Sunday, February 28, 2010


The Soul of a church

There seem to be three types:

1) Those that are defined by the minister.
2) Those that are defined by the congregation.
3) Those that are defined by a continuing identity that survives turnover in the pulpit and pews.

Which do you find most satisfying?

Saturday, February 27, 2010


Rivers of People, Flowing, Merging, Moving

I grew up, both in Detroit and Grosse Pointe, within five miles of I-94. It is a gritty strand that flows between abandoned churches and abandoned auto plants, a continuous tableau of exposed rebar and broken concrete. Even now that road is full of broken old sedans that thump on the potholes and rattle so loudly you can hear them in the next lane through the trash bag taped over that old sedan's window. The interstate (like too many other things) was held a safe distance away from Grosse Pointe, four blocks from our neighborhoods, but was still our lifeline to the rest of the world. Every trip started with that merge, that short entry ramp, onto I-94. My dad would hit the gas, the car would jump, and we would slip into that flow with people headed to Flint and Toledo and Lansing and places even less fortunate than those.

Now I live the same distance from I-35, which runs from Laredo to Duluth. Unlike Grosse Pointe, the interstate runs straight up the gut of Waco; Baylor dorms are yards away from trucks rumbling by. I-35 is always crowded, always, and is the Mississippi River of Texas, full of people and goods and immigrants and life. And, sometimes, death-- the river is still untamed, and can kill you if you aren't careful. In Austin, it splits into two levels, and I always take the upper deck so that I can see everything, look right into the football stadium and see the students at UT. In the summer, I have driven that road nearly its full length starting in Duluth and heading south as I start out in a sweatshirt and end up in shorts two days later, home again in Waco.

These are the two rivers I have known best.

Recently, I found myself at the place where they meet. I was on I-35, and the GPS said "turn left on I-94," and it struck me that this was the meeting point of my life. For a moment, the two roads ran together and I saw tall buildings and a place I didn't know, even as I was surrounded by the grit and steel of my familiars. These are my rivers, and I am still a drop, flowing, flowing, changing lanes and speeding up.

Friday, February 26, 2010


Aggie Haiku Friday

Having won the ball game against them this week, I continue to have fond feelings for the Aggies. So, let's borrow from last week, and I will just give you the last line, and you make the rest of the haiku.

This week's last line is "Went to A & M."

Here is mine:

Dallas ADA
Spoke so well in class; who knew?
Went to A & M.

Now it is your turn... Horns, Frogs, Bears, Cougars, and anyone else is welcome to join in...

Thursday, February 25, 2010


Political Machinegun Thursday

Question: Should citizens be allowed to possess machine guns?

I'm thinking about machine guns. I'm also very happy. Here's why:

As I mentioned before, I wrote the amicus brief for the federal defenders in the O'Brien case in the Supreme Court. In that brief, I did something legal writing instructors would never want you to do: I pretty much ignored the question presented, and asked the Court to address a totally different question altogether. Specifically (and I am simplifying here), I wanted them to overrule one of their prior cases (Harris) and find mandatory minimums unconstitutional, though the question presented only addressed the technical issue of whether the finding that a gun is a machine gun is an "element" of a crime or a "sentencing factor."

So, to sum up, the court wanted argument on statutory construction. In my brief I asked them instead to find an entire type of statute unconstitutional. (The principal briefs, as they had to, largely ignored this question, while a few other amici addressed it).

The case was argued yesterday, and the transcripts became available today (available here). I rushed to the printer, and when I got it I was looking for two things. If the Court were to give my idea a chance, I might see (1) some mention of it in the opinion, and (2) a discussion of re-argument, because if the Court wanted to address it, they probably would have to start over and present that as a question (something that rarely happens).

When I read the opinion, here is what I saw (as context, it is important to realize that in the Harris case, Justice Breyer was the deciding vote in a 5-4 decision against my position, and in my brief I argued that Apprendi's interpretation in Booker made his view contrary to established law):

Justice Breyer: But if it's a sentencing factor, then we get into the problem of Harris v. Apprendi. And then you have to decide whether it's maximum, minimum, et cetera. But in Harris, I said that I thought Apprendi does cover mandatory minimums, but I don't accept Apprendi. Well, at some point I guess I have to accept Apprendi, because it's the law and has been for some time. So if and in fact, unfortunately for everyone I was-- I was 5-4 in that, I think, so my vote mattered, and I don't know what other people think but-- on this Court. But if that becomes an issue, if that should become an issue about whether mandatory minimums are treated like the maximums for Apprendi purposes, should we reset the case for argument? Or do you feel, in your opinion that-- that you have had enough of an argument because you devoted two or three pages to this topic?

