That Explains Things

Peter Beinart has an editorial in the Press-Citizen regarding the caucus system in Iowa. He quotes Howard Dean:

"If you look at the caucuses system," he said, "they are dominated by the special interests in both parties. The special interests don't represent the centrist tendencies of the American people. They represent the extremes."

Without even stopping to ponder who exactly Howard Dean would consider extreme, I'll just state that I agree with the premise, for reasons I'll outline later.



Beinart claims that the caucuses influenced the Democratic party to be more anti-war than it naturally would have been. He blames this on Howard Dean's having taken Iowa by storm, and other candidate's feeling obliged to follow Dean's anti-war lead. He claims that Dean showed well because of extremists, fostered by Iowa's peace-loving culture and problems inherent in the caucus which amplify the party's dovish, activist base.

"Although spawned by re-forms aimed at making the nominating system more democratic, the Iowa caucuses aren't that democratic at all. In a primary, people can vote all day. But in Iowa, you must arrive at your precinct caucus site at exactly 6:30 p.m. and stay for several hours, which virtually bars people who work at night. There are no absentee ballots, and voting is not secret -- people often raise their hands to show whom they support."

I agree the caucus system does tend to skew results toward the extremes of each party. But it has nothing to do with Iowa's culture, or a secret vs. open ballot. You know why very few people other than extremists go to caucuses?



I do. I've been to a couple, and I'd personally rather have my fingernails ripped out with hot tweezers than go to another.



You don't just show up, vote for your candidate, and go home. Nope. You get to propose platform planks to send to up the ranks of the party. These planks are voted on at the county, precinct, and state level, etc., until they become the official platform of your party in Iowa. The political process in action.



Sounds cool, until you take into account the type of people who want to come out and debate platform planks with six strangers in somebody else's apartment. Extremists. People straight out of Monty Python:

Gumby (standing in water) I would put a tax on all people who stand in water ... (looks round him)... Oh!

Man In Bowler Hat To boost the British economy I'd tax all foreigners living abroad.

Man In Suit I would tax the nude in my bed. No - not tax. What is the word? Oh - 'welcome'.

It's Man I would tax Racquel Welch. I've a feeling she'd tax me.

First Business Man Bring back hanging and go into rope.

Second Business Man I would cut off the more disreputable parts of the body and use the space for playing fields.

Man In Cap I would tax holiday snaps.

You get to sit around and debate ideas for obscure laws with these lunatics for as long as they like before they let you vote for your candidate.



It's bizarre ritual combination of cruel and unusual punishment, false imprisonment, and high school detention. Outside of extremists, who appear to thrive on it, few people can endure this type of treatment.



That's why the caucus system will generally engender the type of candidates the loonies love. You don't need to move the primaries, have absentee ballots, or even secret voting. You just need to change the system so that people can cast a ballot for a candidate, and then be able to leave before the loonies get them. Then you can let the loonies stay and debate to their heart's content. Of course, they'll still come up with all sorts lovely, elaborate platform planks that the rest of us will eventually see unveiled at the state level and wonder "what the h*ll were they thinking?" But at least you'll get a vaguely representative primary vote.

Protist Porn

Giardia's sex life revealed.

"Despite more than a century of study, they were not known to have sex. . . ."



"What I would like to know in further studies is if the presence of these genes indicates meiotic sex or premeiotic parasex, in which many of the same genes might be used," Zolan told The Scientist.



"The genes and tools we used here will be critical for ascertaining the sexual status of such an organism," Logsdon said.

I've got about sixteen beavis-and-butthead-type jokes running around in my head right now, but I think it best I refrain from inflicting them on anyone else. It's bad enough I wrote the post.

Somebody has been waiting

to use this headline.



via Dave Barry.

The Case of the Roving Recorder, et al.

The new Iowa Court of Appeals decisions were posted yesterday. Some items I noted:



STATE v. CHRISTY was yet another attempt to find a loophole in OWI prosecutions: a claim by defense counsel regarding the certification that the machines were in working order was improper. The certificate was signed as "reviewed by" James Bleskacek and had a line for "lab analyst" Robert Monserrate. Basically, Bleskacek examined the machine and Monserrate signed off on the report. Both analysts had passed training that qualified them to certify the machines.



Defense first objected to the admission of the analyst's training certificates as hearsay. Apparently the prosecution hadn't made a proper foundation for the exception for documents in the ordinary course of business. However, as the court pointed out, this was harmless error because the analysts themselves were there and testified about their training.



The defense then tried to claim that the certification on the machines was improper because: 1) Monserrate hadn't personally examined the machine, and 2) The exam was done on-site at the station instead of trucking the machine back to Des Moines DCI lab. The court found neither of these very compelling either.



