Rants, mumbling, repressed memories, recipes, and haiku from a professor at the University of St. Thomas Law School.
Friday, April 30, 2021
Haiku Friday: Signs of Spring
I walked out of the house yesterday without a coat yesterday and instinctively turned back to get one. But... it was 60 degrees out. I really didn't need it. And right then and there I took a minute to appreciate that.
Spring really is here. Let's haiku about that this week. Here, I will go first:
The sounds of baseball
A ball hits a bat, cheering
Floats in from afar.
Now it is your turn! Just use the 5/7/5 syllable pattern and have some fun!
"Jobs jobs jobs" seemed to be the theme of President Biden's speech last night, and... well, did anyone else find themselves thinking about this?:
On the substance of the speech, there was a lot to like. I worry, though, about the $6,000,000,000,000 (6 trillion) price tag of the initiatives he proposed. He talked about offsetting tax increases (and I am fine with that), but only described $40,000,000,000 (40 billion) of tax revenues to offset the cost.
Trump's tax cuts were a mistake because they increased income inequality and bloated the deficit. Biden's spending will close the income gap, but will also increase the deficit. That's a serious consideration that was not addressed in this speech.
I'm devoting Wednesdays to profiling my former students, alternating between Baylor and St. Thomas.
I was always kind of fascinated by my Baylor law students who were graduates of Texas A & M-- it seemed to have such a defined and ingrained culture, a defined sense of place that not all schools have. One of my Aggies was Tom Nowak, who took some of my classes and impressed me with his intelligence and drive. He was one of those students who was not afraid to suggest I was wrong about something-- and sometimes he was right about that.
After law school, he went to work for Craig Watkins as a prosecutor in Dallas, which I had encouraged.
But then-- and this still makes me mad-- Watkins fired Tom and another of my former students after they attended a Republican event. I wrote about that here (and in a Dallas Morning News piece that I can't find online). It didn't stop Tom, though. He stayed in criminal law, on the defense side, and served his country in the Air Force Reserve Officer in the JAG Corps.
Most recently, he was elected District Court Judge in Collin County, Texas. I'm really proud of him, and I'm confident he is a great addition to the bench.
Why is Sailor Bear so grumpy? It has to be because legendary Baylor women's basketball coach Kim Mulkey is leaving Baylor for LSU after 21 years.
Mulkey and I got to Baylor at the same time, in 2000. It was the start of a grim decade for Baylor sports, with the lone exception of Mulkey's squad. She built a dynamite program that was always interesting.
I was a season ticket holder for the Lady Bears (as well as the, uh, Men Bears), and it was a fantastic show.
There is a lot of speculation on why she made the move, but I suspect there were both pull and push factors. Pull factors towards LSU would include the fact that she is a native of the state of Louisiana, and her son Kramer had a strong career there as a baseball player. Of course, I'm sure they showed her a lot of love, too, as they should have in trying to right an athletic department that has had some significant bumps lately.
The push factors-- reasons to be away from Baylor rather that towards LSU-- are harder to discern. But I have some pretty good ideas why someone having a decent run of things might want to leave the joint.
Baylor will probably attract a good replacement... but it is hard to replace a legend. And the first few years, especially if Mulkey's recruits follow her or transfer elsewhere, are going to be rough.
I know, I know-- I could have come up with a much better illustration to pair with the haiku topic of "art" than George Bush's painting of Arnold Schwarzenegger. Sorry about that! But you all came through anyways...
Desiree made me want to see this art!:
Paintings on wood, art that's also haiku. So proud of first son, artist.
Christine told some truth:
Many years, struggled to find my true canvas, now I paint with flowers.
The IPLawGuy is in a reflective mood:
Art, an elective So was band, no art for me A nagging regret.
It's supposed to snow here today. That happens in Minnesota in April (Prince even had a song about that, titled Sometimes It Snows in April). I'm pretty sure that the snow is just a device to make sure all the out-of-town news crews here for the Chauvin trial head home.
That verdict, of course, came in on Tuesday. I was in the middle of teaching first-year students criminal law at the time. Everyone's phone went off at the same time-- the University sent an emergency message signalling that the verdict was about to come in and shutting down the campus. I didn't have much choice; I finished the case and let everyone go.
I went down to my office, which is on the fourth floor of our school, looking out towards Nicollet Mall and downtown Minneapolis. The street beneath is 11th Street, which leads out of town to the expressway. Suddenly-- for the first time since the pandemic hit, really-- the street was jammed with cars and people tried to get out of the city. People were driving kind of crazy.
As time went on, it got more crazier. One or more helicopters whirred overhead, and there were sirens near and far. My phone rang; it was the local public radio station wanting to get my reaction when the verdict was read.
