Northeast Penn, Represent , Represent, -sent!!!

Owing to the success of the still-funny NBC series, The Office, Scranton, Pennsylvania is enjoying a boom in tourism related to the show. (In what I think is a move that should have been made years ago, NBC is offering all of its original programming as streaming media online. Popular shows have 2-3 commercials every 10 minutes or so, but according to the Missus, crappy ones, like Las Vegas, only have one commercial at every break.)

Now, let me say that I have never actually "visited" Scranton. I did drive through in 2002 on the way to skiing in the Poconos. It did not appear to be a particularly nice place to visit (one mountain was covered with what looked like oil/gas wells) and my friends from the area confirm that most of the traffic to the town is headed one way in the wrong direction. So it's good to see the town's government being smart enough to embrace whatever bones get thrown their direction by doing stuff like putting up a Dunder Mifflin banner at City Hall and recognizing a fake company on the Chamber of Commerce web site. This is in contrast to how the nation of Kazakhstan reacted during the buildup to the release of the Borat movie. They held press conferences denouncing Borat, pulled Borat's .kz web site, and even decided they needed to run several full page ads in the New York Times about the reasons why Kazakhstan was a great progressive place to do business (Reason #327: Age of consent has been raised to 8 years old).

Remember folks: any publicity is good publicity.

I bet Judge Keller got a chuckle out of this.

The Onion does judicial incompetence and intellectual chicken shittery.

More Errors & More Tragicomedy

To be filed, I suppose, under "If you're not angry yet, then you haven't been paying attention".....

Judge Sharon Keller, who never met a death penalty appeal she didn't want to ignore, has decided to stop taking calls about her crackpot decision to shut it down at 5 p.m. and let the folks down in Huntsville "get 'er done". If you are an elected official, you need to face the heat, Judge. Don't hide behind your robes. Come clean and tell us the truth: you just didn't give a crap. You knew what the ultimate result would be so you just took it upon yourself to stop the appeals process and save the taxpayers some money. (What, ho? Judicial activism? Not by a Republican judge!!!!)

(Note to the Texas Commission on Judicial Conduct: when former briefing attorneys for the Court of Criminal Appeals are calling out a sitting Presiding Judge for what amounts to chicken-shittery, it might be time for some appropriate punishment. In the unlikely event of a sanction with balls, I'm sure Mrs. Keller will be allowed to make full use of her appellate rights.)

I think I just threw up in my mouth

Joe Francis, the model American who created and owns Girls Gone Wild, has apparently listened to his advisers and has created a PR web site entitled "Meet Joe Francis" (trust me, you'll throw up too when you see the classy soft filter image of Joe laughing and looking off-camera). I prefer this shot:
Earlier this year, Mr. Francis was thrown into jail for contempt by the judge overseeing a civil suit against him in Panama City, Florida (and he also had a tax evasion charge in Nevada). The charges were dismissed last week and I guess the fact that the ad was running in the Destin paper was an attempt by Mr. Francis to rehabilitate his "image" to the good folks of Florida's Panhandle.

You know, some of these women may have actually consented to waiving their rights to images and videos taken of them in night clubs. But is Girls Gone Wild really without blame? I mean, as near I can tell, their operation relies on women who are either drunk, intoxicated, or buzzed (or in environments where the majority of the people are) get them to sign waivers (often while crowd members are chanting for them to take it off) and film their breasts or them making out or having sex with other wild girls (depending on how drunk they are). They're not going into Starbucks in Anchorage or the Philharmonic in Boston or a Chili's in Dallas and asking women to take their tops off when they're in full control of their rational or even their emotional minds.. They're going to Spring Break in Daytona or Destin or South Padre or Panama City and buying drinks for folks, then asking them to sign something, then filming their titties. It's exploitation at it's worse, as it's not like these girls receive anything approaching "fair"compensation. They get a t-shirt or a hat for their work and Francis makes millions. Maybe the next law suit needs to focus on the unequal bargaining power of the parties and pursue some sort of contract of adhesion theory.

And what this site is really about, is grabbing the attention of all the bar and club owners in Destin and Panama City and saying "Look. I promise you will not be sued if we film at your establishment." (So I guess it's "Titties, Ho!" for Spring Break 2008.)

Anywho, the site is just sellout garbage and I have to think it made the designers/programmers sick to their stomachs. But I bet they could afford a lot of Pepto.