Assistant SG:
(pretty much avoids the question)

Justice Breyer:
Does the government believe that it's sufficiently argued this, or would you suggest on the government's behalf that if it becomes an issue it's set for reargument? That was really my question.

Assistant SG:
Well, yes, we would certainly want it set for reargument--

Justice Scalia:
That's the right answer.


1) Breyer and Scalia don't agree on much, but they seem to like the idea of re-argument on the point we raised. ("That's the right answer"-- you're so money, Justice Scalia!)

2) If it is re-argued, Breyer has changed his mind, come to our position, and we may win.

3) Crikeys! Did they actually read my brief?

[I don't actually know the answer to #3, but I like to think they did... and, well, it's still pretty awesome what you can do with the help of some Baylor students).


No helicopter looking for a murder,
Two in the morning, I got the Fatburger,
I even saw the lights of the Goodyear Blimp...

I gotta say it was a good day. Again. Thanks, friends, students, mentors, and especially those of you who have been all three.

Wednesday, February 24, 2010


It's time for the Baylor/A & M Hatefest 2010!

Tonight I'll be at the big Baylor/A & M basketball game here in Waco. For some reason, this has become a very heated rivalry (I'm from Michigan, so I don't know much about in-state rivalries; we really only have one strong school). At this game last year, in fact, the ESPN announcer said with a straight face that he "feared for his life" and that the crowd had "turned ugly."

The fact is that I really like A & M. Many of my favorite students came from A & M, including many of the best writers, a fact which flies in the face of my theory that the best writers come from small schools.

I like the strong traditions and identity at A & M. I find that to be a constant at the schools I like best-- you never get the idea it was anyone's second choice (Yale Law has this quality, too).

For law school purposes, too, I like the fact that A & M produces strong personalities like Jed or one of my favorite Razorites, the Dallas ADA (who is an Assistant D.A., not an Americans with Disabilities Act, as some have implied).

A few years ago, I was asked to give a Wiley Lecture down at A & M. I had never been on the campus before, but I was the recipient of tremendous hospitality. I was given a parking space to shoot for, and when I pulled in, a group of students walked up to greet me and take me to dinner. I was fascinated by the culture of the place almost immediately.

When it was time to give the lecture, I was shown into a full room. There was a professor there to introduce me, and a student to introduce him. The student approached the podium, looked up, and said "Howdy!"

"Howdy!" yelled everyone back at her.

At this point, I leaned over to the professor, and asked him what the heck was going on. "If you say "howdy" to people," he explained, "they have to say it back."

I began my lecture with about three rounds of "howdy!" It was a good day, one of those lush green fields...


When salt loses its saltiness, prosecutors, and emotion

I think life should be fully lived, and a person should allow him or herself a full range of emotions-- that is, we are at our best and most meaningful when there is real joy, real hurt, and recognize both the tragic destruction and stunning beauty around us. With our eyes wide open, the blues can be cobalt and the greens like a lush field in spring. I am not suggesting that anyone change their lives to generate emotion (that can be incredibly destructive), but simply that they let themselves feel the emotion that goes with the events of their lives. (I suspect this line of thought comes from the Suzanne Vega video I posted a few days ago, where she tries to smile while singing a profoundly sad song).

Prosecutors have, as their principle task, the management of tragedy. When I won a conviction, there was something profoundly sad about that verdict-- it would not undo the crime, unharm the victim, and simply marked another stage in a tragic life probably bound for more harm and pain. To do the job well, though, one must allow himself or herself to really see that tragedy-- to look in the face of a victim, and know the pain in the families of defendants. It is emotionally draining to do this, but to avoid the emotional aspect of the underlying tragedy is to fail to see the whole of the story. Importantly, the prosecutor must both see the tragedy but often let it continue-- must do her duty and ensure that someone is incarcerated. I did it many many times, and it was the right thing to do. Still, it was a task that took me to dark places, and that made it all the more meaningful.

Over time, many prosecutors cope with the tragedy by developing mechanisms to take the emotional edge off. Some use humor, others vilify all defendants, and some use one to do the other. For others, it becomes a 9-to-5 task, and the defendants and victims are reduced to numbers (a reduction made easier by things like the sentencing guidelines, which literally reduce a defendant to nothing more than numbers).

There is a cost to a system of career prosecutors, and one might be suggested by the question Christ asked: "What is salt when it has lost its saltiness?" (Matthew 5:13) What is the job of managing tragedy when it no longer seems tragic?

Tuesday, February 23, 2010


Top five Texas snow day activities (from what I can see)

1) Waiting for the tow truck.

2) Buying groceries in a mad panic, because somehow this one inch of snow will cut off our food supply.

