Sunday, September 30, 2018


Sunday Reflection: What we remember

The testimony before the Senate Judiciary Committee last Thursday has, to say the least, captured the nation's attention in a way a single event rarely does. In part, it is because that one event combined so much that is at the center of our consciousness at this moment: sexual assault, civility, political division, the rule of law, and the role of alcohol in our society.

But there is something else, too, that people are debating: memory.

I got a lot of notes this past week; some encouraging, some nasty. One of the more unpleasant ones was from a bile-spewing woman who told me that I didn't know what I was talking about because I had never been a victim. From there, she explained that she had been a victim (she was robbed and shot in the head), and that from this experience she knows that victims remember everything about what happened to them, and because she does not remember everything Dr. Ford must have been lying.

There is a lot wrong there.

One, and probably the most significant, is the assumption that someone she doesn't know has not been a victim.

Second-- and there is a lot of this going around-- she starts with a single data point (herself) and from that very limited data set draws universal conclusions.

I don't claim expertise in how memory works. But I am wondering how so many others have become so expert in that field that they are able to draw conclusions about two people they saw on TV for a limited amount of time under highly unusual conditions.

There could be larger role for humility in all of this. I am going to try to remember that.

Saturday, September 29, 2018


The Photo

At one point, someone referred to the women behind him as Judge Kavanaugh's "supporters," but they don't look like it at this particular point of the hearing. And then there is this.

Friday, September 28, 2018


Haiku Friday: Fall is here

It's been a strange and memorable week. I wrote a brief for the Supreme Court, and spent a lot of time talking about it.

But when I step outside here in Minnesota, something wonderful is happening.  Fall. Let's haiku about that this week (and feel free to include your feelings about this fall's political events, if that helps).

Here, I will go first:

I will stop walking
And pick up a perfect leaf:
Red, translucent, mine.

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

Thursday, September 27, 2018


Political Mayhem Thursday: How to watch the Kavanaugh hearings

I'll be watching as much of the testimony tomorrow in the Senate Judiciary Committee as I can (and I may be talking about it tomorrow night on CNN). Here is what I will be watching for, and not watching for:

1)  The Democratic and Republican lineups on that committee are distinct in two fascinating ways. Six of the ten Democrats on the committee were previously United States Attorneys or state prosecutors with either trial or supervision experience. On the Republican side, though, only one has that kind of experience--Mike Lee was a federal prosecutor--and a few others have related experiences (John Cornyn was Attorney General of Texas, and Ted Cruz was Solicitor General there--both jobs that rarely if ever take someone into a trial courtroom). Will that matter? Is that disparity one reason that the Republicans have hired a "female assistant" (as Sen. Mitch McConnell called her) to ask the questions? [intriguing, but probably irrelevant, is the fact that half of the Democrats on that committee have Yale degrees, while only one Republican does).

2)  Will the demeanor of the participants affect the way they are viewed? Commentary will probably run heavy on how the two witnesses "looked," and that is in part because there are so few other reference points in a hearing that was not preceded by an investigation and does not include other witnesses.

3)  Will Judge Kavanaugh make enough reasonable concessions (ie "I drank too much in high school and I regret that") to seem credible? It seems that such admissions are outside of the Trump playbook, but probably being urged by his counsel.

4)  I will also be watching Dr. Ford to see if she ties in corroborating evidence to support her points-- for example, that she told others about the alleged events long before Kavanaugh was nominated. If she can do that successfully, it could be convincing to many people.

5)  It would seem that Dr. Ford, who is a psychology professor, would have an advantage in a spectacle that is largely about psychology. She actually has four degrees in psych, from UNC, Pepperdine, USC, and Stanford. Will that be a factor?

6)  Mostly, though, it will be a show trial. If it was meant to reveal truth, there would be an investigation and other witnesses, including Mark Judge.

Wednesday, September 26, 2018


I was wrong.

Sometimes that is an important thing to say. And sometimes you have to say that as publicly as you did the wrong thing in the first place.