Finally - and this is my favorite - defense alleged that their client's rights to “be confronted with the witnesses against him” were violated when “Monserrate falsely portray[ed] himself as the laboratory analyst” who examined the DataMaster devices at issue, because “[t]he original certificates give no indication that anyone other than Mr. Monserrate examined the instruments in question,” preventing defense counsel from recognizing “the need to compel Mr. Bleskacek’s presence at trial.” In response, the Court of Appeals politely points out that Bleskacek was at trial and the defense did cross-examine him quite vigorously, so it's not quite sure why defense feels it didn't confront him adequately.



(Perhaps they wanted little boxing gloves?)



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KOSTMAN v. STATE involved a long-shot ineffective assistance of counsel claim: the defense had tried to suppress their client's confession to the acts which supported his conviction for lacivious acts with a child as a habitual offender and sexual predator. They called Dr. Dan Rogers, a court-appointed psychologist, to testify that the defendant was easily led, that he had relatively low verbal I.Q. and was essentially unable to read, making it unlikely he could have understood the Miranda warnings. The trial court denied the motion, and the trial went forward. The defendant was convicted, and appealed based on ineffective assistance of counsel because his defense team failed to call Rogers at trial. (NOTE: who has a defense "team" in Iowa? Do we look like Johnny Cochran lives here?) Of course, as the Court of Appeals pointed out, if counsel had called Rogers the State would probably have been able to rebut his testimony by pointing out that Kostman was a tad familiar with Miranda warnings, having had six prior convictions for lacivious acts with a child. The Court found that a "reasonable strategic and tactical decision."



(Ya think?)

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STRANGE V. GLASCOCK (Speaking of unusual names):

"Plaintiff claimed to have suffered a brain injury as a result of the accident. When specifically asked by defendant’s attorney she said she was claiming damages for a brain injury. Prior to trial she had two separate neuropsychological examinations by two different neuropsychologists, one of her choosing and one designated by the defendant. Both experts determined that plaintiff malingered on the tests and testified generally that one who malingers on neuropsychological tests may also be likely to malinger as to subjective physical complaints."

(NOTE: Sign #459 that your case is going straight down the toilet: your own expert testifies your client is a malingerer.)



A defense verdict was rendered based on an assessment of 50.5 percent fault on the plaintiff. The plaintiff appealed based on the inadmissibility of a defense reconstruction of the accident, and the claim that the testimony by the neuropsychologists that she was malingering was impermissible character evidence.



Iowa Rule of Evidence 5.608 provides:



a. Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, subject to the following limitations:



(1) The evidence may refer only to character for truthfulness or untruthfulness.



b. Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’s credibility, other than conviction of crime as provided in rule 5.609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness’s character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.



The Court found that the truthfulness of a witness is not “a fact in issue,” but a matter to be generally determined solely by the jury and that expert opinions as to the truthfulness of a witness are not admissible. However, Iowa is “generally committed to a liberal rule which allows opinion testimony if it will aid the jury in screening the properly admitted evidence to ascertain the truth." The expert testimony about the mental condition of a victim is admissible where the victim’s mental capacity is a key element of the crime charge. A key element in this case, if the jury had gotten to the issue of assessing plaintiff’s damages, was whether or not plaintiff suffered a brain injury and other injuries to her person. Therefore, the expert testimony was admissible on the issue of plaintiff’s personal injury, and the testimony was such that it would aid the jury in screening the properly admitted evidence to ascertain the truth as to the injuries she sustained. NOTE: there was a dissent by Judge Hecht in which he indicated he'd have excluded the malingering evidence.

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STATE v. PHILPOTT involves criminal eavesdropping. The facts are the most interesting part of the case:

Sadly, certain employees in the Franklin County Clerk of Court’s office, including the defendant, had a longstanding conflict. The State blames the defendant for the conflict and the defendant blames her coworkers. As disappointing as it is that the employees may have put their own personal issues before the good of the office, identifying the instigator or instigators of the conflict is not the issue. The case focuses on the operation of defendant’s tape recorder on November 7, 8 and 9 of 2002. Defendant had kept the tape recorder on her desk in the office for around a year before the days at issue. Following a verbal interchange with one coworker, the defendant sent an e-mail to the acting clerk of court to explain her side of the incident. In the e-mail she stated, “If I need to run a tape recorder every time I speak to either one of them to have an accurate record of the conversation, then I will.”



On November 7, 2002 coworkers claimed to notice the tape recorder was operating while the defendant was at lunch. One called the county attorney and the acting district court administrator to inquire about the legality of defendant recording conversations while she was out of the office. On November 8, the tape recorder allegedly was operating while the defendant was in another room on a conference call. On November 9, the tape recorder allegedly was operating while the defendant was at lunch. A coworker called District Court Judge Carroll. The judge was to testify he observed that the play and record buttons were depressed and the voice activation switch on the recorder was on. The judge called the acting court administrator and put him on hold while the judge sought to determine whether the tape recorder was recording. He stopped the tape, rewound it briefly, then listened to it. He heard voices of people in the office and the sound of whistling he made earlier as a test. Following a staff meeting, the defendant removed the recorder.