3) Accelerating.

4) Building large mushy snowballs that never quite coalesce into snow people.

5) Talking about the weather events of 1978.

(In actuality, reading a book by a fire is what you should do)


Teaching with Hulitt Gloer

There are good, bad, and middling days as a teacher. Believe me, too, we know it when things go well or we have a clunker of a day.

Yesterday's class in Oral Advocacy was a good one. I teach the class with one of my true heroes, Hulitt Gloer. We don't really plan it out too much-- I do a short introduction, he lectures on the material (this week, from Aristotle's On Rhetoric), and then I give a reaction which ties the ideas he has introduced to legal practice in its various manifestations. It's a risky structure, and requires a lot of trust between the two of us.

Sometimes, though, it really works, and I think yesterday was one of those days. We discussed the idea of logos in argument, and Hulitt laid down quite a challenge with the level of his discussion. At the last minute I ditched what I planned to say, and chose to apply his advice to a single hypothetical case. It flowed, and felt great. I love teaching, especially on a day like that.

If you would like to see a glimpse of the class, check out the class blog, where the students lay down their thoughts each week (go down one post to get this week's reflections).

Monday, February 22, 2010


Mastery of sad songs

My nomination for saddest song might be this version of Tom's Diner by Suzanne Vega. There is someting really heartbreaking about the part of the story that comes in about 1:30 of the clip, followed by (in the video) her trying to smile and failing. Her expression at 2:00 is just chilling. What a raw video...

It's folk music, a lament, of a certain New York sort that is shot through with alienation and failure to connect.

Now watch how the sadness is bled out and the song becomes very different once DNA adds a dance track. It's no longer a lament (even with the exact same vocal track), and even offers a way out from alienation. There's a good message there--


Blogs are so 2008!

[What's up with those back-up singers? Do they represent something?]

I'm hoping that there are some new blogs by the 1 and 2L's at Baylor. If you know of one, drop me a line in the comments sections-- and the same goes for 3L's, if I don't know about them.

In the meantime, is the blog still a viable medium? I heard a radio pundit a few weeks ago say that they are passe. Hmm. Of course, the Buggles also thought that radio was dead...

Sunday, February 21, 2010


Sunday Reflection: Faith, optimism, redemption, and accountability

Here in Waco, the talk of the town is still the arrival of Ken Starr as the new president of Baylor. I have said my piece on that already, but opinions continue to be very mixed in this community.

When we are at our best, Christians are optimistic. We believe in redemption, and the ability of people to change and improve. We look to the example of Christ, who so often went to those who had done wrong, and urged them to do better. When he healed people, when he preached, when he showed us how to love, Christ spoke to what is best in us.

As Baylor enters this new era, I hope that those of us who are critical of Ken Starr can be optimistic-- that they can look to the man who led Pepperdine Law to new heights rather than other roles he has held in the more distant past.

However, there is a Christian challenge to the rest of us here at Baylor, too. When I look at the whole of Ken Starr's career (some of which I have been critical of in the past), what I see is a consistent theme of expecting accountability. This is the strand that links together his actions as Special Prosecutor and as dean at Pepperdine. In the former role,it would seem that he saw his role as holding the president accountable. In the latter, he expected the professors at Pepperdine to actually produce scholarship and quality teaching, even as this was expressed most often in a positive rather than a negative way.

Those who doubt Ken Starr should offer him the chance of redemption in this new role, even as we prepare for an era in which expectations are raised-- for both Judge Starr and ourselves.

Accountability and a belief in redemption-- is that such a bad recipe for a Christian University?

I continue to hope for the best.

Saturday, February 20, 2010


So far, an excellent birfday!

From the list in the post below, here is a status update:

2) Complete edits to "Texas Juries, Buyer's Remorse, and Booker's Fatal Flaw" for the next issue of the Federal Sentencing Reporter.
-Check. Not exciting. I did do it in a secret lab, though, which was cool.

3) Move like a playa or pimp.
-I'm not sure. Is there a difference between playa and pimp movements?

5) Get hit wit' a few shells, but don't walk with a limp.
-Check. Ouch. Cheney!

8) Put the Benz on dubs.
-Check. Well, I washed the Mazda, which is a functional equivalent.

9) Address the Texas Coalition to Abolish the Death Penalty Conference on the subject of Jesus on Death Row.
-Check. Sure, not enough sleep and wet hair, but I think it worked. I was in a great mood, and that makes it all better.

10) Sip Bacardi like it's my birfday.
-Check. At the Bodega Bar in Dallas, which has excellent niches full of unusual people.

Friday, February 19, 2010


Yeah, it's my birfday...