Luckily, I got the chance to do that. On Monday night, I went on CNN with Don Lemon and explained that I would not sign a letter in support of Brett Kavanaugh knowing what I know now. You can see that clip here.

Building on that, two of my classmates joined me in my view. There is a great story in the Washington Post today about that, which you can read here.

Sometimes it is dispiriting that so much of what I am involved in is really all tragedy. Criminal law is often like that; clemency work is a partial respite, at least when it works. But if I look tired, there is a reason.

Tuesday, September 25, 2018


Alone in a crowd

Because I am an introvert (and I am), sometimes I do want to be alone. The stereotype of that, of course, is heading out to the woods in some remote location and sitting on a rock by the shore. And certainly I have done that-- it is a major form of entertainment up on Osler Island, after all-- but it really isn't my favorite method.

What I prefer is to be alone in a crowd. That is one reason that I love New York; it is a perfect place for introverts. You can walk down a crowded street, and there is this remarkable sense of alone-ness if you care to see and feel it. The people on the street are like a wave that you ride, adjusting your pace and placement in reaction to each new bump and ripple. If, like me, you are pretty much 100% average looking, you become functionally invisible, making the task that much easier. 

And then, when it is time to break the spell, it is so easy to do! You can buy a hot dog, and there you see the people in line, the vendor, the guy at the next cart, and perhaps join a conversation.

Cities are sought out by all kinds of people, and that is one of their strengths.

Monday, September 24, 2018


On September

Good haiku! I loved this from Jill:

“You need a sweater.”
My mom’s words ring from beyond
the grave. Still true now. .

Gavin, meanwhile, had the same theme with different clothes:

Shorts? Jeans? Tee? Hoodie?
September keeps you guessing.
Mom says bring a coat!

And Christine looked outside:

Out past grandmas house
Trees, dangling ruby red orbs
Crunch, sweet nectar drips.

Sunday, September 23, 2018


Sunday Reflection: A great weekend in Minnesota

I have been lucky in my mentors. Each has been caring, challenging, loving, and present-- a rare combination.

One of the most important of these, Dr. Joanne Braxton, has been here all weekend, starting with a series of events at the University of St. Thomas on Friday. She gave a remarkable talk to our students-- and there are events of that day I will be unpacking for a while, and perhaps discussing in future Sunday Reflections.

This morning, Dr. Braxton is giving the sermon as First Covenant Church in Minneapolis, on 7th Street across from the Vikings stadium. The gospel choir will be singing, she will be preaching, and if you an be there you should. The service begins at 9:30....

Saturday, September 22, 2018


The worst in us

Sigh. This just keeps getting worse. And the worst part of it is the failure to recognize the position Dr. Ford has been put in. She has nothing to gain, and she was brave to come forward. Treating her like a villain reveals some of our country's worst instincts.

Why not let there be an FBI investigation?
Why not give her a week to get ready?

What  is the rush? I don't understand that part of this.

If there is one thing I have learned in criminal law, it is that time is a friend to justice. It is rare that rushing a proceeding promotes the ultimate divulgence of truth.

Friday, September 21, 2018


Haiku Friday: September

There is something about this month that is just unmistakable.  Maybe because, for me (and other people in or teaching school) it is the start of a new year, all potential and possibility. Let's haiku about that this week-- a September memory you don't mind sharing.

Here, I will go first:

Running at The Hill
Two dual meets every week
Take that, Clintondale!

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

Thursday, September 20, 2018


PMT: Corroborating evidence

One of the best pieces I have seen on the evolving Kavanaugh appointment story came out yesterday on NBC's website. It was written by five former federal prosecutors, including former E.D. Michigan U.S. Attorney Barbara McQuade. (And yes, it is kind of weird how people I knew at different parts of my life keep popping up in all of this. I keep waiting for IPLawGuy to be involved somehow). The McQuade group's analysis fits with some of my own thoughts, in that it recognizes that when witness stories conflict, corroborating evidence that supports one story or the other becomes very important.