Interesting work environment, that. Reminds me of a quote my aunt Ellen uses to describe our family: "We put the "fun" in dysfunctional." Don't ask.



The defendant raised three primary issues on appeal: (1) the court should have granted her motion to dismiss because the statute violates due process and equal protection; (2) the State failed to prove she recorded anything, left her recorder on intentionally, or that the communications recorded were “clothed with an expectation of privacy;” and (3) the court should have granted a new trial because the jury was misinstructed, prejudicial evidence without probative value was admitted, and the weight of the evidence is against the verdict. The most interesting of these is the constitutional claim. Iowa Code section 727.8 provides:

Any person, having no right or authority to do so, who taps into or connects a listening or recording device to any telephone or other communication wire, or who by any electronic or mechanical means listens to, records, or otherwise intercepts a conversation or communication of any kind, commits a serious misdemeanor; provided, that the sender or recipient of a message or one who is openly present and participating in or listening to a communication shall not be prohibited hereby from recording such message or communication; and further provided, that nothing herein shall restrict the use of any radio or television receiver to receive any communication transmitted by radio or wireless signal.

The defendant had moved to dismiss case, alleging the statute was unconstitutional as applied to the her and on its face because:

1. It is void for vagueness because “having no right or authority to do so” is not defined or explained so a person of common intelligence would not have fair notice of its meaning and application.

2. It is overbroad because it invades a defendant’s First Amendment right to access to information.

3. It violates due process because it fails to provide an explicit standard for enforcement, thereby unduly delegating basic policy matters to police and others on a subjective basis.

4. It violates due process by imposing a criminal penalty without a requirement of general or specific intent.

5. It violates equal protection because it does not allow a person to record a conversation when absent that the person has the right to record when present.

With regard to the "right or authority" issue, the Court pointed out that this has been sufficiently defined in State v. Fox, 493 N.W.2d 829, 831 (Iowa 1992). Regarding the enforcement issue, the Court noted that the statute provides two general exceptions to the prohibition against listening to, recording, or intercepting conversations or communications: (1) a person can record if “openly present and participating in or listening to the communication” and (2) radio and television receivers may receive radio and television signals. The Court held the statute does not delegate basic policy decisions to enforcers or to provide for resolution on an ad hoc or subjective basis merely because it does not contain additional exceptions to the prohibited conduct, and so was not unconstitutionally vague so as to delegate policy decisions to enforcers or to provide for resolution on a subjective basis.



(An interesting side note: the defendant argued the statute should contain exceptions for recording with permission or if a person is unable to be present, such as a student recording a lecture. The Court responded: "Such argument should be addressed to the legislature." As a practical matter, I don't think the cops are waiting outside lecture halls to bust students, but don't you think this might be a little problematic?)



The Court also found the rest of the argument less than persuasive:

We conclude, as did the district court, section 727.8 is a general intent statute . . . We find unpersuasive the defendant’s argument it is turned into a public welfare strict liability offense because it lacks specific criminal intent language. . . .



The defendant contends the statute violates equal protection because it (1) classifies communications in which the participants have a reasonable expectation of privacy with those in which they do not and (2) too narrowly defines the exception for openly-present or participating and does not allow for recording by consent. . . . [W]e do not agree the statute must provide for recording by consent in order to pass constitutional muster as applied to the defendant. . . . The circumstances of this case show the defendant, in order to provide an accurate record of her interaction with coworkers, stated she would record her interactions with them if that is what it took. Under the statute, the defendant was free to record her conversations and interactions with coworkers without regard to their consent (emphasis supplied). . . .



The defendant asserts the State’s interest in stopping electronic or mechanical eavesdropping is based on the assumption the act is surreptitious and invades the participants’ privacy, citing cases from other jurisdictions and arguing the statutory offense is derived from the common law offense. From that assertion, she argues the statute is neither narrowly tailored nor rationally related to the State’s interest. The defendant argues strict scrutiny applies and the statute must be narrowly tailored because it infringes what she sees as a First Amendment right of access to information. She claims it is not rationally related because it does not require an expectation of privacy. . . . Strict scrutiny applies if a law implicates a fundamental right. . . . The defendant asserts “courts have held that gaining information or documents from a public office can implicate a First Amendment right.” Assuming without deciding the defendant’s assertion is true, she has provided no authority that any such right is fundamental. We conclude section 727.8 demonstrates a reasonable fit in the means chosen to protect individuals from unauthorized or unknown interception of their communications. It requires either that the person obtain the right or authority or else be openly present. In addition, as applied to the defendant, the statute would not prevent her from obtaining information or documents from a public office, nor would it prevent her from creating an accurate record of her interaction with coworkers. It merely prevents her from indiscriminate recording of conversations to which she is not a party.

