Osler's Razor

I was raised to love the last light of day.

My dad is an artist; by that I don't just mean that it is his vocation, but that it is in his heart. He sees the world as a collage of light and color, a riot of beauty. Like many people who see the world that way, he is drawn to long shadows and the soft light of the end of the day. On a trip, we might stop for a moment so he could take a picture or just see it. Now I do that sometimes.

We are drawn to boundaries: the beach, for example, the boundary between the land and sea. Dusk is like that, too, the boundary between the known and seen and the unknown and shrouded.

That last light calms my heart. It is my favorite time of day. Like most things that we love, I can't say exactly why.

Part of it, though, is that last light takes away harshness and reveals the beauty in things-- puts forward the simple line and color that is the essence of a tree or a face or the curve of a path.

At its best, faith does that for some of us, sometimes. It lets us see the best in the world, and transforms the mundane into the beautiful. It creates a warmth that was not there. It allows for shadows, and the unknown, even while revealing truths. It suffuses all. And, maybe best of all, we know it will be there tomorrow.

You know, I do love the Waffle House...

When I hear people talk about politics, so much of it seems to be about personality or personal characteristics: They like a candidate because they are strong, or compassionate, or experienced or not. It is much rarer to hear from people who care about an issue or set of issues. (The Green Momster, with her focus on environmental issues, is an exception).

I really find myself caring deeply only about two issues, clemency (good) and war (bad). I'm not excited about either candidate in relation to those issues, either. Sigh.

So what are the important issues? Which ones do you care about in this election cycle, and how do the candidates speak to them?

If you didn't  see Michelle Obama's wonderful speech at the DNC, you should:



I have long thought that Michelle Obama is a rare and impressive first lady, and this only adds to her legacy. I have been no fan of either campaign, but this was a bright moment in a dark season.

Michelle Obama gave a great speech at the Democratic Convention last night. It might not help Hillary Clinton much, but it sure made me appreciate this First Lady.

Meanwhile, the Washington Post reported some horrible poll numbers for Hillary Clinton yesterday, just as the  convention began:

-- 68% of Americans feel she isn't "honest and trustworthy"
-- 31% of Americans have a positive view of her; 56% have an unfavorable view
-- Only 38% say they would be "proud" to have her as president
-- Less than half of the Democrats who voted in the primary say today they prefer Clinton as the candidate of their party.

Wow. And what is really depressing is two reactions I hear in response to numbers like these:

1) But Trump would be a horrible president! 


I hear this over and over again. It's a terrible statement about Hillary Clinton and the campaign she has waged.

2) It's just the "bump" from the Republican Convention

From that convention??? How could that have given anyone a bump?

It's going to be a very strange election...

Here was the Medievalist's haiku from last week:

I am still a fan,
Of the Minnesota Twins,
Five hundred losses.

I call his superpower: Loyalty!

Here was Seraphim's, which might need a little interpretation:

Mine: solving problems!
Here is how you do it: just
Say it was your fault.

I'm assuming that Seraphim means to take the blame yourself instead of blaming others. If so, I call this superpower: Selflessness!

And Amy's:

Evidently, I
Know how to get anywhere.
Been asked directions

Just by standing still,
In India, Switzerland—
Must give “Ask me” vibes . . .

I call this Superpower: Approachability!

Here was NotNoel's:

I'm very relaxed.
My superpower: I can
sleep through anything

I call this Superpower: Relaxidividity!

This was Christine's:

Soil, seed, water, sun
What's your superpower?
I'm a gardener

I call this superpower: Oh, you did that already, right in the poem.

And I saw, and behold a white horse: and he that sat on him had a bow; and a crown was given unto him: and he went forth conquering, and to conquer.

And when he had opened the second seal, I heard the second beast say, Come and see.

I am back in Minnesota after a week of meetings and work in DC and NYC-- it was very productive! But now I get to go back in my office and write some more. For the most part, I am working on a long article (I already am up to 10,000 words) on clemency that develops the themes from this NY Times op-ed and this longer piece for the Federal Sentencing Reporter. I care about this stuff, and when I write there is a lot of stomping around my office gesticulating to the wall and muttering. That's how I work it all through.

Meanwhile, Doug Berman kindly let me guest post over at his blog this week, about a public comment I submitted to the Federal Sentencing Commission about drug sentencing. You can read the comment here. Doug also referred to me as a "federal sentencing reform guru," which is an overstatement-- and anyways, of late I have been shooting for "clemency reform swami." But the two are related, of course... it is the failure of the narcotics sentencing system that has in large part created the urgent need for a broad use of clemency.