The Texas Court of Criminal Appeals: A Comedy of (Harmful) Errors

The news and blog community has been abuzz the past few days with the story about how Presiding Judge Sharon Keller made sure her staff got to go home at 5 p.m. on the button, preventing a last-minute appeal from be filed in the case of Michael Richard. As a result, his execution went ahead as scheduled. Editorials from across the state (and the world) have lambasted her for allowing the clerk staff to go home at 5 p.m. while Richard's defense lawyers were trying to overcome a computer crash and submit his appeal.

Before we talk about how ridiculous this is, let's set a few things straight:

- The appeal was based on a recent grant of certiorari by the SCOTUS on the issue of whether the lethal injection cocktail used in Kentucky (and in Texas) constituted a violation of the Eighth Amendment's prohibition of cruel and unusual punishment. Basically, the Kentucky defendant argues that cocktail very often results in an agonizing death for the folks it's administered to. (The fiancee also likes to point out that the same cocktail has been banned from use as a euthanizing agent for animals for the same reason.) Some people may say, "Hey, great! Fuck these people. They killed and they should suffer." But that's not the way things operate in the U.S. & A. The Eighth Amendment acts as a restraint for this impulse. It requires that if we are going to kill people we must do it in a "civilized" way. Apparently, that means that death by a firing squad, the gas chamber, the electric chair, hanging, or some other form of lethal injection is OK.

- There is a legitimate question about what Richard's lawyers did in this case. Keller has said she had no idea that the delay was due to some technical glitch, and it is unclear if that information would have resulted in an extension being granted. I have also learned that since a lot of death penalty litigation is essentially delaying the process for as long as possible (especially for folks whose cases might actually merit capital punishment), that the lawyers waited to the last minute to file the brief. That's fine, but that doesn't mean you should wait to the last minute to write the brief. That shit needs to be sitting in the fax machine ready to transmit at 4:59 or whatever to insure that it gets filed on time. Furthermore, why not contact Cheryl Johnson, one of the other judges who was waiting on the appeal?

(This is not to trash capital appeals attorneys. You guys have one of the world's toughest jobs which basically requires you to defend the indefensible. But everyone still has to do their jobs, and it doesn't seem to me that every i was dotted and t was crossed here.)


All that being said, Sharon Keller deserves a swift kick to the rear for this gem (and rightly deserves the criticism leveled at her at SharonKiller.com). If you are a society that is going to show how valuable life is by having the government kill those who take it(?????), you have to absolutely be sure that you get the right guys (and Texas alone has shown it has a huge problem doing that) and that you afford every opportunity to make sure that you follow the rules. Administrative convenience is not a good justification for a failure to consider an appeal. You want to kill people? Then that clerk's office needs to be ready to accept appeals for longer hours on the days before executions. And the judges need to be available. That's why you get paid so much money; occasionally you have to work late hours.

(If you are interested, you can sign a copy of the complaint that will be forwarded to the State Commission on Judicial Conduct here. I certainly encourage everyone who believes in the principals of due process to do so. Democracy in action, y'all.)

Flag Wars & Vigilantism

By now, I'm sure almost everyone has seen the story of this Vietnam Veteran in Reno, Nevada. Basically, Mr. Jim Broussard noticed a Mexican flag being flown above and on the same flagpole as Old Glory, so he called the news station, waited for the camera crew, went on to private property, pulled out a 6-inch knife, cut the American flag down, brandished the knife in the presence of the owner and said, while holding up the knife in the presence of the bar owner/manager (among other things) "If they want to fight us, then they need to be men, and they need to come and fight us. But I want somebody to fight me for this flag. They're not going to get it back." See the video here. Some good comments, too (mine excluded, of course :) )


There has been a bunch of bs flying around on this, and I think it behooves us to understand a few things.


Issue 1: Legality of the Flag Owner's Display
It is not an enforceable crime to fly the flag in this manner. Several people have pointed out that the US Code prohibits the display of another nation's flag above the American flag on the same pole (along with many other minutia about it's display and treatment). However, the provisions of Title 4 USC 1 et. seq. specify no penalty for a failure to properly display the flag. In that sense, it may be a federal crime, but it's impossible to enforce because there's no penalty. Nevada criminalizes the desecration of the United States' flag ("Any person who, in any manner, for exhibition or display, puts or causes to be placed any inscription, design, device, symbol, portrait, name, advertisement, words, character, marks or notice, or sets or places any goods, wares and merchandise whatever upon any flag or ensign of the United States, or state flag of this State, or ensign, evidently purporting to be either of the flags or ensign, or who in any manner appends, annexes, or affixes to any such flag or ensign any inscription, design, device, symbol, portrait, name, advertisement, words, marks, notice or token whatever, or who displays or exhibits or causes to be displayed or exhibited any flag or ensign, evidently purporting to be either of the flags, upon which shall in any manner be put, attached, annexed or affixed any inscription, design, device, symbol, portrait, name, advertisement, words, marks, notice or token whatever, or who publicly or willfully mutilates, tramples upon, or who tears down or willfully and maliciously removes while owned by others, or defames, slanders, or speaks evilly or in a contemptuous manner of or otherwise defaces or defiles any of the flags, or ensign, which are public or private property, shall be deemed guilty of a misdemeanor."), but it doesn't appear to penalize flying the flag the way the bar owner allegedly did.

