Osler's Razor

Tuesday was yet another fascinating day of primaries. Here were some of the highlights:

1) In Florida, two very different candidates emerged with upset victories. The Democrat, Tallahassee Mayor Andrew Gillum, ran from the Bernie Sanders wing of the party and won over four active opponents-- despite polling in 4th place fairly recently. On the other side of the fence, Republican Ron DeSantis ran as an ardent Trump supporter (and almost immediately created controversy by making a racist comment on Fox News). This is one general election that will provide a very stark choice.

2)  In Arizona, Martha McSally won the Republican nomination for Senate, seeking the seat vacated by Jeff Flake. McSally was seemingly the most moderate of the candidates (albeit, one of her opponents was Sheriff Joe Arpaio, who was trounced). Arizona is a state with quickly changing demographics, and the races there will be fascinating to watch in November.

Meanwhile, the State Fair has been running here in Minnesota (I plan to head over there on Monday). Two people-- neither of them ardent Democrats-- have described walking into the Republican tent at the Fair as "a visit to the nursing home." And that does not bode well for Republicans.

I suppose that sounds like a dig at the Republicans, but it reflects a truth: if they only care about the votes of older white males, they are going to stultify and lose-- and will deserve to do so. We need two vibrant parties in this country which appeal to a broad cross-section of the electorate. It seems that we are moving away from that at the moment.

In September, 2017, two huge hurricanes-- Irma and Maria-- hit Puerto Rico. The scene was horrifying, but the death toll was surprisingly small: The official tally was 64 dead. It turns out, though, that the actual number is probably closer to 3,000.

How could the reported number be so wrong? A lot of the problem, it seems, had to do with the way deaths were recorded-- that is, the cause of death did not reflect a relationship to the storm. Some might suspect political motives played a role, though there does not seem to be much real evidence of that.

One thing this brings to the surface is how hard it can be to measure things that appear simple. We often promote the use of data, but too rarely talk about the value of data and the problems with collection and analysis.

In my own field, we see this in sentencing all the time. Someone's criminal history (their prior convictions) should be simple to determine-- there is a computer database, right? Well, of course there is. And people rely on it all the time. And it is often wrong, with disastrous consequences. It is wrong because people put in the wrong numbers or code when they log in a conviction, or records are incomplete. Some jurisdictions are good and some are bad. Often the people who do the data entry are low-paid clerks for whom crucial distinctions are insignificant. What's the difference between probation and deferred adjudication, after all? A lot, in subsequent sentencings.

We want certainty. We want data to tell us what is what. But, in many areas, we are not there yet. If we over-rely on data, we risk determining freedom by false measures. That is injustice, as much as it is by any other route.

Yesterday was my first day of class, and it was great.

This semester, I am teaching my clinic and a lecture class on sentencing. I love them both, and have a great batch of students.  A few observations:

-- With each year, I become more grateful for this job, and the place I get to do it.

-- For some reason, I end up with a lot of students in my classes from South Dakota (see above), but not that many from North Dakota (notable exception: Razor haiku legend Gavin).

-- Every year, I get assigned to have class in one room and move it to another. I'm picky that way.

-- For some reason, I'm always a little surprised that the new year is starting up again. I mean.. it's on the calendar and all, but it still sneaks up on me.

-- I find that classes are both a great respite from, and a productive way to engage with, the news cycle.

Today is my first day of class. And the Medievalist had a poem for my own heart on Friday:

Brand new eraser,
Unsmudged, untouched by lead,
Soft green and spongy.

John McCain died yesterday, after a lifetime of public service.

A lot of what I know about John McCain comes through my friend IPLawGuy, who worked for McCain in the Senate for several years. That's them pictured above in... well, let's just say the mid-80's.  [Note that for some reason, IPLG seems to be presenting McCain with a copy of Alex Haley's groundbreaking book Roots]. IPLawGuy guest-blogged about McCain during the 2008 election-- you can see that here. It's fair to say, I think, that McCain was an important mentor to IPLG, and the best kind of mentor as well.