Ooookay

An Oklahoma senator hopes to revive cockfighting in the state by putting tiny boxing gloves on the roosters instead of razors.



At least that's one stupid law that didn't get proposed in Iowa.

Just Wondering

Do the fashion police have a department of internal affairs?

Ethical Blogging

Lately, it seems I keep hearing about mainstream media articles like this and this discussing blog ethics. Key quotes from the AP article:

When Jerome Armstrong began consulting for Howard Dean's presidential campaign, he thought the ethical thing to do was to suspend the Web journal where he opined on politics.



But to suggest others do the same with their journals, otherwise known as blogs? No way.



"If I'm getting paid by a client, I don't blog about it. That's my personal set of standards," Armstrong said. "I'm not going to hold anybody else to my personal standards. I'm not going to make that universal."



The growing influence of blogs such as his is raising questions about whether they are becoming a new form of journalism and in need of more formal ethical guidelines or codes of conduct. . . .



How bloggers handle matters of ethics and disclosure vary greatly.





While Armstrong suspended his blog, a partner in his political consulting firm, Markos Moulitsas Zuniga, kept his going and instead posted a disclosure about the payment. The Dean campaign had paid the pair $3,000 a month for technical consulting services.





Others saw no need to disclose at all. In South Dakota, blogger Jon Lauck said many people knew he was a paid consultant to John Thune's Senate campaign, but Lauck didn't believe he had to post any "flashing banner" on his site. . . .



Many news organizations have formal guidelines separating editorial and business operations, and journalism schools and professional societies try to teach good practices.



Bloggers, though, tend to shudder at being called journalists, even as lines between the two blur. . . .



In some sense, bloggers already have informally adopted norms that go beyond what traditional journalists do, Rosen said. For instance, bloggers who don't link to source materials aren't taken seriously, while traditional news organizations have no such policies.



Dan Gillmor, a former newspaper columnist now studying citizen-driven journalism through blogging, said bloggers who want an audience will voluntarily adopt principles of fairness, thoroughness, accuracy and transparency.

I agree that those who want to be seen as accurate will disclose any financial connections to the company being blogged on. I don't have a problem with the idea of a political worker blogging, so long as the disclaimer is made when it touches "their" candidate, as Markos Moulitsas Zuniga did with "Daily Kos". But where does the potential for conflict begin? For example, I was a criminal prosecutor for about five years, and focused on domestic violence issues for three of them. I now work in an insurance defense field. Does that mean I am obligated to put a link to these facts whenever I discuss criminal or tort issues? My current standard is to use a disclaimer whenever I feel I've crossed the line from straight legal commentary to soapbox-land. Otherwise, I don't bother. You can glean the info from reading the blog, and like most blogs, it is essentially a personal journal of oddities. I don't feel that the personal nature of a blog makes it a poor choice for a source of information. I think James Lileks said it well in 2002 (link via Instapundit, as were the links to the articles above):

A wire story consists of one voice pitched low and calm and full of institutional gravitas, blissfully unaware of its own biases or the gaping lacunae in its knowledge. Whereas blogs have a different format: Clever teaser headline that has little to do with the actual story, but sets the tone for this blog post. Breezy ad hominem slur containing the link to the entire story. Excerpt of said story, demonstrating its idiocy (or brilliance) Blogauthor's remarks, varying from dismissive sniffs to a Tolstoi- length rebuttal. Seven comments from people piling on, disagreeing, adding a link, acting stupid, preaching to the choir, accusing choir of being Nazis, etc.



I'd say it's a throwback to the old newspapers, the days when partisan slants covered everything from the play story to the radio listings, but this is different. The link changes everything. When someone derides or exalts a piece, the link lets you examine the thing itself without interference. TV can't do that. Radio can't do that. Newspapers and magazines don't have the space. My time on the internet resembles eight hours at a coffeeshop stocked with every periodical in the world - if someone says "I read something stupid" or "there was this wonderful piece in the Atlantic" then conversation stops while you read the piece and make up your own mind.

Precisely. Most news-like blogs are more accurately linked to an editorial than the front page of a news letter. They're a news digest, meant to inform but also as a vent for the author to expand on their "take" on the issue. The links to original sources allow the readers to follow a trail of evidence and accept or reject the premise forwarded by the author.



On the other hand, some MSM outlets apparently need a refresher course in the very ethics being discussed. I was reading the Iowa Pork Forest blog this morning, as I'm signing up to contribute some posts there.



State 29 had this post about an editorial in the Gazette about the fake rainforest in Coralville, and the response from University of Iowa law professor Nicholas Johnson. Relevant excerpts are both from reprints of the articles on Professor Johnson's site. While I don't mind registering for online papers, I'm not subscribing to the Gazette merely to fisk it's articles.



