' or sisters' clothes. Women threw themselves in front of their beloved husbands to shield them from the raiders' weapons. But they were easily tossed aside and made to watch as their husbands were summarily executed. In an infuriating post-raid comment, Quantrill described the "feistiness" of Lawrence women. As if he expected our women to just stand idly by and do nothing as their town was destroyed and their men slaughtered?

By noon, Lawrencians had begun the process of rebuilding, with the first task being to identify and bury the dead. Witnesses describe digging through piles of rubble to find nails so coffins could be hastily built. Under the hot August sun, the stench of death and fire was unlike anything even seasoned farmers could have imagined.

So why did all of this happen? Ask a Kansan (like this one) and you'll hear a heroic tale of unarmed, peace-loving people who simply wanted to live free in a free state. Ask a Missourian and you'll hear some tripe about retaliation for an earlier raid conducted by Jim Lane's red-legs, aka Jayhawkers. The real history goes back to the formation of Kansas as a state, when the people living here wanted to join the union as a free state while people living just across the border in southern Missouri relied too much on slavery for their economy and were not thrilled about having yet another free state neighbor. In the years while Kansans were trying to pass a Constitution that would earn the state entry into the union, Missourian Bushwhackers (or Border Ruffians) came into the territory and tried to make sure our elections went the way they wanted. (They succeeded on the first Kansas Constitution, which meant the true Kansans just had to vote again.) Eventually, the people in Kansas started returning the favor with incursions into Missouri that weren't so nice. This included one raid on Osceola, Missouri in 1861 that left 8 people dead. (The raid for which Missourians now try to claim the Lawrence massacre was retaliation for. 2 years later. Uh-huh.)

Missourians have to ignore all the greater history and cling to that silly retaliation (not revenge!) claim because deep down in places they don't talk about at their Missouri parties, they know the ultimate cause they were fighting for was less just than ours. You'll also still hear Missourians challenge that Kansans weren't all that noble because our reasons for opposing slavery weren't totally based on moral disapproval of owning people. To which I have to respond, does it really matter why one opposes slavery?

But I admit that I am biased. While I acknowledge Jim Lane's red legs did bad things, I still maintain in a two-sided guerilla warfare situation, the side working for the abolition of slavery has the eternal moral upper hand. And nothing justified or could justify what was done to the civilian population of Lawrence on that August morning 150 years ago.

Ultimately, what we should focus on, what the take-away should be, is that this catastrophic massacre made this town stronger. It informs our traditions and heritage. To this day, we proudly proclaim our heritage, in the name of one of our high schools (Free State High) and the most beloved local hot spot (Free State Brewing Co, because without beer, things do not seem to go as well), where John Brown ale is a popular offering.

People living in Lawrence today, 150 years later, still feel joined together by the legacy of that day. Maybe it's because there are still buildings downtown that have bullet holes and fire damage. Or because around town, we all know which houses were built after that awful day, when so little of the town remained standing. We pass by the Eldridge Hotel, knowing the story of the small child who was trapped inside and died when that building burned. Our cemeteries are filled with markers of those who died that day. And many of our residents are part of families whose roots in Lawrence predate the massacre, so the tales of that day aren't just part of the local lore, but their specific family history.

So this is why Kansans today still give a little fist pump when we see the scene from "The Outlaw Josey Wales" when the feisty grandmother declares, "We're Jayhawkers and proud of it," as she declines to buy any molasses from Missouri. It's why we still chuckle when Marge points out to Grandpa Simpson that his flag only has 49 stars and he insists, "I'll be deep in the cold, cold ground before I recognize Missourah!" And why before those Missouri chickens turned tail and ran to a different conference, the KU-Mizzou rivalry was bar none the fiercest in sports. Sure, it's all in good fun, but deep down, we Kansans are still well aware that they burned our town down. When Missourians see today as a day to "celebrate" (which they do: see twitter and this bar, celebrating Missouri's "most decisive road victory"), they make it hard for us to fully forgive and forget.