Though I voted for Obama, I thought that 2008 offered the best pair of candidates in my lifetime (I wrote about that here), and that McCain had some remarkable high points during that campaign. In the Senate, he had moments of remarkable principle, and he seemed to be genuinely respected among his peers.

In the end, though, the sacrifice that thrust him into the spotlight might be what is most memorable. He was from a Navy family; his father was a famous naval officer. In Vietnam, McCain was a prisoner of war in terrible conditions, after his plane was shot down. The North Vietnamese, in deference to his father's position, offered to release him. He refused, unless they agreed to release the other POW's. 

That's a singular and remarkable sacrifice. We have not seen many like him in politics, and we likely never will.

Because, you know...

I love this time of year-- the start of the cycle, for me. And with that comes a new supply of things like pencils and folders; even now, I do that. 

Let's haiku about that this week! Here, I will go first:

A sharpened pencil
Redolent with one true scent
School begins again.

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

As we move ever closer to November, the mid-term elections loom larger than usual this year. That's because of what a new House majority could do: impeach the president. Remember that the Constitution provides a mechanism for trying and removing high officials: They are charged (or "impeached") by the House, and then tried in Senate. It takes a simple majority to charge an official in the House, but 2/3rds of the Senate to convict. 2/3rds is a tough standard.

That means that it the House flips, it could well vote to impeach the president, particularly if the Mueller report recommends that course and is made available to the House by Deputy Attorney General Rod Rosenstein.

Here is one scenario that many people are thinking through:

-- The House flips in November
-- Robert Mueller issues a report recommending impeachment
-- Rod Rosenstein forwards the report to the House for their consideration
-- The House investigates, then votes to impeach
-- At trial in the Senate, a majority of senators but fewer than 2/3rds vote to convict, meaning that no conviction is obtained.
-- In the 2020 election, President Trump turns this to his advantage, asserting that he was persecuted and survived.

Given that... the Democrats may not choose to impeach in the first place, even if Mueller says charges are substantiated in his report.

Yesterday, two high-profile convictions came down: Michael Cohen (by plea) and Paul Manafort (by a jury). One question I have been getting regards the Manafort outcome. It turns out that the jury convicted him on 8 charges, and were unable to reach a verdict on the other 10. Here are a few quick observations:

1) Having a hung jury on many counts is not unusual. Because it only takes one juror to create a hung jury, this happens fairly often. It is especially common in more complex cases, where sometimes that holdout juror is hung up on a fact the others are not. It should be said-- sometimes that holdout juror is right, too.

2) The prosecutors can have re-trial on those counts that did not result in a verdict. That happens, sometimes, but other times it does not, either because a deal is worked out or the prosecutors decide it isn't worth it. Once in a while, they realize the holdout was right...

3) At sentencing in federal court, it might not matter that there was not a conviction on those counts. Under the Sentencing Guidelines's doctrine of "relevant conduct," if the judge finds by a probability that the defendant did those things, and it is deemed sufficiently related to the count of conviction, they can become part of the sentencing guidelines calculation.

A friend recommended this video, and he was so right-- it is the best thing ever! The director, Spike Jonze, is the guy in the striped shirt in the middle of the action...

They were all good, but I loved loved loved Jill Scoggins' haiku about Aretha Franklin:

With calm confidence,
she let loose on ‘Divas’ and
showed them how it’s DONE.

Mariah, Celine,
Shania, Gloria, all
were diva posers.

Her voice was bigger,
warmer, sultrier. That stage 
was hers. Hers alone.

The true Diva. The
only one really. Gospel’s
gift: The Queen of Soul.

Because I have spent nearly all my life on the academic cycle, the start of September means the start of the year. Soon I will be surrounded by people I haven't met before, and my routine will change and a new rhythm of life will emerge. It's exciting, to have the start of the year mean such genuine change.