That's why I was sitting with the phone in my hand when Judge Cahill took the bench. Eerily, outside everything went quiet. The traffic jam evaporated, and I saw cars pull over to the side of the road, so the drivers could focus on the verdict.
When Judge Cahill announced a verdict of guilty on the most serious count, Second Degree Murder, I was relieved. It was the verdict I thought was right, having watched most of the trial. But there was another emotion, too, a deep sadness.
I mentioned earlier in the week that criminal law is all tragedy, and it is. I remember serving as a prosecutor and having the judge announce the verdict of guilty and feeling exactly that way: a deep sadness about it all. The verdict would not bring back George Floyd. It marked, more than anything, a recognition of a pungent truth about our society and the role of violence and race within it.
That sat in me, simmering for a minute. Then the people on the phone wanted to know what I thought.
The photo above shows Arnold Schwarzenegger hold the portrait that George W. Bush did of him.
Maybe not what I would put up in my home, but tastes vary. One pleasure of doing a lot of TV spots from my office is that people write to me about the art behind me and I get to direct them to my dad's website.
Let's haiku about art this week: what you like, what you have made, what you want to see, whatever!
Here, I will go first:
Then, I didn't know him
But he lived in my house
And now... now I do.
Now it is your turn! Just use the 5/7/5 syllable pattern, and have some fun!
But I still have more to say about it. Here are three key points:
1) As always with criminal law, it is all tragedy. The verdict will not un-murder George Floyd. The best we can hope for is that it will inspire better choices and deter bad policing in the future.
2) Three unusual factors were in play here. There was an unusually young and diverse jury. The case was turned over to the state Attorney General. And tremendous resources were used to get a conviction-- including the retention of great experts like Dr. Tobin. Those things were unusual, but they shouldn't be in these important cases.
3) The sentencing will also be important-- don't stop paying attention! The judge must decide whether or not to enhance the sentence above the guideline range (128-180 months), and if so, by how much. That will be a very difficult task.
Finally, the world owes a debt to these jurors, who took on a difficult and perhaps dangerous talk for $20 a day. That's public service!
I have devoted Wednesdays on the blog to profiling my students, alternating between Baylor and St. Thomas. I have so far only profiled former students, but am breaking that tradition today-- and for good reason!
Every year, I get great students in my clinic to work on federal commutations; some of them have already been profiled here. This year's group had some real challenges. For one thing, the pandemic prevented them from traveling to see the clients. I don't even have a picture of them to put up here, since they have never been in the same place at the same time (as two of the students participate online).
Yet, somehow, they have done great things. And today they are being awarded with St. Thomas's Mission Award for Service and Community.
What did they do?
Well, of course they worked on cases and did a wonderful job working with clients and producing petitions. But they went beyond that.
For one thing, they are directly responsible for the state pardon given to Maria Elizondo in a special session of the pardon board. You can read about that here.
Just yesterday, I found out something even more remarkable. One of the problems with Minnesota's unproductive clemency process is that granting clemency requires a unanimous vote of the Governor, Attorney General, and the Chief Justice of the Supreme Court. That seems contrary to the constitution of our state, which requires only that the Governor grant clemency "in consultation with" the others.
Yesterday, Judge Laura Nelson of the Ramsey County District Court agreed with us and ruled that the clemency process is unconstitutional. Will it be appealed? Probably. But it is a remarkable ruling. My students not only helped me frame up the arguments (which were ably improved and presented by Andy Crowder at Blackwell Burke), but drafted an amicus brief that was taken into consideration by the court.
Quite a year. Quite a group. Here is who they are:
Sometimes when people quote me on something, they run a photo of another person named Mark Osler. There aren't a lot of us, and some of them are a serious upgrade from me-- for example the Mark Osler who is a Pulitzer Prize-winning photojournalist.
The Mark Osler I am had a busy day talking to people all over the world about the Derek Chauvin trial yesterday. All morning I did live commentary for Al Jazeera, then talked on a radio show in New Zealand, spent a half-hour on Wisconsin Public Radio's wonderfully named "Central Time" show, then the 6 pm news on our local ABC station (KSTP), and ending with an interview on Chinese television. This morning, I'll be on Court TV from 8-10 Central Time. (hehehe... I got to say "Central Time" again!).
The closing arguments in the Chauvin trial ended up taking about 6 hours-- longer than they probably should have been. My hunch is that there is about a 50% chance that we get a verdict today.
To everything there is a season. At least in Minnesota.
The winter here is magical in its own way. The world goes from color to grayscale, with bright white snow and dark nights. I was looking at some of my photos from the winter, and it is hard to distinguish some of the black and white ones from the ones taken in color.
And now it is changing. Yesterday I went on a bike ride and saw these amazing green buds coming out on the trees, the tall grasses emerging from the edges of lake, still tiny seekers poking out of the ground. Here and there are tiny blue flowers, the early adapters who let us know what is to come.