The problem with conventional superpowers is that they are just to common. Invisibility? Every six year old can do that. Flying? We have pretty much conquered that one as a society-- you can fly to most major cities.

Still, there are superpowers in short supply. Patience, for example. Or sensible design of bathroom fixtures (that, for example, might indicate to a reasonable person what they need to do to get hot water).

Let's haiku this week about our own superpowers, or perhaps the ones we wish that we had.

Here, I will go first:

My superpower? I can
Guess a time of arrival.
Really, quite handy!

Now it is your turn! Just use the 5/7/5 syllable recipe, and have some fun!

Also, does singing in the car count as a superpower?

A few days ago, IPLawGuy posted this in the comments (in response to a question about the selection of Spence as VP nominee:

It was a safe pick going into the Convention. It quelled the crazies. Pence has...

Wait.... I really am past the point of trying to analyze this with any objectivity. Trump is an ignorant megalomaniac with no understanding of government, politics, diplomacy or economics. And a threat to the Nation if not the world. The GOP has been run by crazies for a while now, but now they're totally nuts.

This whole thing is an embarrassment. I really am just totally shocked that this is happening. I would never have voted for Cruz, but his crazy is garden variety. And Rubio is just an empty suit of ambition. But I think he had a general understanding of what the job of President entails.

So, yeah Sure, Pence was the best choice for Trump. But wow, this whole thing is really depressing.

Clearly, Mr. LawGuy has just about had it with the campaign as a whole. Does anyone else agree? Or do we need to stay engaged? If so, why?

Good job, everyone! And who doesn't agree with the Medievalist:

Twenty seventeen,
No bombs, no deaths, no killing,
Hopeless dreamer I.

Well, ISIS, I guess. But the rest of us are with you.

Mrs. Kontos said it a different way:

"What's funny about
Peace, Love and Understanding?"
Friends, we need it NOW!

Sometimes in the summer, I ride my bike into work. On Friday I did, in fact, and it was glorious. I go up quiet streets, then around Lake Calhoun, to a tree-shaded trail and then over some prairie, then when the white stone of Target Field is right in front of me I take a right and go a few blocks to my school.

That day, on the way home, I stopped a bunch of times to play Pokemon Go. It turns out there are a lot of Pokemon on the shores of Lake Calhoun, so that took a while.

As I glided down the big hill on 56th, I thought about the game. You are supposed to "catch them all," but no one really does. Some people catch a lot, though-- they race from place to place, grabbing what they can, celebrating, then moving on. Others catch a few and then grow them up, a slow and lengthy process. A lot of people don't really figure out how it works and give up pretty fast, then make fun of the people who are playing.

It's tempting to say that "I know people who treat their lives like that, either dashing from one thing to another, or limiting themselves, or giving up," but the truth is that at one point or another I have been all of those. Sometimes just trying to gather up experiences or things, other times avoiding the world to focus on something intently, and too often just giving up.

I wish that there was a version of Pokemon Go without the Pokemon. You would walk to a spot, and there would be a bird, or an old house or a good strong bridge. And that would be enough.

Earlier this week, Bob Darden wrote a great piece for the Dallas Morning News on the song "We Shall Overcome." (You can read the whole thing here).  My favorite part is this, tracing the origins of the song:

The song combines bits of the old Baptist hymn "I'll Be Alright" and C. A. Tindley's "I'll Overcome Someday" among others. Zilphia Horton of the famed Highlander Folk School of Tennessee said she first heard the patchworked song sung by striking North Carolina tobacco workers in the 1940s. Legendary folk singer Pete Seeger is widely credited with changing the title to "We Shall Overcome" as it was taught to each new generation of Highlander attendees. Rosa Parks, John Lewis and Martin Luther King Jr. are among those who heard it at Highlander. Returning home from Highlander's 25th anniversary in 1957, King told Anne Braden and Ralph Abernathy, "There's something about that song that haunts you."

You gotta love this bumper sticker-- it seems to sum up the Waco Farmer's view on the election coming up this fall (and a lot of other people's, too).  I don't think we will get "Giant Meteor 2016," however, and that is pretty good.

This driver obviously has a secret wish-- well maybe not so secret, given the bumper sticker-- and most of us have one at some level of secrecy.

Let's haiku about that this week: The secret hopes that we might have.