We are built, I think, to have a rhythm, a cycle of change. There are people I know who become restless with their jobs and their lives in a predictable pattern; we can all see it coming. It is like watching a train will itself off the tracks. That can be a good thing, of course, but it can also be disastrous.

Perhaps what a cycle of life-- be it a change of seasons or a new school year-- is give us just enough change that we don't blow everything up out of boredom.

The same is true, for many of us, with our faith lives. We don't walk away in frustration or go join a monastery; rather, there are seasons in our faith, a gentle of certain change in how we see the world. I know that my outlook now is very different than it was ten years ago, and that includes the way that I see God in the world. I have new skin, new bones--all the cells have been replaced-- yet I still have (mostly) the same shape. But not quite. You may not be able to see what is different, but I can feel it just as much as I can feel the joint in a finger in my left hand...

So if you think your apartment is small, check this out! Hong Kong has the highest housing prices in the world, and it isn't because of a lack of land-- it is because of tax policy.

It fascinates me that some many things come back to the way that taxes can incentivize things in a way that physically shape our world.

I saw Aretha Franklin once, but it was memorable. It was 1986; I was 23 years old.  I read she was making a special for Showtime at the Music Hall in Detroit, and headed over there. Clarence Clemens, from Bruce Springsteen's E Street Band was there, and so was Aretha's sister Erma, who had a deep, rich voice. I'm sorry I did not see her again, and now she is gone.

She, like me and Ron Fournier and Keith Ellison and a bunch of other people who left and went back (and left and went back), was from Detroit, and very much of it.  Just this past Sunday, I wrote about driving down Jefferson, singing along to "Say a Little Prayer." I loved the songs where it was easier to hear the church in it.

One of my favorite songs ever was by Aretha's older sister Erma (she died in 2002), who filmed this at the Soup Kitchen bar in Detroit:



With both Franklin sisters (and a third sister, Carolyn), the story always started in the church their father C.L. Franklin (a legend in his own right) pastored, New Bethel in Detroit. In the 1950's, James Cleveland was the organist. It's not surprising they filled up 2,500 seats! Here is James Cleveland:



What comes next? I don't know. But I hope there is singing.

Let's Haiku about Aretha Franklin this morning. Here, I will go first:

Many times in church
Woman stepped up to sing
My hope: Aretha.

Now it is your turn! Just use the 5/7/5 formula and make it good!

Yesterday, 76 people overdosed on the New Haven Green.

There is a lot going on with that story that I would like to unpack.

First, some news stories made it sound like this occurred in some remote park, with people hiding in the woods. That's very wrong-- the New Haven Green is actually a large open space right in the middle of the city, bordered two sides by Yale and on a third by one of the major shopping streets in the city. Two major bus stops are on the Green. You can sit on a bench and literally see the entire thing. It is not remote or hidden.

Second, it appears that what happened here is that someone sold a lot of people bad drugs-- probably synthetic marijuana-- and they used it right there where they bought it. What this did was reveal how many people on that one day were using drugs in that small area (and probably not all of them-- just the ones who bought from that one guy). It's as if pop-up bubbles appeared over the residents of a defined space identifying them as people using narcotics at that moment... and there were a staggering number of pop-up bubbles.

And that brings me to the third, and most important thing: The problem with narcotics in America has a lot more to do with narcotics use than it does with narcotics trafficking. We are a huge consumer of narcotics: in fact, with 5% of the world's population, we use 25% of the illegal narcotics, and consume more illegal narcotics per capita than any other nation. We spend 10 times more on narcotics than we do on going to movies!  The myth is that the trafficking creates the use-- that is, that "pushers" get people addicted. That's ridiculous. There are sellers because there is demand for the narcotics, and the law of markets tells us that so long as there is demand, there will be supply.

People who think that most drug users were drawn into it by drug sellers have not spent much time around either. While, certainly, there are people who first tried drugs because a seller talked them into it, in most instances people try drugs because a friend or a lover talked them into it, or they wanted to in the first place, or because they couldn't get a prescription medication anymore.