The Gazette's article was very favorable to the fake rainforest:

The Environmental Project is the boldest idea proposed in Iowa in decades. Are there risks? Sure. After years of fund raising, enough money still hasn’t been raised to cover the estimated $180 million construction cost. And even once it’s built, it’s going to take a lot of visitors to make the facility self-sufficient.



But is it time to take a risk in Iowa? Even with all kinds of attention paid in recent years to business creation, work-force recruitment and simply bringing more people to Iowa, the state ranks 47th in the nation in growth since 2000. . . .



The Environmental Project won’t magically solve Iowa’s growth problem. But it can play a significant role on several fronts. . . .



Perhaps a rain forest in Iowa sounds crazy, but not any more so than a president’s likeness carved into a stone cliff or a steel arch towering over a Mississippi River town. Having a unique attraction on a grand scale would give tourists a better reason to come to Iowa, and it would leave people with a more positive perception of the state.



The Environmental Project would create hundreds of good jobs. Iowans would be cheering and legislators working overtime to create incentives if a traditional company were promising the same. . . .



Iowa can play it conservatively, shun new projects and unique approaches to economic development. But with that approach, expect the same 3 million of us to be looking at one another in a decade wondering why the tax base hasn’t grown, why investment and prosperity is fleeing to other states and why we rank at the bottom of population charts.

Professor Johnson's response points out several problems with their opinion. It also points out that the President and Publisher of the Gazette Company is Joe Hladky, who is also on the Board of Directors for the Iowa Environmental Project, which is another name for the fake rainforest in Coralville, Iowa. The Gazette never mentioned that potential conflict of interest in its glowing editorial.



This touches back to the issue I blogged on earlier, regarding members of the Citizen Advisory Board for the Environmental Project writing editorials and letters in the Iowa City Press Citizen, few of which mentioned the author's connection to the group. I'm reposting the list, and adding links to the reprints of their articles on Professor Johnson's site:

• Sheila Boyd, General Growth.

• Randy Rayner, Laborers Local No. 1238.

• Scott Carpenter, University of Iowa Department of Geoscience.

• Dick (Richard L.) Rex, former mayor of West Branch. • Lois Crowley, Iowa City Community School District.

• Chris Rohret, Iowa City Community School District. • Sen. Bob Dvorsky, D-Coralville.

• Sheila Samuelson, 2004 University of Iowa biology graduate. • Coralville Mayor Jim Fausett.

• Chris Scarpellino, Loparex Inc.

• Rick Hanna, Carpenters Local Union 1260.

• Josh Schamberger, Iowa City/ Coralville Convention & Visitors Bureau.

• Coralville City Administrator Kelly Hayworth.

• Dr. Jill Scholz, Family Foot Care.

• John Hudson, Iowa Arts Council.

• Linda Schreiber, Iowa City Area Development.

• Sandra Hudson, Iowa Incubator. • Sharon Thomas, Iowa City Community School District.

• Beth Jorgensen, Iowa City Community School District.

• Neil Trott, Canterbury Inn.

• Johnson County Supervisor Terrence Neuzil.

• Deanna Trumbell, Trumbell Consulting.

• Mark Phillips, RSM McGladrey.

• Ed Williams, Biowa.

• Wayne Peterson, United States Department of Agriculture.

• Joe Raso, Iowa City Area Development.



Interesting

Overlubricated

As a police officer, Brent is quite knowledgeable about things people have problems saying when drunk. Check it out - then practice, practice, practice.

Around the 'Net

Slashdot notes that most people who Google can't tell the difference between a paid ad result and a regular one.



It also features Kryptos - the ulitmate puzzle for those who truly want to drive themselves nuts.

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Erin Crawford at the Des Moines Register points out some of the weird laws that are being proposed at the Iowa Legislature this year:

To stop daylight savings time.

Rationale: Saving Money. How, exactly, I don't know. I guess getting up in the dark is cheaper.



To ban those spinning hubcaps

Rationale: in case someone thinks you're still moving and rearends you. As the article points out: how does somebody from behind see your hubcaps? WTF?



I'd like to add this one to the list: Getting rid of state income tax for people under 30. According to the article "The average yearly tax savings would run about $600 for taxpayers in their 20s or younger" but it "would reduce state revenue by an estimated $200 million a year, according to the nonpartisan Legislative Services Agency."



Do you people think that $600 a year is going to make a difference in keeping college graduates in this state? Seriously? Yes, the savings will go up as the salaries increase in the 20's and 30's. But the savings will never be enough to make up the difference in salary between a major Des Moines law firm and one in New York. I don't have any recent statistics, but take these from a University of Iowa law school press release in 2001 and extrapolate:

Nearly 60 percent of the recent graduates are employed in the Midwest, with 39 percent opting to practice in Iowa. The average in-state starting salary is $33,814; the average out-of-state salary is $59,586.