Even if the owner of the flag was guilty of violating either Federal or Nevada law, there's small problem: it would be UnConstitutional to penalize anyone for doing so. You see, in 1989 the United States Supreme Court decided that the First Amendment prohibited criminalizing the burning of the American flag, after a man was arrested at the Republican National Convention in Dallas in 1984. (You can check out the oral arguments made in this case here. Kewl.)

Writing for the majority in Texas v. Johnson, Justice Brennan reasoned that "the restriction on Johnson's political expression is content based, since the Texas statute is not aimed at protecting the physical integrity of the flag in all circumstances, but is designed to protect it from intentional and knowing abuse that causes serious offense to others. ... The government may not prohibit the verbal or nonverbal expression of an idea merely because society finds the idea offensive or disagreeable, even where our flag is involved. Nor may a State foster its own view of the flag by prohibiting expressive conduct relating to it, since the government may not permit designated symbols to be used to communicate a limited set of messages." (U.S. v. Eichman extended this to Congressional attempts to criminalize flag burning.)

If the government cannot restrict you from burning the American flag, then it cannot rightly punish people for improperly displaying it. Therefore, even though the law is still on the books in Nevada (and most states), it cannot be enforced because it is Constitutionally defect. Therefore, the bar owner is guilty, if at all, of an unenforceable crime.

Issue 2: Legality of Mr. Broussard's Actions
The elephant in the room for the folks that bent out of shape about the improper flag-flying is what about what Mr. Broussard did. I am not license to practice in Nevada, but the State's online code reveals that Mr. Broussard could be charged with the following crimes:

- Criminal Trespass (Nev. Rev. Stat. 207.200: “any person who, under circumstances not amounting to a burglary … goes upon the land or into any building of another with intent to vex or annoy the owner or occupant thereof, or to commit any unlawful act.”)

- Assault (Nev. Rev. Stat. 200.471: “Assault means intentionally placing another person in reasonable apprehension of immediate bodily harm.”)

- Theft (Nev. Rev. Stat. 205.0832: “a person commits theft if, without lawful authority, he knowingly … [c]ontrols any property of another person with the intent to deprive that person of the property.”)

- Drawing a Deadly Weapon in a Threatening Manner (Nev. Rev. Stat. 202.320: “a person having, carrying or procuring from another person any dirk, dirk-knife, sword, sword cane, pistol, gun or other deadly weapon, who, in the presence of two or more persons, draws or exhibits any of such deadly weapons in a rude, angry or threatening manner not in necessary self-defense, or who in any manner unlawfully uses that weapon in any fight or quarrel, is guilty of a misdemeanor.”)

- Armed Robbery (Nev. Rev. Stat. 200.380: “Robbery is the unlawful taking of personal property from the person of another, or in his presence, against his will, by means of force or violence or fear of injury, immediate or future, to his person or property, or the person or property of a member of his family, or of anyone in his company at the time of the robbery. A taking is by means of force or fear if force or fear is used to: (a) Obtain or retain possession of the property; or (b) Prevent or overcome resistance to the taking. … The degree of force used is immaterial if it is used to compel acquiescence to the taking of or escaping with the property.”)

- Burglary (Nev. Rev. Stat. 205.060: “A person who, by day or night, enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, vehicle, vehicle trailer, semitrailer or house trailer, airplane, glider, boat or railroad car, with the intent to commit grand or petit larceny, assault or battery on any person or any felony, or to obtain money or property by false pretenses, is guilty of burglary.”)

Those last two are felonies and carry a lot of prison time. They are no joke, but most of the folks that are so caught up with the "let's enforce the law" line, seem only concerned about that in as far as the immigration law is concerned. Moreover, nowhere has it been reported (other than through sheer assumption) that the folks who owned the bar/flag are undocumented aliens. Reading the web chatter reveals that everyone who hates what the bar owner did has already jumped to that conclusion. Whether or not the bar owner is/isn't illegal is irrelevant in my mind. More importantly, the First Amendment draws no distinction between citizens and non-citizens in the First Amendment. (Check the language here.)