Think of it this way: In the real world, do you think drug sellers are going around trying to find buyers, or the buyers are more often trying to find the sellers? It's the latter.

Americans use too many recreational drugs, and there is a cost to that. Some drugs are harmful and some are not so harmful. If we can stop pretending that we can restrict demand simply by temporarily affecting supply, perhaps we can focus on lessening narcotic use, encouraging harm reduction, and making people's lives better.

I am spending this week finishing a new law review article, and am loving the chance to delve into something that makes my mind race. Part of it examines clemency themes in Shakespeare's plays. I know that seems esoteric, but many of the Founding Fathers actually were huge Shakespeare fans-- Jefferson and Adams took a BFF trip to the Bard's boyhood home at Stratford-on-Avon, and Washington attended a performance of The Tempest during the Constitutional Convention. It goes to my central point, which is that the framers intended the pardon power to be an expression of the president's individual nature. It is the soul part of the Constitution, as much of the heart as the mind.

If nothing else, I found moments of great meaning. Measure for Measure, it turns out, is largely about the tension between justice and mercy, and the same theme crops up again and again in his other plays. Here are two passages I really loved.

First, from The Merchant of Venice:


--> The quality of mercy is not strained;
It droppeth as the gentle rain from heaven
Upon the place beneath. It is twice blest;
It blesseth him that gives and him that takes:
‘T is mightiest in the mightiest; it becomes
The throned monarch better than his crown:
His scepter shows the force of temporal power,
The attribute to awe and majesty,
Wherein doth sit the dread and fear of Kings;
But mercy is above this sceptred sway;
It is enthroned in the hearts of kings,
It is an attribute to God himself;
And earthly power doth then show likest God’s 
When mercy seasons justice.
I love that line-- that clemency is "enthroned in the hearts of kings."

And then there is my favorite, near the end of The Tempest (after Prospero, speaking here, has resolved to free the captives of his magic and spare their lives):


--> Though with their high wrongs I am struck to the quick,
Yet with my nobler reason ‘gainst my fury 
Do I take part: the rare action is
In virtue than in vengeance: they being penitent,
The sole drift of my purpose doth extend
Not a frown further. Go release them, Ariel:
My charms I’ll break, their senses I’ll restore, 
And they shall be themselves.
That last line just nails it: that a principled grant of mercy, clemency, can make someone whole, to be themselves as they should be and can be.

How lucky am I , that this is my work?

Yesterday morning I woke up and sent out a tweet saying "What's not important: The fight between Donald Trump and Omarosa. What is important: The $1,000,000,000,000 annual deficits the White House projects for the next three years," with a link to a piece I had in Sunday's Waco Tribune-Herald about that (you can read that piece here).

But... then I thought about it, and deleted the tweet. The discussion that grew up around the Omarosa dispute (now tied to her release of a book that comes out today), I realized, actual is important.

In case you missed all this, Omarosa is a political consultant who became famous as a contestant on Donald Trump's reality show, "The Apprentice." She was on three times, and was fired each time. Moreover, she was famous for her ability to create drama on the show by engaging in power plays, getting into and extending petty disputes with other contestants, and (admittedly) some great one-liners and beautiful clothes. In short, she created a lot of drama. In fact, in the clip above at about 13:40, you can hear boxer Lenox Lewis say something to the effect of "I fought Mike Tyson, but riding in a van with those two [Omarosa and Piers Morgan] was worse." Wow.

The good questions coming up around Omarosa include:

-- Why would the President hire someone who he knew created unnecessary drama?

-- Why is it that the show he produced and starred in had remarkable racial diversity, but his White House has a total dearth of senior-level black staffers (or, for that matter, interns)?

-- How is it that a staffer was able to record conversations in a secure communications facility?

Or am I wrong?