... this weekend. Any ideas on how I should celebrate, other than the following?

1) Head out to da club, bottle full of bub.

2) Complete edits to "Texas Juries, Buyer's Remorse, and Booker's Fatal Flaw" for the next issue of the Federal Sentencing Reporter.

3) Move like a playa or pimp.

4) Review Elena Kagan's reply brief in O'Brien in anticipation of Tuesday's argument.

5) Get hit wit' a few shells, but don't walk with a limp.

6) Review material in Aristotle's On Rhetoric for Monday's Oral Advocacy class.

7a) See Xhibit in da' club.

7b) Finish analysis of Guideline Section 2L1.2 as vulnerable to a Kimbrough/Spears challenge.

8) Put the Benz on dubs.

9) Address the Texas Coalition Against the Death Penalty Conference on the subject of Jesus on Death Row.

10) Sip Bacardi like it's my birfday.


Haiku Friday: My Grade Was a "B"

In high school, by brother Bill wrote the best high school paper I have ever read. It was entitled something like "The Use of "Whip It" in the Work of The Dazz Band and Devo." It really was a brilliant social analysis-- but he got a "B." In honor of that paper, we are going to change haiku Friday a bit. You can write whatever you want, so long as the last line is "My grade was a B."

Here is mine:

Dazz Band and Devo
Cleveland and Akron meet...
My grade was a "B"

Now it is your turn.

Thursday, February 18, 2010


Ken Starr as the President of Baylor University

[I brought this back up to the top for a bit because the comments are so interesting-- give them a look]

It's official: Pepperdine Law Dean Ken Starr will, in fact, be announced as the new president of Baylor. While we are all still adjusting to this news, I do want to confirm what I said in a prior post: This is a great choice.

Though I collaborate with both liberal groups (such as the ACLU in the project announced last week) and conservatives (for example, the Supreme Court brief I wrote last month for the Washington Legal Foundation), it is fair to say that I disagree with Dean Starr on many issues. As a former prosecutor, there were aspects of the Clinton investigation which deeply troubled me. However, I think that Dean Starr has proven himself at Pepperdine Law as someone who will put the institution first, is a strong leader, and who will finally bring stable leadership to Baylor.

I have known Ken Starr for several years, been to his home a few times, and we have discussed our work at length. I have found him to be gracious, strikingly intelligent, and humble. I know this last will shock people, but hopefully people also know the value I put on humility, and that it is something I look for in others.

Over at Baylorfans, a poster implied that I (or any faculty member) would say something nice about any new Baylor president. That is a reasonable assumption, but isn't really accurate. Rather, I would be silent if I did not approve (I am somewhat politic, after all). Obviously, that is not the path I am choosing.

What do you think of this choice?


Political Mayhem Thursday: Immigration

I am in El Paso now, preparing to give a talk to the federal criminal bar on sentencing in immigration cases. It's fascinating stuff, too-- an area where policy does not seem well thought out, even as lots of money is being spent.

For example, El Paso is a part of "Operation Streamline," in which all illegal re-entries are taken as federal felony cases rather than simple deportations. It seems that this has resulted in most of the Border Patrol resources going into these smaller cases and less into more serious arrests, such as large-scale drug trafficking. You can download a report on this from the Warren Project at UC-Berkeley Law School (via Brad Bogan's blog) here.

What should we do about immigration? Here are some non-exclusive options:

1) Stop worrying about it so much, and let people in who want to be here.
2) Keep things as they are.
3) Increase measures at the border to stop people from entering illegally, such as building walls and hiring more Border Patrol agents.
4) Go after those who employ illegal immigrants, to take the economic incentive out of entering the country illegally.

I have some sympathy for this last option. I favor economics-based approaches where fewer cases make a bigger difference. Yes, if you do this labor costs will go up and some things will become more expensive, but that means that at the same time wages will improve for legal immigrants and citizens.

What do you think?

Wednesday, February 17, 2010


One Concurring View

From one of my favorite analysts:


It's Drug Day in Crim. Prac. and Pro.!

Later this morning, it will be "Drug Day" in my Criminal Practice and Procedure class-- the class session devoted to a better understanding of illegal narcotics. It's important to cover this because drugs and drug culture permeates so much of criminal law and shapes things like plea agreements and probation conditions even in non-drug cases. In the past, we have seen some remarkable performances, including Chris Fahrenholt's legendary reading from William S. Burroughs' Junkie.

At a deeper level, though, I was reminded last night (at the showing of American Violet) of how students from this class have not only learned about the law, but then at times have made it better. David Moore was in my first Crim Prac and Pro class, and was an incredible student. In part because of his work in the Hearne case (together with the Bean family's work in Tulia), Texas law was changed to bar prosecution of narcotics cases on the uncorroborated testimony of a single informant. Just yesterday I covered that rule in this same class, without thinking through the connection-- that the rule changed after someone who sat in one of those seats took a huge risk and did the right thing. How cool is that?