Bottom line: the whiners here are mad because these uppity Mexicans had the gall to disrespect America on our home court. Too bad, so sad. You don't have to like what I say or what I think, but part of living in America is not being able to silence those folks who you don't like. Our forefathers thought that was so important, they listed it first. Get over it. You don't like the fact that not everyone is going to line up and salute the flag? Move to a compound in Idaho. The rest of us can sigh, roll our eyes, or hey, use your right to free speech to show how ridiculous the opposing point of view is.

Friends with Salad ..... Secrets

- Last Monday, I found myself rooting for the Cowboys' Nick Folk to make a last-second 52-yard kick in their game against the Buffalo Bills. He made it, propelling my fantasy team to a 4-1 record. They'll sniff me out when I go back to South Philly for sure. I feel so dirty.



- I put mayonnaise on my cheesesteak. For the record, it is not offensive to put ketchup on there, so I don't think that merits any particular confession. (Although the picture above is a Pat's Steak, let me just say for the record that my preference is for Geno's. But since Joey Vento, owner of Geno's, is a Confederate-Flag-Loving, anti-Mexican bastard, he gets no picture above. He does get his pic from when Rudy Giuliani came to town to pander to the racist vote.

And if you take away the Geno's hot sauce, it's Pat's in a runaway. Especially because their steaks aren't served with a side of "No Mexicans Need Apply".)

- Your host from YDMFWS will be portraying Carl Brutananadilewski this Skankoween.

Frickin' awesome!!!!!

The Anatomy of a Traffic Stop, The Attitude Test & Quick-Draw Officers

You may have heard of the attitude test that police officers use to determine whether or not they are going to arrest someone, ticket them, issue a warning, or simply speak to a person. There are no hard and fast rules to the test, but it basically works like this: be nice, be respectful, say "yes, sir" and "no, sir" where appropriate, and you will likely walk away with minimal damage. This obviously doesn't work out very well when you've got a dead body in your trunk, but hopefully, for most of you generally law-abiding citizens out there, this shouldn't be a problem.

God help you if you get stopped for doing 70 on Mopac, though. This week, the APD's new chief issued some bold statements about the kind of cop attitude problems than many citizens are more than familiar with. Chief Acevedo pointed to the video of this encounter with the law as an example of what not to do. Basically, the officer requests the driver's driver's license and proof of insurance 3 times, orders him out of the car when he protests, and then hits him with the Taser once he's out of the car. As the officer waits for backup, the motorist lays on the ground and tells him (I'm sure Cpl. O'Connor would characterize it in a menacing tone): "I'm sorry you have to work on Thanksgiving."

Perhaps as part of Acevedo's attempts to be more transparent (especially when his white officers are out there Tasering black folks at the drop of a hat), the transcript of O'Connor's interview with Internal Affairs has also been made available. The investigators seem to be a little suspicious of some of O'Connor's justifications (but in the end found no wrongdoing on his part). Some random observations:
- The call O'Connor was on his way to was a 911 hangup. In the Family Violence court, this is a big sign of a serious emergency (someone could be interfering with another's attempt to call 911), but 5 mph over the limit on Mopac (where drivers frequently go 10-15 over) takes precedence?
- O'Connor had no backup (or at least didn't think he did). This goes in his favor, I will admit, but I'm not sure that this rises to the level of justifying what decisions he made. APD needs to staff better on holidays, even taking into account that cops, like other folks, might be more likely to call in sick on those days (assuming they can; I have no idea if this practice is prohibited).
- O'Connor's training lead him to believe that a propped up Texas plate in the back window was a sign of a stolen car. He could have run the plate while behind the car or after seeing it on approaching the driver's side window, but the video tape shows he did not. I would think if this was his suspicion, he would have done it sooner in the stop, perhaps before making contact. That information could support (or not support) the attitude he put on when making contact with the driver.
- The officer told Internal Affairs that he didn't want to be standing there on the shoulder. But he seemed OK with having the suspect laying there.
- The officer waffles when asked if he acts like this on the majority of his traffic stops (what he characterized as being "very direct"). He said "I don't know". You don't know how you act, or you don't want to put on the record that you're a jerk on every stop? You mean with all your specialized training and years of experience as a police officer you can't recall how you act when you conduct one of your hundreds or thousands of traffic stops? Really?
- "I thought he'd pushed the door back towards me." Nope, it's clear from the video that you opened the door and got him out. The video does not reflect your version, sir. It shows you pushing the door and the door hitting him, Cpl. O'Connor (See p. 13 of transcript). The driver reacts and you Tase him.
- Throughout the interview, there's a lot of military terminology thrown around when talking about the cops ("your troops" referring the officers under Cpl. O'Connor's command). This makes me a bit uncomfortable. They're not fighting a war on citizens out here; they're supposed to protect citizens. Encouraging the mentality that there's some sort of war on the public on doesn't sit well with me. Probably because we are talking about police brutality here.