Here, I will go first:

Maybe this airplane
Takes me to a place unknown
A world to explore.

Now it is your turn! Just use the 5/7/5 formula and have some fun!

It's coming down to the end here-- Donald Trump has said that he will pick his running mate by Friday. Who do you think he should choose? The top contenders are described below:

1) Mike Pence, Governor of Indiana










Pence seems to be the front runner, given the amount of time he has spent with Trump of late.
Pros: Governmental experience, good campaigner
Cons: Pretty unpopular in Indiana right now, not well known

2) Drowzee

















Apparently, Trump and his family had dinner and drinks with Drowzee last week.
Pros: Well-recognized, popular with Pokemon Go voters
Con: Often mistaken for Newt Gingrich (see below), doesn't wear a shirt.

3) Newt Gingrich
















Gingrich has long been rumored to be a top candidate for VP.
Pros: Proven record of success in House, willing to play attack dog
Cons: His rap CD was terrible, doesn't wear a shirt in the summer.

4) Neil Young




















I think they are getting along again.
Pros: Well-known, delivers Crosby, Stills, and Nash's votes (3 more than Pence)
Con: Canadian, poor relations with Congress

5) Chris Christie













Christie was an early and fervent supporter of Trump once the nomination looked certain
Pros: Knows Bruce Springsteen
Con: Springsteen doesn't like him very much

So-- what am I missing?

In about six weeks (on August 26) my new book about performing the Trial of Jesus will come out. It's exciting and scary, in a way. Because it is a memoir, there is a vulnerability to the experience of publishing it that I am not used to. If you would like, you can pre-order the book now.

Many people who are found here are also found in the book: Sara Sommervold, Joy Tull, Jeanne Bishop, David Best, IPLawGuy, CraigA, Dr. Joanne Braxton, Kent McKeever, Bob and Mary Darden, Ron and Abby Rapoport, Susan Stabile, Jerry Organ, Randall O'Brien, and many others.

The book covers a lot of territory, literally-- we did the trial in 11 states, after all. 

I am hoping to talk about the book once it is out, so if you are interested in having me come to your school or church, drop me a line at mark.osler@stthomas.edu!

Renee was a haiku star:

These countless silver
Poppies over my head in
Washington's desert

Night...I forget to
Breathe. I am miniscule.You
Are out there after all.

And Megan Willome:

The same stars here as
there, always brighter when the
moon is new and dark.

And the one I am pondering still is from the Medievalist... is that a Minnesota reference?

it's night-time on earth,
Stars twinkle in the distance,
Frost falls on my heart.

A lot has been written about the events of this week, none of it by me. I am still sorting it all out in my head.

Even when I do that, one simple truth will apply: I'm not a police officer, and I'm not black. No one is going to kill me because I am one or the other.  That doesn't mean I don't have or deserve a voice in our national and local debates over race; it just means that my perspective is not from a position of being endangered.

Instead of adding my thoughts today, I offer something I am re-printing something by Robert Callahan, one of my former students at Baylor. He is someone I truly admire, and have since he was a student.  He is someone who takes his faith, his work, and his family seriously  It is deeply fulfilling to me to learn from my students, as I so often do. The words that follow are his, not mine:

I don't talk seriously about race much because our culture is burned out on it. Somehow we've departed from "I have a dream" to "I don't wanna' hear it". So I'm judicious in my discussions of race. I use it sparingly so that when I do, it will count. Now I feel compelled to.

I grew up in a time & place where it was not socially acceptable to be black. If you wanted to see a movie with a black actor, you drove 45 minutes away to the St. Vincent Mall b/c that was the "black" mall. Pierre Bossier Mall was the "white" mall & only played "white" movies.

Teachers spoke down to me. Students used the N word in front of other students & teachers with impunity. One sweltering Louisiana summer day, I waited outside a friend's house, drinking from a hose while all my other friends took turns using the bathroom & getting water inside because my friend's daddy didn't want N*****s sitting on his toilet. When I was about 8, I recall running out of a restaurant screaming I didn't want to be black because my little heart couldn't take it anymore. It was hell.

Regardless, I was a military brat, so as we moved I learned to adapt. Evolve. Adjust. Blend in. By the time I went to college in the North, I thought racism wouldn't follow me.
I discovered I was wrong every time I drove through Idaho. One night, Rick Steadman, & others were with me as we left a carnival & I was "asked" to step out of a car by four officers at gun point because I fit the vague description of an escaped convict: black. No lie. I thought I was going to die that night. We all drove home silent; in tears.