You get about twice the salary for going out of state. If you want new grads to stay here based on financials alone, you'd better look at grants to double their salary, not tax breaks. But in the end, as Jonathan Roos' editorial illustrates, people place greater weight on personal reasons for staying or leaving Iowa: wanting to live near family, desiring an urban atmosphere, and so on. If someone has always wanted to live in New York, I doubt if even a New York salary could tempt them to live and work in Hills. Our budget is already strained to the maximum, this law will put a great strain on it with very little gain to the targeted taxpayer, even if it does survive constitutional scrutiny under the first age discrimination suit brought by a 30-year-old. This is a silly, silly idea.



State 29 agrees with me on these.

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Greenman and Theresa are both quitting smoking. They haven't killed each other yet. Follow the saga.

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Homercles notes Invasion Iowa will be aired soon.

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The Press-Citizen has this article on SPIT, the new theater group out of West High.

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Mathman reminds us it's RAGBRAI registration time. One of these days I've got to go along for the ride.

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Orin Kerr from the Volokh Conspiracy notes "Court Holds Legislatures Cannot Ban Obscene Pornography". It's an interesting analysis.

Meth and Sudafed

The Des Moines Register has another article. I understand the impulse to ban Sudafed and it's copycats from the shelves. No pseudoephedrine, no meth, right? But it's also one of the most effective sinus relief meds, and as someone who can at times average one to two such headaches a week (a wicked sinus/migraine combo) I'm against it. Ask me when I'm in the grip of one of those killer headaches, and I'm rather violently against it. I understand State 29's point about there being liquid meds that could substitute. Ever try to carry one in your pocket?



I'd like them to explore some of the ideas on changing anhydrous that are being batted around at Tusk and Talon. If it's possible to come at it from that direction, you'd keep a lot of people happy and inconvenience very few. Yes, farmers use the stuff. But it's so toxic it's carefully handled anyway, and I don't see them trying to carry it in their pocket. If not, the compromise solution discussed in the article seems okay: let retailers handle it, but you've got to show ID and they keep a database on it to preclude store-hopping. That's fine, I only need a box at a time anyway.

Legal Blogging

Two major cases in legal news:



In United States v. Pace, the US Supreme Court allows the practice of bringing a drug-sniffing dog to the scene of a routine traffic stop. The upshot: so long as they don't keep you longer than it takes to write a ticket, it's not a real search. If you've got to wait a few hours for the dog to show up, then it's the fruit of an illegal detention. Orin Kerr at the Volokh Conspiracy analyzes out one of the more interesting aspects of the case:

" . . . Justice Stevens had to distinguish the Court's 2001 thermal imaging case, Kyllo v. United States, in which Stevens had dissented. Kyllo held (more or less) that it is a search for the police to point an infrared thermal imaging device at the exterior wall of a private home. To reconcile the holding of Place with Kyllo, Stevens reasoned that the key was the nature of the information that surveillance method yielded. The thermal imaging device was used to obtain intimate details in the home, whereas the drug-sniffing dog only indicated the presence or non-presence of illegal narcotics."

He also points out that the approach to the analysis seems to be evolving:

"Under the traditional approach, the government could not invade your property without a warrant no matter what information it wished to obtain. Under the rationale followed by the Court today, the government may be free to invade your property so long as they only obtain "non private" information." This is particularly troubling in the context of computer searches and seizures. Can the police send a computer virus to your computer that searches your computer for obscene images, or images of child pornography, and then reports back to the police whether such images are on your computer — all without probable cause, or even any suspicion at all? The traditional answer would have been no: the police cannot enter your private property to search even for non-private stuff. But thanks to the increasing focus on the nature of the information rather than how the information is obtained, it's no longer so clear.

It bears watching. I wonder whether method will eventually have something to do with it: The dog sniff takes place outside the vehicle, it doesn't send anything into penetrate the vehicle exterior. The dog merely sniffs scents eminating from the car. On the other hand, the infrared scanner sends beams into the house to scan it, and the computer virus scenario has the feds actually invading your computer, albiet electronically. If I were a judge, I'd split the hairs thusly: Actual invasion, either tangible or intangible + specific information obtained = unreasonable search absent another applicable exception.