Even cooler, we have access to Corporal O'Connor's written objection to his Temporary Suspension ordered after the investigation. Something tells me someone with a law degree besides Cpl. O'Connor (perhaps at the Austin Police Association) helped craft this response, as it cites to Draper v. Reynolds, a Texas Court of Appeals case that governs the justified use of a Taser on a motorist. The officer points out the actions of the motorist that he suggests justified the use of the Taser (driving a vehicle without visible plates, passing a marked police vehicle over the speed limit, not leaving Mopac when pulled over, refusing to comply with repeated requests for DL/Insurance (that's 3x for the record), acting "verbally aggressive and making movements towards [O'Connor] that led [him] to reasonably believe that [his] safety was in danger"). This is the crown jewel though: "Mr. Snelling's actions were clearly not those of a law abiding citizen. Instead, these actions had the markings of a possible fugitive or felon."I think anyone watching the video would probably reach the opposite conclusion. To wit:
- If the officer was so concerned about his safety, why did he stand closely to traffic while he waited for backup?
-Why didn't he approach the car from the passenger side?
- What was the speed of the other traffic on Mopac at the time? Was Snelling's car traveling significantly faster than the rest of traffic?
- Where was the nearest exit on Mopac? (Hint: not for another 1.5 miles at the exit for the Southwest Parkway. Do you honestly believe Cpl. O'Connor would have testified that the car continuing for another mile or so on Mopac without noting that this was suspicious??? This is a common tactic of officers on the stand. They testify in a way that whatever the suspect would have done in a certain situation would have been suspicious or supports the suspicion of criminal activity.)
- What about Snelling's behavior was "aggressive and agitated"? The officer claims that Snelling moved towards him as if he was going to push him into traffic; my viewing of the video does not support that conclusion. Instead, the officer seems to be the aggressive and agitated (by his own admission) one. He draws his Taser 15-20 seconds into the stop and opens the car door to pull the driver into what he has already said was an unsafe position. If it was so unsafe, why the hell would you Taser him 2 feet from oncoming traffic????
- Whether or not the officer's belief was reasonable is not a matter for him to attest to. It's a conclusion based on the facts, not a fact itself. Clearly, his own Chief doesn't think it was reasonable, neither did the interim Chief, Cathy Ellison, neither do the police who are now apologizing for another officer's use of the Taser.
- O'Connor objects that because display of the Taser is not addressed in the Department's Use of Force policy, his display of the Taser should not be considered. Well, that's fine in theory, but it seems like folks don't think it was appropriate even if there was no written policy, and that should be considered in the totality of the circumstances.
- O'Connor insists that we should deal with realities and not hypotheticals, but all of his suppositions about what could have happened are just that. Hypotheticals!!! Snelling was not a fugitive or felon, and it's not clear that he even has a record. All your justifications for abusing a traffic violation suspect are just possibilities. The reality is that there are plenty of ways that people who are not cops can see would have been better ways to handle this situation instead of making it into a national spectacle.
- The officer also justified his behavior with reference to the fact that he had not eaten since the morning (5 or 6 hours before) and not eating causes him to become "a little edgy." So he was grumpy and hungry, and that's why he's yanking folks out of cars for a ridiculously common speeding violation and Tasering them??? I've got to believe that if I assaulted a cop and offered this as my defense, every jury from El Paso to Beaumont would max me out in a heartbeat.

In my mind the proof is in the pudding, not whether the Chief thinks cadets and officers are "responding" well to the video. Are we going to see fewer officers with chips on their shoulders, with short tempers, with the obvious intent at escalating the tension in roadside encounters? It comes down to bad judgment, something this officer seems to have in spades. APD can replace leadership, it can write new policies, it can issue PR statements that show how it's improving relationships with minority communities, it can have officers apologize for other officers' bad behavior, but at the end of the day, you have to do something about officers who just don't get it. APD and the City have to be willing to take the heat from the Police Union and remove guys like this who are just bullies with badges and guns and stop slapping them on the wrist with 3 day suspensions. There are plenty of good cops at APD; I work with them almost every day and am happy to know them on a semi-personal level. But there are too many jerks like O'Connor patrolling our streets.