Now I am married to a beautiful, white woman. We have beautiful children. When we married, I had to turn my back on *my* family that didn't support our interracial marriage because I clung to hem of my belief in God's sovereignty more than the opinions of man.

We teach our children the values of truth, righteousness, & justice in a fallen world. One day we will teach them not to frequent certain places at certain times of night. Likewise, we'll teach them how to interact w/ law enforcement officers during a traffic stop. That's our reality.

Even still, what happened in our nation this week was a travesty. We began with a glimmer of hope that we could begin talking about race intelligently that was lost when anger & ignorance took down our protectors.

Anger. Fear. Division. We scoffed in the '90's when black artists & leaders warned that the portrayal of African-Americans as "thugs" or "silly" in entertainment media was dangerous. Yet, the bible tells us that faith comes by hearing. The seeds of division have been planted & matured to fruition. Now we are reaping a harvest grown from the casual glorification of thug culture & the honest fear of onlookers who think that's really who we are.

Now, it seems that we're all separated across a racial chasm as deep as our nation's sordid history on race relations. Reading the Facebook posts of so many, It would seem as though I have to pick a side: "Are you for Police Officers or Black People?" It's that simple. Just like that, racism is En Vogue again.

The pendulum has swung back to the place where those ignorant brats I grew up with have become community leaders, & have an excuse to openly use the N word with impunity again. I'm afraid of where we are as a nation.

Get this through your head: there is a conversation to be had here. That requires honesty & vulnerability. It means shutting up & TRYING to hear what the other person is trying to say. People are hurting. LISTEN!

We don't have to be exclusively, blindly, pro-law enforcement or pro-minority to regain our conscience, our moral compass, or our identity as a nation. I refuse to participate in this debate between whose life does & doesn't matter which is fueled by our outrage, ignorance, biases, & prejudices.

Treat people the way you want to be treated. If you call yourself a Christian, read your bible. See what God has to say about the poor, the widow, the orphan, & the oppressed. Ask how what's actually coming out of the politician's mouth squares with what the bible says about those topics. Don't rush to judgment until you have all the facts. These are the basics. No one should have to remind us of these fundamental lessons in humanity. Even still, least we forget:

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness..."

This week, there were three horribly sad news stories in the news here. In chronological order:

1) The killing of Phlandro Castile near St. Paul: http://www.startribune.com/philando-castile-had-permit-to-carry-gun/386054481/

2) The killing of five police officers (and wounding of seven others) in Dallas: http://www.startribune.com/dallas-police-chief-negotiations-underway-at-parking-garage/385964341/

3) The shooting of two toddlers in Minneapolis: http://www.startribune.com/report-two-infants-shot-in-north-minneapolis/386043241/

How does any of this make sense?

What a strange and sad week. The police shooting of Philandro Castile here (and now the shooting of police in Dallas) has cast a pall over the area, as it should. I will write about that over the weekend.

For now, though, we should haiku. It is the heart of the summer; we have crossed that bend in the road that is the 4th of July, when this season turns from luscious potential to fleeting reality (at least in Minnesota).

In the summer, I see stars. In part it is because I am outside more, and more often in places away from the city. Night comes late and deep.

Let's haiku about the stars-- your favorite, a memory, perhaps even your wish upon a star. Here, I will go first:

I pointed up high:
"See that constellation there?
It is Mister Ed."

That's a true story. I said that to Sleepy Walleye many years ago, and I think he agreed with me-- it did look like Mr. Ed.

Now it is your turn! Just use the 5/7/5 syllable plan, and have some fun!

Many followers of the Razor have, at one time or another, sat in my Criminal Practice class. It is the first class I ever taught, and my favorite-- it is the class that I wish I had taken in law school, the one that lays out how things really work (or at least that is my intent).

The class focuses on a few important things, including the respective roles of investigators and prosecutors and the importance of the elements of a crime.


Let's talk about elements first. In the investigation of Hillary Clinton's emails, one of the statutes in play was 18 USC 1924, which reads as follows:

(a) Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than one year, or both.
(b) For purposes of this section, the provision of documents and materials to the Congress shall not constitute an offense under subsection (a).
(c) In this section, the term “classified information of the United States” means information originated, owned, or possessed by the United States Government concerning the national defense or foreign relations of the United States that has been determined pursuant to law or Executive order to require protection against unauthorized disclosure in the interests of national security.