I feel as if the last year has almost been suspended animation. Was there Christmas? Did we end school, and start again? And was there this time that the NBA was playing in July, but major league baseball wasn't? More than anything, the pandemic has disrupted these non-natural markers of the cycle of life, the social changes that animate our modern world.
I am ready for that all to come back. And so are you, I suspect.
But perhaps in the absence of those man-made markers, some of us have become more attuned to the brushstrokes of God.
Vaccinations-- everyone is doing it! Moderna is prima, Pfizer is Pfine, and J & J is... uh, well, not so great right now. But still, this is a big part of our lives right now. So let's haiku about that!
Here, I will go first:
I got Fisher-Price
The vaccine with the sillies
But no side effects!
Now it is your turn! Just use the 5/7/5 syllable pattern, and have some fun!
A few days ago, I re-watched Spike Lee's 32-year-old classic, "Do The Right Thing," which is the movie that Barack and Michelle Obama went to see on their first date. It's a story of racial conflict that has at its center the asphyxiation of a black man by a police officer. The movie is dedicated to the families of six victims of police violence. The things we struggle with now are not new; they go back not just decades but centuries.
Yesterday, the defense in the Derek Chauvin trial called as its primary medical witness a pathologist named David Fowler. While no one can be assumed to be a racist because of where they come from, Fowler's personal history has remarkable ties to something that some might find hard to imagine so close to our own time: white supremacy as a formal basis of government.
Fowler was born and raised in Rhodesia, which is now known as Zimbabwe. When he was there, it was governed by a tiny fraction of the population, white settlers from Europe. Later, he went to South Africa for his medical training and practice-- during apartheid. Nelson Mandela was freed and South Africa began to genuinely move towards majority rule in 1990. Fowler left for the US in 1991.
I don't know Fowler's view on race; it didn't come up during the trial. But his mere presence at the trial, that long legacy of unabashed white supremacy in the places he came from, reminds us that the racial issues we face are not new. Nothing about those long roots, though, removes from us the moral obligation to finally change that history.
I'm devoting Wednesdays to profiling some of my former students, alternating between Baylor and St. Thomas law schools.
I'm pretty sure that Matt Fass is the tallest student I've ever had, and also one of the best.
Based on his performance in my classes, I had him co-author an article with me, and a very important one: the first one in which I ever suggested reviving the Ford Clemency Board model in our own time (an idea I am still pushing). If you are interested, you can download and read it here.
After law school, Matt went to work as a prosecutor, first in Wichita County (right up along the Oklahoma border) and then in Harris County, which is mostly Houston. For about four years after that, until 2018, he worked defending people accused of crimes in Harris County.
And then he swerved. Hard.
After a short period working as a flight instructor, he became an airline pilot! He currently works for United Express out of Houston, flying to places ranging from Lake Charles to Memphis to Mobile to Albuquerque. If you are interested in such things (and I am), you can see their route map here.
On Sunday, there was another troubling shooting in Minnesota. A veteran police officer in Brooklyn Center-- which is just north of Minneapolis--fatally shot Daunte Wright in his car. The officer claimed that she mistook her gun for her Taser.
The officer is white, and Wright was black. It's yet another case where the death is rooted in over-policing and race. This time, it appears that the incident stemmed from a traffic stop for either having an air freshener hanging from the rear view mirror or having expired tags.
There is so much work left to do.
And, of course, the Derek Chauvin trial is continuing this week. On that, my dad published a really remarkable blog post that I hope everyone will read (you can do that here). It's a perspective I haven't seen elsewhere-- based on his own experience of dying of asphyxia. I remember the day he describes; I was coming into Detroit just then for the Detroit Homecoming, and ended up going straight to the hospital. It was a terrifying moment.
But, in the end, he was there. He still is. And that means he can tell us this important story.
A year later, the pandemic endures. This past Friday, April 9, there were over 80,000 new cases reported, more than twice as many as we saw a year ago, when everything was shut down because the danger was so extreme.
Part of the problem now is that there are large swaths of people unwilling to be vaccinated, wear masks, or social distance. Because they tend to live near and socialize with others who hold similar views, this is creating islands of COVID vulnerability, where the virus will flourish and mutate-- thus threatening those outside of those islands. Many of those islands are comprised of Christians.
This brings to the surface one of the enduring paradoxes of American life. The US, which prizes individualism, is full of people who practice a faith that encourages selflessness in the service of others. The Gospel teachings of Jesus aren't about rights; they are about humility, sacrifice, and service. It's strange to have not wearing a mask or refusing a vaccine characterized as somehow a virtuous assertion of "rights"-- and stranger still to have these choices that endanger other people asserted by Christians.
And yeah, in the picture I am getting the Fisher-Price vaccine.