I saw on How Appealing that the US Supreme Court also made news by what it won't decide - it rejected cert of Jeb Bush's appeal on the Terry Schiavo case. In other words, the ruling of the Florida Supreme Court that Bush's "Terry's Law" is invalid stands. Milbarge discusses the issue buzzing around the net: Is her husband trying to get rid of her in order to keep the insurance money (About $1 million. He's not entitled to it if they divorce so he can remarry - it's my understanding he has a girlfriend - but he will inherit it if she dies). His take:

"First, it's hard for me to judge the man; to him his wife is dead and he wants to move on with his life. Second, the trial judge found as a fact that Terri wouldn't have wanted to be kept alive in the state she's in. Like many of these cases, we can't be 100% sure of that, but that's not what the law requires. The trial judge heard the testimony and weighed the evidence, and without having looked too deeply at this, I'm willing to defer to that judgment. If you assume it's right, though, it's her parents who are going against her wishes and prolonging her sufferring, which the judge found she wouldn't have wanted. I'll say again that this is a difficult and heartrending case, but there still has to be a decision in it."

I agree there has to be a final decision based on her wishes. And various court-appointed guardians have concurred with the husband's position. However, it still looks very bad when there's a monetary gain and a personal gain. According to Abstract Appeal's very extensive, non-partisan site, the Court did entertain a presumption in favor of life:

The Schindlers did appeal, and the Second District determined that while a surrogate decision-maker should err on the side of life, the trial judge had sufficiently clear and convincing evidence to determine that Terri would not wish to continue the life-prolonging measures she needs to live.

The only thing I would have done differently is to appoint a guardian ad litem to advocate purely for Terri. Abstract Appeal indicates that Florida law does allow for it, but the trial judge felt it would be cumulative:

Under these circumstances, the two parties, as adversaries, present their evidence to the trial court. The trial court determines whether the evidence is sufficient to allow it to make the decision for the ward to discontinue life support. In this context, the trial court essentially serves as the ward's guardian. Although we do not rule out the occasional need for a guardian in this type of proceeding, a guardian ad litem would tend to duplicate the function of the judge, would add little of value to this process, and might cause the process to be influenced by hearsay or matters outside the record.

I think it would've acted to stem some of the public outrage on the case, though I recognize that this is said with the benefit of a significant amount of hindsight.

Stupid Internet Quiz #7563

Via the Yin Blog:









take the WHAT INTENTIONAL TORT ARE YOU test.




and go to mewing.net. because law school made laura do this.





Yep, I can go anywhere I want. And nothing short of an armed officer with a restraining order will stop me. So there. Nyah.

More Iowa Blogginess

In Technoratiing my site, I discover I'm being linked to by Iowa bloggers I didn't know existed. Cool! So thanks to Mute Complications and Gradual Dazzle (who's got an awesomely colorful template), and I'll be needing to revise my blogrolls soon. But via Mute Complications I've discovered four pages of Iowa blogs on Globe of the Blogs. I'll have to sort through and see which are defunct and which are active.

Comics In Action

If you're in Iowa City, don't forget to head over to the Mill tonight for Comics in Action. No, it has nothing to do with Batman. The info:



• What: Comics in Action, an improvisational comedy troupe.



• When: 9:30 p.m. Tuesday.



• Where: The Mill Restaurant, 120 E. Burlington St.



• How much: $3 cover.



• Information: Call 319-360-2678.



Brian Tanner, aka Agent Mojo, will make an appearance. He's slated to play Tesman in Hedda Gabler. Please note the correct time of 9:30, Brian says the Press-Citizen got the info wrong and posted it at 9:15. God forbid anyone get there early and actually be forced to down an extra glass.

More Englert Stuff

Greenman does more digging on the Englert issue. He comes up with a discussion on the topic in the transcripts from the minutes of the meeting of the Johnson County Board of Supervisers in June of 2002. It's where the project is making a pitch for Vision Iowa funds. One bit I find interesting:

Schamberger: I think you might note too the expansion, the community demand, includes this really creative visionary concept of the Iowa City cultural incubator. It’s really what the 3rd floor of the Englert is going to be utilized for. That is going to be really Johnson County non-profit arts and cultural organizations to have office space. People like the Cultural Alliance, like Arts Iowa City…



Zimmer: Jazz Fest, Arts Festival, Iowa City Community Theater. It’s also going to be an incubator for smaller organizations that don’t need office space, but need support.



Schamberger: To grow from. That’s really what the 3rd floor, so it will be impacting several…



Zimmer: Absolutely.

Correct me if I'm wrong, but isn't this the space they're now trying to rent out for corporate offices?



UPDATE:

Dweeze's letter gets published in the Press-Citizen.



Matt points out their mission statement might need revising:

The mission of the Englert Civic Theatre, Inc. is to own, maintain and operate the Englert Theatre as a community arts center and performance space, enhancing the vitality of Iowa City's historic downtown by preserving its last historic theater.



The Englert Civic Theatre, Inc. will provide diverse programming, educational opportunities, and exposure to the performing and visual arts. Our focus will be to highlight the talents of local performers, artists, and ensembles.