I would note one thing, though: It is often easier to come up with corroborating evidence that an event did happen than to corroborate that an event did not happen, because individual data points can validate individual parts of a narrative. In other words, it is relatively easy to prove part of a story true, while it is hard to prove a negative (that is, that a story is not true) unless a simple proof--for example, an alibi- is available.

I recommend reading the whole piece, but here is part of McQuade and the others had to say:

"While some argue that the truth about this incident will come down to a “he said, she said” situation, that’s not how it looks to us. Prosecutors and investigators are confronted with these scenarios frequently and don’t just throw up their hands and say, “We can’t decide.” Instead, prosecutors look for corroborating evidence — and there are strong indications already that Ford is telling the truth about her attack. Here are some of those indicators:
First, there is corroboration. Ford’s therapist’s notes in 2012, provided to The Washington Post, generally record her account of the attack. To believe that this is a made-up tale to prevent Kavanaugh’s confirmation, Ford would have had to plant the seeds of this story in 2012. That makes no sense.
Second, while not determinative, the fact that Ford passed a polygraph administered by a former FBI agent lends credence to her claims. Polygraph exams are inadmissible in court because they are not always reliable, but the FBI and other law enforcement agencies frequently use polygraph tests to assess the credibility of witnesses and defendants."

Wednesday, September 19, 2018


Meanwhile, in Minnesota...

Culture in Minnesota runs deeper than "Prairie Home Companion," but still... people do identify that old radio show with this place (and are right to do so).

For those of you who weren't keeping track, Minnesota Public Radio fired Prairie Home Companion host Garrison Keiller two years ago in the midst of a scandal involving allegations of "sexually inappropriate" behavior that Keillor denied. The show got a new host, musician Chris Thile, and a new name: "Live from Here."

The transition now seems complete, as the Star-Tribune reports that the last holdovers from the Keillor cast--Richard Dworski, Tim Russell, and Fred Newman-- are leaving the show.

Meanwhile, Keillor is getting the band back together for a performance in November at "Crooners Lounge and Supper Club." Which might be the most Minnesotan thing ever.

Tuesday, September 18, 2018


The Kavanaugh Dilemmas

As pretty much everyone knows, Brett Kavanaugh's nomination to the Supreme Court has become enmeshed in a controversy over an incident alleged to have happened in high school. A professor in California, Christine Blasey Ford, has come forward to say that Kavanaugh sexually assaulted her when he was 17 and she was 15 at a party. A vote on confirmation has been delayed, and both Kavanaugh and Blasey will testify before the Senate Judiciary Committee this coming Monday. It is a good thing that the vote was delayed so the matter could be addressed.

Along with a few dozen classmates, I signed a letter supporting Kavanaugh's nomination (you can see the letter here). I signed it after talking at length with another classmate who knew Kavanaugh well, and thought that it fairly expressed my views. In short, I voted for Hillary Clinton, and my side lost the election. Given that, I think we need to hope that a nominee is qualified, and can't fairly insist that the nominee conform to our views. After all, we lost the election. Losing control over Court choices comes with that.

At that time, of course, we didn't know about Christine Blasey Ford (though apparently Diane Feinstein did).  That changes things, for me and others. The hearing on Monday will be important-- more important than anything that happened in the previous days of questioning.

The new development also may raise some of the issues I have studied in another context while looking at life without parole sentences for juveniles. My view has long been that juveniles are capable of change and that what they do should not have lifelong consequences. Now, I anticipate that the Republicans who argued for long mandatory sentences will articulate a sincere belief in the ability of young people to change. Will they be willing to apply that view to sentencing? I'm not the only one who is wondering, given this piece in the Atlantic, and this one in New York.

Let's revisit this next Tuesday, after the hearing...