You can't shake a stick in this town without finding some evidence of our unity, our tradition, and our deep pride at living in a town whose people stood for something. Those Missouri ruffians may have won that day, but Lawrence (and abolitionists everywhere) won in the end. The town that rose back up from the ashes of that day is better and stronger than it was before its character was so thoroughly tested. So its very fitting that this week's special brew at Free State is called Phoenix Rising, a "red, fiery-hued lager" named after one mythical bird to celebrate the spirit of another mythical bird.

Jayhawks, wherever you are, remember to raise your glass tonight (preferably a glass filled with Free State beer) and say a toast to the town that could not be stopped on its way to becoming the very best town in the nation. Free State Forever.

Stop and frisk is a horrible, evil, ineffective, awful, and blatantly unconstitutional program. It is a stain on New York City. It is despicable that the powers that be came up with it in the first place and continue it to this day. It is outrageous that a federal court judge had to tell New York City that even in that city, the same standard applies to all persons: that a police officer must have reasonable suspicion a person is committing or has committed a crime before that officer can stop that person. And even with that, somehow, NYC cops still aren't exactly being told, "STOP IT!" It's infuriating.

That is all there is to say about that.

Tonight on "I Don't Think You Can Do That, Your Honor"

In an ideal world, all children would be born into happy, uncomplicated, drama-free situations where the parent or parents had no conflict, no financial difficulties, and could focus on providing all the kisses and puppies and educational opportunities any kid could hope for. In this ideal world, it goes without saying that if there are two (or more) parental type units, they would all come to an easy agreement about something as the kid's name. Oh, and unicorns would deliver coffee and candy and mojitos all day long.

But, of course, we don't live in an ideal world. Kids are born to couples who break up and then can't agree on what last name the kids get. So, sadly, there is a body of case law that dictates how judges should make decisions when parents come to court to settle the name issue. As with most issues surrounding children, the prevailing standard seems to be the best interests of the child. There are numerous factors judges should consider in determining what is in the best interest of the child: things like custody, names of siblings, whether the child might be confused about who the parents are, etc. And generally reviewing courts will look to whether the trial judge abused his or her discretion in applying that standard.

Today came headlines of a child support magistrate in Cocke County, Tennessee (not pronounced "cook") who had just such a case come before her. The mother had put her own surname (Martin) on the birth certificate when her now 7-month-old son was born. The father (not married to the mother) wanted it to be his name (McCullough). So what did the magistrate judge do? Out of left field, she renamed the kid entirely! Martin McCullough! (She did keep the middle name the same.)

Why the name change? Because the child's given name is Messiah and that does not sit well with Lu Ann Ballew. "The word Messiah is a title and it's a title that has only been earned by one person and that one person is Jesus Christ," she told a local t.v. station.

I trust that everyone but the trolliest of trolls and Ms. Ballew herself gets what's wrong with this ruling. I would think the establishment of religion violation would be clear enough.  (As in a US court doesn't get to use a religious belief as a basis for a court ruling, which is exactly what this judge did per that quote.) There's also the interference in fundamental rights aspect of a court or other governmental agency not having any say whatsoever over certain aspects of parenting. Like what the parents choose to name the kid. Since here, Mom and Dad agreed to the first name, the judge had no say over that whatsoever.

That's what made this case make news and what all the news reports are focusing on. But I'm so curious about the other part of it, the part where the judge also gave the kid the dad's last name. And none of the news reports are even mentioning that part! I've tried to find a more thorough article that might go into it. Or a written decision from the judge explaining the decision. Based on what she did with the first name, I just have this feeling that the judge doesn't have a better explanation than "kids carry the dad's last name." That would be a definite abuse of discretion. (It would violate the equal protection clause to say that a father has superior naming rights over the mother.) Obviously, the last name thing isn't what makes this case unusual, but this law nerd really wishes she knew more about the rest. (Basic things like what's the custody arrangement? We know the baby has siblings through the mother: are they full siblings who both have dad's name? Or are they half siblings who have mom's name?)