Later this afternoon, I will be off to El Paso for my lecture tomorrow to the federal panel attorneys, which will focus on immigration issues. Which, by the way, will be our topic for Political Mayhem Thursday tomorrow...


A Great Speech at Baylor (2010)

This afternoon in a jam-packed room at Baylor's Student Center, Ken Starr introduced himself to the Baylor community. It was the most electric atmosphere here since the speeches by Bill Underwood and Randall O'Brien referred to in my previous post.

It was an excellent speech. There were some subtle things I really enjoyed. For example, he described himself as the kind of leader exemplified by Barnabas in the Book of Acts. He made this reference but did not explain it; he assumed (correctly) that nearly all of his audience would recognize the figure of Barnabas as one best known for providing encouragement and support in the very early church.

That reference told me two things. First, he did know his audience and spoke at exactly the right level to them. Second, his speech was not highly religious (those who think it was should look up some video of other talks at Baylor), but still signaled his faith as a source of his worldview.

The remainder of his speech was consistent with his allusion to Barnabas, too. There was no negativity-- no one was attacked, and he clearly conceives of the University as one unified and worthwhile whole. The buzz in the room as we left (I stood in the very back, and had a great view of the crowd, if not Dean Starr) was very positive.

After the speech, the Noze Brothers appeared to do something involving nose-glasses.

It was a good day for Baylor.

What are you hearing? Are people warming up to this pick?

Tuesday, February 16, 2010


A Great Speech at Baylor

As many of you know, I was mentored as a professor by former interim President Bill Underwood, who has gone on to do wonderful things at Mercer University as President. Bill is beloved there now, and has built a faith identity for that school that is consistent with a modern era and the history of that school. He's also one of the people I admire most in the world.

On the first full day he was interim, Bill gave a wonderful address to the members of the Baylor community, along with his provost (and another of my mentors, heroes, and friends), Randall O'Brien. Though the video linked below does not show it well, the end of that speech was startling and wonderful. Bill simply walked out the back doors as people applauded. As he opened the doors, the bright Texas sun streamed into dark Waco Hall like a brilliant sunrise, and the metaphor could not be missed. It was a day few who were there will forget.

As we prepare for another distinguished lawyer to greet the community today as President of Baylor, it might be a good time to recall what Bill and Randall said back in 2005. You can view the video (in several formats) here, and I hope that you will. (I give a short intro of Randall at the beginning-- the good stuff is after that).


A new Baylor Law blog!

It seems that BLS student Cheryl Blount now has a blog. Excellent!

Monday, February 15, 2010


This week

In addition to my classes (and so far they have been a lot of fun), I have three events this week:

1) American Violet showing on Tuesday, April 16

The Waco Community Race Relations Coalition will be showing American Violet at the Texas Life Annex building, 1000 Washington St. in Waco, on Tuesday, Feb. 16, from 5:30-8:30, including discussion with myself and some others. Dinner will be served! If you would like to come, please call Jo Welter at 836-4599 and make a reservation. (You can check out some reviews here).

2) Federal Panel CLE in El Paso, on Thursday, Feb. 18

Next up, on Thursday, I will be giving a talk on immigration sentencing issues to the federal criminal bar in El Paso, which I find to be a fascinating town.

3) The Texas Coalition Against the Death Penalty 2010 Conference on Saturday, February 20

Finally, on Saturday I will be addressing the TCADP at their annual conference in Dallas. I will be on a panel moderated by Michael Landauer, editor of the Dallas Morning News, along with Richard Dieter, Executive Director of the Death Penalty Information Center and Linda White of Murder Victims’ Families for Reconciliation. Linda and I testified together last June in Congress, and she is someone I greatly admire. If you would like to come to the conference, it is open to all-- simply register here.

Sunday, February 14, 2010


Rumor patrol

There is much speculation that Baylor will name a new president on Tuesday.

Here is one rumored candidate I know personally and think highly of. There is a possible hitch, though, as Dean Starr is a member of the Church of Christ, and the Baylor president has always been a Baptist. If that is not an obstacle, Ken Starr would be a great choice as the next president of Baylor University. I very much hope the rumor is true.

I realize that people may be surprised that I feel this way, as Dean Starr and I disagree on many political issues. However, he is a competent administrator and a passionate educator, and often collaborates with others who are not conservative. I don't want a President who agrees with me about politics; I want one who makes Baylor succeed.