Monday, September 17, 2018


Sports haiku, storm related

Maybe it should have been hurricane haiku? Jill remembered an earlier storm:

2010 Saints healed
NOLA, me, the nation, us
all from Katrina.

Christine's had an update (she lives in NC):

My paddles ready
Kayaking through storm water
New Olympic sport...

ps. not much rain from Florence at our house...

The swimmers ready
Lighthouse on the horizon
And then they are off!

Sunday, September 16, 2018


Sunday Reflection: A Christian in troubled times

I have often said that I am unashamed and unafraid to be a Christian in public life. That is becoming harder to say.  These have been difficult times. I am ashamed of what many of us have said and done, and frustrated by the inability of myself and others to do much about it.

Last week, I gave a talk to a large conference room full of death penalty defenders about faith and capital punishment. These are the people who follow (whether they are aware of it or not) Jesus's directive to "visit those in prison," and who bear the approbation of many because they seek to avoid the death of a man or woman at the hands of the state.

As is true with people in that business (and in many of my advocacy circles), relatively few of those in the audience were Christians. Many of them, in fact, were alienated from Christianity by what it has come to represent in our society: sexual predation, political ambition, protestations of victimhood by the rich and powerful, and the promotion of "religious freedom" as a permission slip to stigmatize, reject, and harm some of the most hurt and powerless of those among us.

I felt compelled to begin my talk by acknowledging all of this, before identifying myself as a Christian. My first slide showed a cross on a hillside, and I discussed how that image is going to mean very different things to people in this day and time: to some it is a symbol of salvation, and to others a symbol of oppression or dysfunction. Beginning that way that felt right, but also deeply sad. We are in a bad place.

After my talk, several people came up to talk to me. One of them was a Dominican nun who is a death penalty defender. She was one of those people who is tough and warm; a combination too rarely found. Our conversation was brief, but I left it more hopeful.

Christianity, here and in much of the world, can no longer assume respect. We must earn it. That nun is doing so. Many are not. I am not doing enough.

It may be a healthy thing for this faith. We have become fat and lazy and arrogant as a majority; losing that status will make us work to reflect the true example of Christ.

Saturday, September 15, 2018


Back from Memphis

I spent the last few days in Memphis talking to hundreds of people who defend death penalty cases. It was a fascinating time; these people work in a dark and dangerous area, and constantly fight to bring light and balance to a process that resists both. I learned more than I taught, as usual.

In other news, St. Thomas has apparently replaced the "angry hockey coach" photo they have been using with one where I look like a slightly more happy hockey coach.

Thursday, September 13, 2018


Haiku Friday: Sports!

Americans spend a lot of time watching sports. We do not, however, agree on what sport is the one to watch-- which is why we have something like 73 sports channels on cable tv.  But everyone has a favorite! Let's haiku about that today-- your favorite... or not your favorite-- to watch or play.

Here, I will go first:

It's gotta be baseball
You can do literally
Anything else and watch.

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


Political Mayhem Thursday: Cuomo v. Nixon

As primary season draws to a close, New York Democrats will choose today between two very different candidates, Governor Andrew Cuomo and his upstart opponent, actress Cynthia Nixon. In what might be the most New York thing ever, much of the attention has been drawn to Nixon's bagel order at Zabar's: lox and cream cheese on a Cinnamon/raisin bagel. Apparently, this is viewed as something akin to going to a steak house and asking for a bag of poop. I don't understand the kerfuffle-- I often have a cinnamon raisin bagel with cream cheese (though not the lox).

There are things to like about Nixon, but also she is dogged by some drawbacks:

-- Being named "Nixon"
-- Pretty much her only prior experience is being on TV

Of course, Cuomo has issues of his own. He is (properly) blamed for the subway crisis, and has done little to fix much of the disfunction in Albany. Still, he will probably win... but who knows, this year?

Wednesday, September 12, 2018


Their Eyes Were Watching God

A hurricane approaches.

When that happens, I always think back to that part of Zora Neal Hurston's "Their Eyes Were Watching God," where the impending storm is palpable, real, terrifying. 