In the end, I'm pretty confident that the entire name decision will be overturned on appeal (yes, Mom is appealing, naturally, and it sounds like the ACLU might get involved). And why am I so confident? Because, Your Honor, you can't actually veto a name the parents agreed on based on your own religious views. Duh.

Defense Exhibit A

Sometimes I assume people think I and my fellow defenders exaggerate the flaws we see in the criminal justice system or overstate how unfathomable and indefensible some prosecutorial decisions are.

For those people, I'd like to offer Aguilar v. Woodford as Defense Exhibit A. I'd really like people (especially the non-criminal lawyers) to read it. It's fact-intensive more than law-heavy, so don't be scared if you're not a lawyer.

For those of you who don't feel like reading it, here's a quick run-down: Victim is shot while driving his car. The passengers in his car are unharmed. Those passengers offer descriptions of the shooter, all of which put the shooter at shorter than Aguilar. Odd as studies show that witnesses tend to overstate the height of the person with the gun, not understate it. But there's another guy (named Osuna), facially similar to Aguilar, who is several inches shorter (you know, closer to the descriptions). And odd little fact: Osuna had a brother who was shot days before this shooting. Suspect in that shooting? Prize to you if you guessed the victim. Remember that the passengers were unharmed, suggesting this wasn't a gang-turf shooting, but a specific targeted shooting.

Then there were rumblings that Osuna was running around the neighborhood admitting he just shot a guy. And Aguilar's girlfriend/baby mama said he ran out of a gathering the day of the shooting when he saw the victim's red car drive by. Naturally, the prosecution didn't put much stock in that. But she did do lots of leg work to track down Osuna and find witnesses who would testify to his incriminating statements.

Certainly seems like there was at least enough reason to at least investigate Osuna, right? Yet for some reason, the prosecutor directed the police not to expend resources on Osuna because it would be a wild goose chase.

Since the case caption includes Aguilar's name, you should already have figured out that Aguilar was convicted of the murder. But with all this Osuna stuff, there's at least reasonable doubt, right? (Oh, silly naive kids who believe that juries actually respect the presumption of innocence and the state's burden of proof beyond a reasonable doubt.) What other evidence was there against Aguilar that led to his conviction?

Dog scent.

Yep, you read that right. A dog and his nose put Aguilar in prison with a life sentence. (I will not name the dog because darn it, it's not the poor pooch's fault that people have misused him in this way.)

Here's what the guy behind the dog scent nonsense does. He "rubs" a pad on the seat of the car known to have been the shooter's get-away car. He "rubs" another pad on the suspect's clothes. Then he has the dog smell the known pad rubbed on the clothes and takes the dog to a line-up of 4 pads, one of which is the pad with the car smell. And using his super keen sense of smell, the smart, smart doggy hit on exactly the pad the handler would have hoped, the one that came from the car. (Small detail: the smell test wasn't done until over a month after the murder, so it's highly questionable the smell would have lasted that long.)

The prosecution relied heavily on the scent "evidence" both with witnesses and in closing argument. And only after it's all over and Mr. Aguilar is sentenced to prison does the defense learn that the prosecution knew all along that this evidence was bunk. Or at least highly, highly questionable. The appellate decision talks about the dog having a high error rate, but I don't think that's fair. It's not the dog who screwed up. The dog probably picked up on cues and did exactly what his person wanted. But this same dog in a previous scent line-up had led to a guy who definitely didn't commit the crime as he was in jail when it happened, for example. Moreover, the DA's office had stipulated to this particular dog's high failure rate in a previous trial. After that previous stipulation, the chief public defender wrote a letter to the DA stating that the failure rate of the dog was exculpatory information that the DA should turn over in any case involving that dog. Apparently the lesson the DA took from that stipulation and subsequent letter from the chief public defender was that the office just shouldn't tell defense attorneys about the problems with that dog's evidence.