True story of Ken Starr: A few years ago, one of the first year professors at Pepperdine Law resigned abruptly, leaving no one to teach civil procedure. Dean Starr himself stepped into the breach and taught the class with passion and competence, winning him street cred with faculty and students alike.


Olympic footage


Love, Grace, and Pain

Today is the holiday on which we celebrate love. Real love, of any kind, is hard if it is to endure. The most difficult part, as I have written before, is forgiveness. True grace is very hard to dispense, because it means giving up our own legitimate feelings of hurt. And how do you do that, exactly?

In the people I admire most, it seems to be by literally forgetting the wrongs they have suffered. I don't know how they accomplish this, but it is as if their hurt has gone away completely, somehow. Can faith do that? Christ tells us to forgive not once or twice, but 7 times 70 times. Is that a reasonable thing to ask, given the hurt involved?

I don't have a sensible answer to that, but much of what Christ taught does not comport easily with what we think of as common sense. Jesus not only challenged his society, but each of us to do things the hard way.

Love, of any kind, hurts sometimes. And if it doesn't hurt, perhaps it is not really love.

Saturday, February 13, 2010


Guns on campus

Yesterday at the University of Alabama at Huntsville, Biology professor Amy Bishop shot six other people, killing three, at a meeting where her tenure appears to have been discussed.

It's an awful story. I imagine the biology department packed into a conference room, and people running and panicking when the shooting started.

That scene makes me think about the current movement to allow people to carry guns on college campuses (something that is generally prohibited now under Texas law). Would it have made things better or worse if other professors had been armed? Would others have been able to get to their guns in time to change anything, and if they had, do we want a lot of shooting in a small, crowded area like a conference room or classroom?


The same old criminal justice story, once again...

DNA Evidence Frees Black Man Convicted Of Bear Attack

And, also, this.

Friday, February 12, 2010


Haiku Friday: Family Legends and Snow

Ok, I'll admit it-- I've been kind of busy, and did not get over to the Mayborn Museum to get new photos of things in the curiosity cabinets there. Sorry, man.

Instead, this week we will have two topics:

1) Snow
2) Family legends

I've been thinking about the second topic for a while. Recently, my dad recounted one of my favorite family legends of all-- the time that he and his cousin Toughy went down to Tijuana, and only my dad came back. Here is the resulting haiku:

Madcap Mexico,
Revelry, women, police.
Duh! "Toughy and Spike."

Now it is your turn... just follow the magical recipe of 5 syllables, 7 syllables, 5 syllables.

Thursday, February 11, 2010


Update on the Commutation Project

It looks like the Commutation Project is getting some attention. It made the national AP wire (meaning it will hit hundreds of papers tomorrow), and positive coverage from opinion leaders in the area like Doug Berman. Here is the way it is appearing in USA Today, for example.

So... what Sid Earnheart started is now going to become a national issue.

That's what Baylor Law students can do.


Political Mayhem Thursday: Unveiling The Project

Several months ago, I mentioned that I was working on a big project. Today, that project is finally unveiled.

Last April, Baylor Law student Sid Earnheart did an amazing thing. He organized a meeting in Washington DC that involved some of America's top appellate lawyers, advocacy groups, experts in the pardon power (including a former U.S. Pardon Attorney), and lobbyists. The purpose of this meeting was to start a project in which we would push President Obama to use the power of pardon and commutation in a principled way. Specifically, we wanted him to use that power to correct the oversentencing of many people in crack cases. The administration already had asserted that they thought that crack should be sentenced in the same way as powder cocaine cases.

In starting this project, Sid and I were reacting to the unprincipled way that the two previous administrations have used that power.

Today, we will file the first petition for commutation on behalf of Hamedah Hasan. This petition was prepared (extremely well) by lawyers at the ACLU's Drug Law Reform Project, with whom I collaborated previously in the case that ended up being chronicled in the film American Violet.

To check out the Hamedah petition and get an idea of what the project is all about, check out the web site.

Wednesday, February 10, 2010


Some photos from graduation last Saturday...


Deanna Toten Beard is the Best Person in the History of the World!

[the also-rans:

2) Mother Theresa
3) Drew Brees
4) Theodore Roosevelt
5) Ghandi
6) Al Roker]

Among my many teacher-heroes, DeAnna Toten Beard has a special place of honor. She is one of those people I supposedly teach with, but "learn from" is a better way to put it. Here are some facts you should know about DeAnna:

1) She rocked my Crim Prac. and Pro. class on Tuesday.
2) She is my only friend who is a dramaturg.
3) She has pet chickens.
4) Remember that problem at Three Mile Island? She fixed it, and was only six at the time.
5) In class, she is able to be authoritative and warm at the same time, a rare feat.
6) She has not only taught me things about theater, but about law.
7) She shot J.R.