The book was not on any reading list at my high school. I was lucky though; when I got to college at William and Mary I took a literature class from a prof who was not that much older than I was, a doctoral candidate at Yale named Joanne Braxton. We read the book, and we talked about it. What she said, what she taught, made me read it again the day after the class-- not something I ever did before or after. I wanted to get it.

Part of that book, and all literature, really, is the ineffability of the deepest relationships we live, which cannot be rationally described but can only be storied into re-existence for those not a part of them. One of those relationships for me continues to be with my mentor, Professor Braxton.

If you live in or near Minneapolis, I have good news: Professor Braxton is coming here. At 12:30 on Friday September 21 she will be speaking at St. Thomas, and then at 9:30 on Sunday Sept. 23 she will be giving the sermon at First Covenant Church in Minneapolis, with a discussion following at 11.  I hope that you will come, if you can. There is much to learn.

Tuesday, September 11, 2018


The storm approaches

Hurricane Florence is slowly closing in on the East Coast. It reached Category 4 status yesterday, and may get even more dangerous. It looks most likely to make landfall in the Carolinas, though those predictions seem to often go awry.

Even though the storm is not expected to make landfall until the end of the week, some coastal areas have already issued a mandatory evacuation, and some highways have been made one-way on both sides to maximize the flow of traffic heading away from the shore. A few thoughts on all this:

-- It would be pretty cool to drive the wrong way on a highway along with everyone else. Just sayin'.

-- The decision to evacuate is a tricky one. It shuts down the economy of that area, disrupts school, and separates families. Still, I think it is best to err on the side of caution, and I am glad they are already moving to get people out of there.

-- If I lived in that area, I would probably head off to the west and take the opportunity to explore some other community. Of course, the trip would be plagued with worry as I thought about what was happening back in the storm zone...

-- The beach area are going to get slammed. The Outer Banks of North Carolina are just narrow sand bars in the ocean, barrier reefs that move in reaction to natural events. That means that this storm may move them, leaving houses in the ocean where land existed before. 

-- Has anyone been through a hurricane? Any advice for those facing this one?

Monday, September 10, 2018


David Hasselhoff!

Why is it that I believe that Anonymous's haiku is 100% true?

David Hasselhoff!
I ran over, got a pic
Was not Hasselhoff.

Sunday, September 09, 2018


Sunday Reflection: The Lost

Not long ago, some people put together an internet site dedicated to my old high school. One feature on there was a listing of grads from each class who have died.

Naturally, I scrolled down to the part of the page that described my graduation year and those on either side on mine. And then I caught my breath.

How did all of these people die? With nearly every one, I had a memory, a little bit of shared history. And, with each one, I had no idea what happened after high school. I zoomed off in a different direction, moved far away, and made new friends.

But the tendrils of these other lives went in other directions, some of them tragic. I looked up obituaries; some of them described an illness, while others just laid out that the person had "died suddenly."

Human lives are so precious and so tenuous. I was always struck by the way Jesus seemed to see them all, the tragedies and joys around him. He noticed the lame and sick and poor, even those who just touched his cloak. I fall so short of that: I have a task in front of me and march towards it, undistracted by the lives on either side of me, before and behind me. I am blind. And I shouldn't be.

Saturday, September 08, 2018


Yesterday with Velshie and Ruhle

Friday, September 07, 2018


Haiku Friday: Celebrity selfies

I am taking some flak for not getting a selfie with Kim K. at the White House on Wednesday. Which is crazy-- that doesn't seem like the place to get a selfie at any rate, especially if you are supposedly there to be an expert in something. Yet, it seems, everyone else got one with her.

The last celebrity selfie I got was with Chewbacca, and I'm pretty proud of that. I'm sure you have at least one or two, right? So let's haiku about that this week. Here, I will go first:

I had to do it.
After all, when would I be
Back on Kashyyyk?