Aren't there some clothes you just wish would last forever? I tend to actually do keep some clothes forever, but most of them do wear out, get lost, or maybe migrate to the back of the closet.
Maybe it's a dress or shirt you loved, or the perfect swimsuit (I know that I still miss my perfect Adidas beach shorts). Or perhaps it is is a whole bygone genre of fashion that miss. No matter- just give us a haiku!
Here, I will go first (reminiscing on a favorite in the picture above):
Old green/red sweater
I loved you to death (though
Some moths sped demise).
Now it is your turn! Just use the 5/7/5 syllable formula and have some fun!
As the New York Times reports, the Biden administration's new tax plan would increase taxes by $2.5 trillion, much of it coming from new rules that will require companies like Apple to actually, you know, pay taxes. I'm all for that. I do not understand the utility of allowing a myriad of tax dodges that incentivize companies to move abroad. It also would raise the corporate tax rate to 28%, from 21%. Some will cry that this is more than many other countries' rates, but it also is about the same rate that many middle-class Americans pay.
The Trump administration's model-- lower taxes (mostly for the very rich) and spend more-- created massive deficits (just as the same recipe did for Reagan and George W. Bush). Under Trump, the deficit went up by $7.8 trillion, most of it before the pandemic. Biden is at least trying to raise some revenue for the massive amounts of money he is spending.
I'm not in the camp that says "deficits don't matter," and I'm concerned about the level of spending being proposed. But... better to spend and tax than to spend and not tax, which has been the predominant model-- politically palatable, but terrible policy.
I'm devoting Wednesdays on my blog to profiling my former students, alternating between Baylor and St. Thomas.
Laura Reilly came to St. Thomas after getting degrees from Rhodes College and U. of Memphis (for a Masters in criminology), and I remember her coming to talk to me before she even started law school. She had a background in criminal justice-- she had spent three years working on the federal weed and seed program-- and was eager to dig in.
She was the kind of student you love to have: bright, engaged, hard-working, and open-minded. She excelled in my classes, and I talked her into taking my clinic as well, where she worked on a difficult case and excelled.
After law school, she went off to work for a big firm, but.... criminal law will always be there when she gets done with that other thing!
It's been quite a year since last Easter. For nearly everyone, there has been a low of some kind: an illness, a work setback, a death in the family or within your circle of friends. It's been Good Friday for a while.
But Easter always follows. And perhaps this year it is more important than ever. Things change for the better, in ways we never imagine.
Good Friday and Easter remind us that the highest highs begin with the lowest lows. Our walk to the top of mountaintops begins with looking up from deep in the valley. Despair and joy are linked, tied together across time.
I love what I do, and sometimes I am good at it. But I got into law at the very bottom. I was desperate for a job, having been rejected again and again. All I could find was a job delivering flowers, and I wasn't very good at that. I answered an ad looking for a "young resourceful person," and it turned out to be from small law firm looking for someone to do some process serving, filing of documents, and other low-level tasks. I soon found what I wanted to do. And what I do now is connected to that low moment, for which I will always be grateful.
Happy Easter-- and I hope that there is a light on the horizon for us all.
Yesterday was opening day for baseball-- except in DC, where the Washington Senators got Covid instead.
Meanwhile, the Twins celebrated by blowing a three-run lead in the ninth inning to lose to the Brewers. I'm still not totally used to being a Twins fan, and am still partial to the Tigers, who beat Cleveland.
So, let's haiku about that this week! Here, I will go first:
This is normalcy--
My team blows a big lead late
I'm ready for that.
Now it is your turn! Just use the 5/7/5 syllable pattern, and have some fun!
The world's eyes are on Minneapolis right now as the trial of Derek Chauvin proceeds. As you might imagine, I've been talking about it some: to the New York Times, ABC News, GMA, the London Times, WBZ in Boston, and others. Today, I'll be with Al-Jazeera in the morning and ABC News in the afternoon (on their livestream).
-- The openings weren't surprising, except perhaps for the defense's brevity (I knew they would not go long, but thought they would take more than 20 minutes). The government did one thing that seemed particularly effective. When they showed the video (which of course they did), they left the sound in instead of muting it and talking over the video. The sounds of people calling out for Chauvin to stop is a big part of what makes the video compelling.
-- So far, the most important testimony is likely that of Genevieve Hanson, a Minneapolis firefighter (shown here).
-- Charles McMillan, who testified yesterday, was also effective, though his testimony did not go directly to any element of the crime. He struck me as more of a sentencing witness.
-- The prosecution has done one thing that I think is really wrong. They called a nine-year-old girl to the stand to testify about what she saw. That's immoral-- the testimony did not add anything to what others said in terms of facts, and re-traumatizing a child is something that should be done only if it is essential (and it wasn't in this case). Prosecutors view their work as protecting children from trauma-- that should carry over into the choices they make at trial.