For the students in Crim. Prac. and Pro. who enjoyed DeAnna's teaching, you may want to read the article we published about, uh, teaching Crim Prac and Pro together. You can download that article here.

Tuesday, February 09, 2010


Thank You

Running this blog is a joy. One of the things I really love is that the people who comment are uniformly interesting and civil. I'm not sure how that happened, but it has, and it is fairly unique on the internet. I do allow anonymous comments, and do not often employ comment moderation, yet I have very few problems, even when I address political subjects.

The best writing on this blog is usually in the comments, and many of us look for the regular contributors, such as Lane, RRL, IPLawGuy, Justin T., DiadelKendall, Michael, Clark, Ginger Huntter, Scott Davis, W.K., Septimus, Christine, Jesse Davis, Kendall, Sleepy Walleye, Swissgirl, TallTenor, the Waco Farmer, the Dallas ADA, the Spanish Medievalist, AZ Public Defender, TydwithBleach, Jessica, and many others who offer up inspired and inspiring stories. Thank you to all of you; what you do almost always makes my day better.

Monday, February 08, 2010


Best non-playing sports moments

The Super Bowl was actually pretty interesting again! What's with that? Let's get the Buffalo Bills back in there!

Though it was a good game, the Super Bowl was not my favorite sporting event of the weekend. On Saturday night, I went to see Baylor's Lady Bears destroy the University of Colorado, 76-42. If you haven't heard, Baylor has a phenomenal freshman named Brittney Griner, who not only is 6'8", but is extremely gifted for an athlete of any size. Last night, she blocked 11 shots, scored 24 points, and grabbed 10 rebounds for her second triple-double of the year. She was completely dominant inside, and after a while Colorado just stopped trying to get past her. It was an amazing performance.

But then, after the game, something really fun happened. The Baylor team stayed on the court to sing the school song ("That Good Old Baylor Line"). Griner took a set of pom-poms from a cheerleader and sang the song with the pom-poms in proper cheerleader position before doing a little cheerleader dance once the song was done.

People say she will change women's college basketball. That might be true, but this much I know:

1) She seems to love playing the game.
2) She doesn't take herself too seriously.
3) She is actually acting like a college student.

How great is that?

And what is your favorite unscripted sports moment?

Sunday, February 07, 2010


Oooh! A Waco Restaurant Blog!

Check it out here.


Sunday Reflection: Two Oslers and the link between faith and science

In the picture you can see me with Osler McCarthy, who works for the Supreme Court of Texas. We had met online, but never before in person.

What we have in common is a name, and a name that is uncommon.

Sir William Osler was a famous (well, relatively) medical educator in the 19th century and into the 20th century. He was a founder of the Johns Hopkins medical school, and then became a medical professor at Oxford in 1905. His two major innovations were (1) To teach medical students by taking them on "rounds" to treat patients, and (2) to emphasize the mental state of the patient as a crucial factor to recovery.

As for the second, what do you think? It seems like this lesson has passed on to some physicians more than others, in my own experience.

There is something deeper there, too, though. In a modern world where science and faith are seen as separate spheres, each living in fear of the other, I think Osler's idea suggests a harmony. The spirit of the patient, often linked to faith, does affect health. Is that a denial of science? Of course not. The body responds to our thoughts and feelings in a variety of ways. We know this from the time we are children-- we can tell when a friend is down because of how he looks, in ways beyond the superficial facial expression or posture. Sadness changes us physically, as does joy. Because faith is the source of such feelings for many of us, the nexus between faith and science is that very link between our minds and our bodies, a link that no one would dispute.

What does that mean? I don't think that there can be no science without faith or no faith without science, but what I learn from Sir William is that they are not in separate spheres; there is a connection, and in a profound way it is within me.

And what of my own work?

There are moments, too rare, that I feel akin to Sir William on rounds, looking in the eyes of a patient not to assess pupil dilation but to reassure him. If I can teach in that way, I will.

Saturday, February 06, 2010


Now that's a graduation!

Baylor's graduation this morning was a real treat- now it's time for lunch at Cricket's. I'll post pictures over the next few days, but suffice it to say that not only did it feature great students, but also Osler McCarthy, Jonathon Swanburg, and State Rep. Brian Hughes, who gave a very good speech. And, of course, Luke Talbot:


Bob Darden at work

There are a lot of people doing important work at Baylor, but in the long run none of it may be as significant as what Bob Darden has been doing, which is basically saving the legacy of an important American art form. He single-handedly raised grant money and set up a process to digitally record what is left on vinyl of historic black gospel music, which is his area of expertise.