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

Thursday, September 06, 2018


PMT: 110 Minutes on the inside

Yesterday was interesting.

That's me (well, the back of my head) in the Roosevelt Room of the White House yesterday, sitting next to Van Jones and with Kim Kardashian looking over as I blather on about something. Ivanka Trump is at one end of the table, and Jared Kushner is at the other. Rachel Barkow is hidden behind Mark Holden (General Counsel of Koch Industries) down at the Ivanka end.

In short, Rachel and I, along with Paul Larkin of the Heritage Foundation, were asked to be part of a discussion on clemency reform, and got to make our pitch for a better system. It was a serious and worthwhile discussion, and I was really glad to be a part of it. You can see Gregory Korte's report in USA Today here. If USA Today is too "hard news" for you, here is the E! Online report.

Based on emails I have been getting from far and wide, I know people have a lot of questions, so I have included an F.A.Q. below.


Q.  Does the White House have valet parking?
A.  No, they don't. Or if they do, they didn't tell me about it.

Q.  Didn't the Clinton's put in a cat door for their cat? Did you see that?
A. I remember "Socks the Cat," but I didn't see a cat door.

Q.  Where is the White House located?
A.  It is found at 1600 Pennsylvania Avenue NW in Washington DC.

Q.  Do you think the Pardon Power can be used in a particularized way that would ensure that worthy applicants are found consistently?
A.  I do, and have written about that here.

Q.  When a president leaves office, do they have a de-inauguration where he has to turn in his keys and stuff?
A.  I don't think so. 

Q.  Where is the White House located?
A.  Still at 1600 Pennsylvania. It hasn't moved since three questions ago.

Q.  Did your presentation have any kind of modern dance component?
A.  Yes.

Wednesday, September 05, 2018


Protesters at confirmation

As the confirmation hearings for Supreme Court nominee Brett Kavanaugh began yesterday, the proceedings were repeatedly interrupted by protesters. It was hard to tell, from the radio reports I heard, what they were yelling, but they were effective in distracting the Senators involved in the hearing.

I certainly see that there are differing views on Judge Kavanaugh. But is this kind of protest going to result in any kind of a positive good for the side of the protesters? Or is that not the point?

Monday, September 03, 2018


College football kicks off

I am going to have a lot of writing to do about college football. I am struggling with the fact that I can no longer unambiguously support a sport that does damage--great damage, in many cases-- to the players, skews educational priorities, is the locus for scandal on many campuses, and has led the way in creating separate and unequal facilities on many campuses for athletes and non-athletes.

But, still, I can't help caring what happens. And when I saw the end of the Appalachian State/Penn State game on Saturday (Penn State won in overtime) I was swept right back into it.

The whole thing is a fantasy, I realize. Components of the fantasy include delusional beliefs that the players are normal students, that it isn't about money, that the players aren't being used by the system, and that there is no connection between the game and the physical maladies that players suffer decades later. Plus, the fantasy that Michigan will finally live up to its promise.

See, there I go again! My head tells me not to care, but my heart still does. Sigh.


On and Off Target

Oh! My dad's haiku reminded me that the Target near their house has closed. That's not a good sign for the East side of Detroit:

We only shopped there 
occasionally .... will miss 
our moving Target.

Meanwhile, do you think the Medievalist needs a call?

My Virgin Mobile
Phone came off the Target shelf,
Great buy to be sure.

And the Silly American had a different favorite:

Seven months, missing
Clothes Encounters Consignment
On Capitol Hill.

While IPLawGuy finally admitted that he takes most of his meals at Target:

Target, Walmart, Sears
as well as Unique Thrift Store
Target has best food.

Sunday, September 02, 2018


Sunday Reflection: God loves me

Saturday, September 01, 2018


Isiah and Aretha

I didn't know that Isiah Thomas and Aretha Franklin were friends, but of course they were. The two services yesterday-- for Ms. Franklin and for John McCain--have been like reading an obituary where you realize how little you knew about a public person....

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