It's pretty well-established law that the state must turn over to the defense exculpatory evidence in its possession. It's also pretty well-established that if any one person in the state possesses the exculpatory information, that knowledge is imputed to the specific prosecutors on the specific case. This way, cops can't just squirrel info away in a hidden drawer without ever telling the prosecutor, thus keeping the exculpatory info from the defense. The fact that the dog scent line-up was so flawed and that the prosecution knew this particular dog didn't have a great track record was clearly exculpatory information that should have been disclosed, especially given how heavily the state relied on this evidence at trial.

And this is the kind of case I see way too often. At least as much, if not more, evidence implicating someone else. And yet a dogged determination for some reason I can never fathom to ignore the other suspect and focus solely on this guy. Reliance on junk science (see tonight's earlier post). Refusal to be open with defense counsel about the problems with that "scientific" evidence. Then on top of all that, it wasn't the first court who heard about the dog scent problem who granted Mr. Aguilar relief. It wasn't even the second. It was at best the third court who reviewed this case who finally acknowledged what a deeply-flawed conviction this was. That's how it goes way too often.

Yes, there are a lot of decent prosecutors and sensible courts. There are even defense attorneys who make arguments that should lose. But this stuff happens, too. We really aren't making it all up.

Suggested viewing for anyone interested in learning the truth about forensic sciences

I am just now getting around to watching an episode of Frontline, the PBS documentary, titled "The Real CSI."  The episode originally aired in April 2012 and was recently re-aired. From the link, I believe it is now viewable online, though I can't guarantee how long it will be available if at all to you.

If I had my way, though, this would be required viewing for all prosecutors, defense attorneys, judges, CSI wannabes, and all prospective jurors. So basically all citizens.

Forensic sciences aren't what they're portrayed to be on t.v. They aren't what people on message boards think they are. More importantly, they frankly aren't how they're portrayed in court. Much of what passes for science in courtrooms is junk promoted by people who don't know what they're talking about. But they have degrees and lots of experience and they use big words, so their views are accepted by judges, prosecutors, and juries who don't have the expertise to see through the claims.

Prosecutors always bemoan "The CSI Effect," complaining that they can't get convictions without presenting scientific evidence. I think the real CSI effect, though, is rather the opposite: when the prosecution does put on scientific evidence, be it fingerprints or dog scent line-ups or bite marks or whatever, juries accept it.

On this show, one of the nation's most renowned fingerprint experts blew the reporter's mind by calling the act of declaring a fingerprint match to be a "leap of faith." The very premise of fingerprint analysis is based on an unproven (indeed a false) premise: that all fingerprints are totally unique. Poor Brandon Mayfield, the Portland attorney who was wrongly accused in the Madrid train bombings of 2004, exposed the untruth of that premise. It doesn't appear too many established FBI fingerprint examiners are too interested in figuring out if his case of mistaken fingerprint identity is an anomaly or the tip of the iceberg.

Science is complicated and something most of us don't think about much after we get done with the science requirements for graduating high school. I fear that most of us tend to defer to the "experts" too easily, having forgotten that a key requirement for any consideration of scientific claims is skepticism. Science can be a tremendous tool, when done correctly. But when it's bad... Well, it's like the girl with the curl: when it is good, it is very, very good, but when it is bad, it sends innocent people to death row.

So watch this episode of Frontline or read articles critical of forensic sciences. If you get called for a jury before doing either of those, though, here are some thoughts:

Be wary of experts who base their conclusions on their years of experience, not rigorous application of the scientific method to repeatable testing.

Be wary of experts who claim infallibility or no error rate.

Be wary of DNA analysts who declare 100% matches on partial DNA profiles or fingerprint examiners who declare matches on a small number of print points. Be very wary of the examiners who aren't open to considering the possibility that there are more DNA and fingerprint similarities than we had previously realized.

Microscopic hair analysis is bunk, so for sure be wary of anyone who says otherwise.

I know I've said all this stuff before elsewhere and have begged people to be more critical toward forensic sciences. But it needs to be repeated again and again as long as bad science is clogging our courts and sending people to prison.