Friday, February 05, 2010


Haiku Friday: Freeze Dried Frog!

As I hope you remember, Haiku Friday has been devoted for the last several weeks to the oddities found in the Mayborn Museum's Curiosity Cabinets. There are some very strange things in there. For example, this week's curiosity, which is a freeze-dried frog.

Here is Dr. McCormick's haiku:

In 2020
They'll put him in the hot pot
And see how he tastes

And mine, which draws from the wonderful world of Frog and Toad Together:

"Hello, Frog, It's Toad.
You look very odd today.
Should we go fishing?"

Thursday, February 04, 2010


It's IPLawGuy's Birthday!

And it's a big one. With an "0" in it.

Wish him a good one here!


Political Mayhem Thursday: Who should we elect to be president in 2012?

Hey! We have an election coming up in a few years. Who should we elect (or in the case of Pres. Obama, re-elect)?

Here are some potential candidates, starting with the most obvious:

Barack Obama
Sarah Palin
Mitt Romney
Rink Allegro
Mike Huckabee
Jeb Bush

Wednesday, February 03, 2010


Music drought

Every few years I go through a drought where I can't seem to find any good music to download. I am in one now.

Help me out! What is there, fresh and new, that I should be listening to? Genre is not an obstacle... (and please, nothing by anyone in the above video)

Tuesday, February 02, 2010


Who is the protagonist of the American narrative?

I say Thomas Jefferson. His life intersected with crucial moments for the most important story arcs: race, freedom, democracy, Western expansion, and the definition of the federal government and its powers. He is also a compelling, powerful, and flawed character who reflects many of the strengths and challenges of the nation as a whole.

Who would you choose?


Legal Expert Has Head in Shape of Chicken McNugget

Seriously-- what's going on with my hair here? It seems to be clumped up on one side of my head for some reason. Please feel free to text me any snide comments you might have.

Monday, February 01, 2010


Federal Law enforcement set to grow even larger...

as Doug Berman notes with some regret here.


Best restaurants in Waco

1) Ninfa's
2) La Fiesta
3) Chuy's
4) Sieta de Mares
5) Health Camp

Does anyone disagree?


Now that January is done...

I can look back, and be glad about all that I took on-- teaching and writing two Supreme Court amicus briefs at the same time, as part of my pro bono sentencing work. Those briefs are now available on-line. In getting everything done, I relied on the great work done by four Baylor students who helped me this winter: Tyler Atkinson, Katherine Holstead, Landon Ramsey, Nathan Winkler, and Warren Wise. Links are provided below (click on the case caption):

1) United States v. O'Brien and Burgess

One of just three amicus briefs in what might end up as the most important criminal case this term, I wrote this one for the National Association of Federal Defenders. Previously, I wrote their brief in Kimbrough, and as always they were a pleasure to work with. The Defenders, of course, include some of the finest appellate advocates in the country, so it is both an honor to be asked to write for them, and a special challenge to meet the standards of experts who understand the issues so well.

This case is especially significant because it carries the possibility of fundamentally changing the nature of mandatory minimum sentences, by requiring that they be supported by jury findings rather than fact findings by a judge. My argument is that mandatory minimums suffer the same constitutional defect as the mandatory guideline systems stricken by the Court in Blakely and Booker-- the sentencing range is altered based on facts determined without a jury.

Oral Argument will be held on February 23, under an expedited schedule.

2) Dillon v. United States

This brief was prepared on behalf of the Washington Legal Foundation, and was the only amicus brief submitted to the Supreme Court. I wrote this one with Prof. Rory Ryan and his sister Elizabeth Ryan, and many (perhaps all?) of the best ideas in the brief were theirs. As their web site makes clear, the WLF "champions free market principles, limited and accountable government, individual rights, business civil liberties, and legal ethics." Like the Federal Defenders, they have far more experience than I do in Supreme Court litigation, and it was a pleasure to join the roster of people who have written on their behalf-- they were wonderful to work with.

Dillon involves the resentencing of people who are eligible for a lower sentence when the Sentencing Commission changes the guidelines. The Commission had announced a rule that at resentencing a court cannot consider anything other than the changed guideline. We argued that this was wrong in several respects: That it violated controlling statutes, that it allowed an administrative body to define the jurisdiction of federal courts, and that it ran against a long tradition of individualized consideration at sentencing.

This brief, because it presents a unique viewpoint, has a chance of being determinative in the case. Argument is set for March 30.

I love the idea that I can write these things at the kitchen table, and that they end up where they do-- in the hands of the Justices and their clerks, with the chance (and sometimes only that) of changing the law for the better. What a great country, where that is possible!

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