Based on the things FBI Director Jim Comey (who was a classmate of IPLawGuy at William and Mary) said this week, it seems that a good argument can be made that the elements of this crime were met. Clinton was an employee of the United States. By virtue of her office she possessed documents. These documents contained classified information (almost by definition-- remember that any Secretary of State is going to generate  as well as receive classified documents that she knows contain sensitive information, given that so much of her job involves state secrets). She removed these documents to a server at her home. Her home server was not an authorized location for those documents.  She intended to retain those documents there.

Right?  So the elements seem to be met.

Now let's talk about investigators and prosecutors. Admittedly, Comey is a lawyer, a former prosecutor, and a former Deputy Attorney General. However, his role here was as an investigator.

Both an investigator and a prosecutor have lots of discretion. The investigator has the discretion not to refer a case to the prosecutor-- that is, they can just drop it.  The prosecutor, if they get the case, can choose to charge it or not. (The charge above is a misdemeanor, and would not need to go to a Grand Jury).

Usually, unless there are compelling circumstances or the case is very minor, investigators are expected to present a case to the prosecutor if there is good evidence on each element. The prosecutor then decides if the case is worth pursuing, and evaluates the proof on each element. That did not happen here.

The usual process was subverted in large part because the Attorney General recused herself and announcing that she would defer to whatever the investigators decided. Thus, the investigator did not leave it up to the prosecutor to decide if the elements were met and the case worthy; instead, he decided that "any reasonable prosecutor" would have declined the case, and then did not present it for prosecution. Lynch then closed the case.

I think he should have handed the file over to prosecutors to make the determination of whether or not the elements were met and prosecution was warranted.With Lynch recused, he could have gone to the US Attorney in New York.

One factor that merits more analysis, and appears to have been central to the decision Comey made, is that no comparable case exists-- prior cases involved people carrying hard-form data out of an office. That reflects a static analysis that doesn't take into account the way that people use data now. You don't carry home a floppy disk-- you email things to yourself, an act that seems to constitute "removing documents." The law cannot look for guidance to a different technological era in a case involving modern technology; we have to look at how things are now. I am not sure that happened here.

Last friday, Jill Scoggins chose to go off-topic and haiku about Pat Summitt:

A she-ro to me.
Made playing “like a girl” mean
like just playing.

A champion among
champions. The game was
the thing, not winning.

But win she did. Teams
of bright faces, ponytails
bobbing on the court.

A teacher, she taught
us that fierce competition
can be female.

A she-ro to all.
Forever a winner She's
the Summitt always.

She was right to do so-- and Summitt was the kind of American hero that makes me thankful every 4th of July.

Church-going Christians often chastise or make fun of those who say they are "Spiritual, but not religious," but I don't get the point of it. I am not among the ranks of people who describe themselves as spiritual but not religious (I am a church-goer who has no problem saying I am religious), but it seems like there is an openness and honesty in the "Spiritual but not religious" camp that I often admire.

Most of the people I run into who describe themselves that way have been actively driven away from the church by people I think of as "Devangelists"-- that is, those who feel it necessary to define people out of the faith, and hound them about their doubts or ideas that may not be orthodox.  They are the opposite of evangelists; they steer people away from church. Of late, devangelists have been far more successful than evangelists.

But, often, those attacked are driven from church, but not away from faith. Over and over, I have found people who were devangelized out of church, but still believe in God. They are spiritual, but not religious.

I wish that they would try a different church, one that would love them-- such places exist. But often they have been burned too badly and have lost their faith in church people. I understand that. Believe me, I have run into my fair share of devangelists myself, who are intent on convincing me that the heart of Christianity is, for example, the stigmatization of gay men and lesbians, or that "religious liberty" to do so must be a priority. It makes me not want to go to church.

At the moment, my belief in God is strong. My belief in church and institutional Christianity is weak, battered by disappointments.  I will not be among those chastising the "spiritual but not religious" crowd, because my heart lays close to theirs.

I love the Olympics, winter and summer. There is something about the messiness of it that appeals to me in part-- the controversies, the odd nations cropping up in unexpected places, and the sports that seem to have cropped up suddenly.

As has been discussed here before, though, this year might be a little TOO messy. Rio is kind of a disaster, between Zika, financial struggles, incomplete venues, doping scandals, and polluted venues.

The weird thing is that I have heard very little about the Olympics, which are now about a month away. What's up with that? Shouldn't we be starting to see the ads and learning the backstories? Will this thing even happen?