Perhaps none of us pay as much attention to plants as Christine, so of course her haiku was spot-on:

A seed planted, vines
grow long beneath summer skies
nectar of melon

Gavin (like me) spent some time on farms (I drove a pea viner when I was just 16; it was a great job):

I smell the grain dust
It taints the sunset blood red
My mind takes me back

I lounge on the hood
Sun-bronzed arms behind my head
I’m sixteen again

Combines rumble by
All us men bring in the wheat
Like it always was.

And Jill Scoggins has a vision that many Texans have experienced (among others):

South Texas cotton
bolls gathered on roadside look
like snow in the heat.

I grew up surrounded by music. My parents had a great record collection, and there were records stacked up to play all the time. They still do, in updated format; when I'm home, my dad will be painting in the back yard with Ornette Coleman playing.

In college, I had a radio show every week for all four years; my first year, IPLawGuy was the station manager, and I got his attention by remixing songs and I got a show. I loved picking out the music and talking about it-- some of what I said was even true. (Other things weren't-- for example, I once played a Toucan Sam 45 rpm record I had cut off the back of a serial box at 33 and claimed it was Barry White).

Into my 20's and 30's and beyond I consumed and loved music. I found new bands and went to concerts and when I drove I played music loud and sang in the car. I have always been astounded by people who can sing well; it's a total magic trick to me, like making objects disappear or speaking French.

But then, maybe ten years ago, something happened, and I don't really know how or why. I stopped looking for new music. I started listening to talk radio in the car. I lost track of what songs I had in my collection.

And I think I lost a part of my soul then, too-- a part that could bring real joy, or reflection or reverie.

What did I lose?

Well, I lost the feeling I had when I would drive down Jefferson Avenue in Detroit, singing this song and making appropriate hand gestures (when I was driving the Miata, people would stare):



And I lost the way a song like this would make my heart race, and get me ready for whatever it was that was going to happen next:



And this, too, could do the same thing to me:



I need to change this, and let my soul be whole again.

While I was away at the island I wrote some poems. I'm sharing a few here.

If you live in or around Minneapolis and you are looking for something to do tonight... I'll be speaking at Drinking Liberally, starting at 7 at the 331 Club, located at 331 13th Ave. NE, Minneapolis. People usually start gathering at 6 or 6:30.

I'll probably talk about the Richard Painter/Tina Smith primary, the Kavanaugh nomination, and (if they will let me), clemency. Please come! It is free, but you have to buy your own beer...

It's been an interesting week in criminal law, as all eyes have been on the Paul Manafort trial, as President Trump's former campaign manager defends himself against charges unrelated to that role.

We saw some good lawyering. It appears that the prosecutors did a pretty good job of fronting the bad facts about a key witness, Rick Gates, inoculating him from some hard hits on cross. That said, the defense attorneys did their job and worked every angle they could when they got their bit at Gates (who was Manafort's Capo and, apparently, victimizer through theft).

The thing that really struck me, though, was Manafort's stuff. This guy really wanted to live the high life! It seems that he was quite stylin', stepping out in a $21,000 watch and a $15,000 ostrich coat.  He shopped at stores where you apparently have to have an appointment. Over the course of five years, he spent about $1,000,000 on clothes and jewelry.

People who know me are aware that, uh... let's just say that I don't spend a lot of money on clothes. Many of my clothes are from the last millennium, literally.  And I'm stumped as to what the utility or value is to a watch which costs $21,000. Does it tell time super-well? Is it weightless? Can it make you invisible? (actually, if it can make you invisible, a lot of people will start saving).

A long time in criminal law has taught me that the desire for stuff is the undoing of a lot of people. I suspect that the objects are a proxy for something else, a way of showing accomplishment, I guess. No one is immune, of course-- we all lust for something now and then (I'll admit to fantasy car shopping online).

Virtues and vice haven't changed much since ancient times. Wealth, power, and revenge are strong motivators... and always have been.

Now that I am back from Osler Island, I'm plopping down some of the poems I wrote up there. This is the second.