Way More Ironic than Bad Weather

While I'm blogging away trying to keep up with all the interesting stuff out there, the Press-Citizen prints a press release in the guise of an editorial. Slow news day, guys?



(The title for this post is derived from an old complaint that half the things listed in Ironic aren't actually examples of irony.) I mean, a black fly in your Chardonnay? Are you serious?

Around the 'Net II

Don at Tusk and Talon discusses the mysteries of Google:

While perusing our incoming referrals via Sitemeter, I like to check the various Google and other searches to see how people who aren’t regular readers find us. And I spot one in which the search phrase was,

“causes of rectal hemoraging”

Hmmm. I don’t recall any column about this, unless, maybe it was something Chad was interested in. Chad’s our designated authority on medical issues and stuff; yeah, that’s the ticket.

Lately, I've had a couple of people find my site by querying for Will Kenyon's blog, or Comics in Action, or "Drug Defense No Constructive Possession". Understandable. But then I get people interested in:



Random Sexual Questions



Movie Slyvia



and I think they'll be disappointed.

_____________________________________

Dave Barry points out SIGN OF THE APOCALYPSE NO. 34,918 - Digital Bagpipes.

_____________________________________

SpongeBob isn't out after all. Dobson was protesting against exploiting SpongeBob in a tolerance video, not the cartoon itself.



OTOH (On the other hand, Nelle ) Tinky Winky has no one else to play with. Though I've always had my suspicions about Ernie and Bert, the eternal "roommates."



Via Salieri and Instapundit.

_____________________________________

Instapundit also notes this New York Times article that seems to imply the internet is responsible for perpetuating child porn. I read the article as saying that the 'net improves the opportunity for those who already have the impulse. It does rather imply that it is responsible for creating perpetrators where none existed before:

I asked about the Internet, whether it may bear any causal responsibility along the path toward offending. ''It's a fairly complicated issue,'' Berlin said, and one for which there appears to be, again, no solid research. ''I wouldn't go so far as to say that the Internet creates desire, but I do think it is creating significant difficulties.'' To some extent, he explained, it is merely a ''new and different vehicle'' for those who would offend against children anyway. But it ''provides temptation for some who might not otherwise have crossed the line.'' He added: ''There are three areas of concern. First, the illusion of anonymity -- an illusion because Internet use can be easily tracked -- leads to disinhibition. Second, there's a blurring of fantasy and reality. There's someone at the other end of the Internet conversation, but it's not quite a real person; there's a feeling of playing a game that can lead to actually doing what one otherwise wouldn't. Third, the easy accessibility can facilitate'' moving over boundaries.



Over the past decade, with the surge in Internet use, there has been no spike in the overall number of cases of sexual abuse against children. (There has been, it appears, a significant decrease, attributed by some to the success of harsher sentences and offender registries and by others, in part, to the possibility that those sentences and registries discourage victims, who tend to know their abusers, from reporting the crimes.) But Berlin's concern was echoed by Prentky when he described the Internet as ''a catalyst for fantasy and dangerous if the control over behavior is markedly impaired.'' And by David D'Amora, Patrick Liddle's boss and the head of the Center for the Treatment of Problem Sexual Behavior, who has about 800 child sexual abusers under his watch in Connecticut, when he talked about the Net's abundant porn and disembodied chat-room conversation as a ''disinhibitor.''

Easy access to porn has been blamed by many as the "cause" of various socially undesirable sexual interests. Witness the recent series of articles on Randy Brown in the Des Moines Register, that as I blogged on earlier seem to make him out as a victim of the internet.



Matthew Yglesias has this to say:

But, clearly, we had child molestors before we had the internet. And if child abuse is dropping while internet use is skyrocketing (and we all know that pornography is a hefty part of that use), then it's really, really, really hard to see why we should think that the internet and its disinhibiting properties are part of the problem. I mean, if one day low alcohol beers show up on the marketplace, their sales skyrocket, and the incidence of alcoholism starts to go down, then our hypothetical alcoholic's claims don't seem nearly so absurd.

_____________________________________

Greenman enters the dialogue on the Englert, linking to a video made at the beginning of the project which should help show the original intent of the venue.

_____________________________________

For those who want more on the "are women statistially handicapped at math and science" issue, there are some good posts at the Volokh conspiracy here and here, both discussing the statistics and science behind the issue. Armando at Daily Kos has a post up here, finding Summer's remarks inappropriate regardless of accuracy due to his position and the topic of the conference. And Instapundit notes: Though it seems that it's okay to talk about sex differences, so long as it's done in a way that reflects badly on men.

_____________________________________

Okay, that's about half my virtual "clippings pile" for the week. Why is it half the time there's not much to write about, and the other half you're snowed under an avalanche of information?

Olly Olly Oxen Free

I found my sidebar. It was driving me nuts - why could I see it at home on dial-up but not at work on a high-speed connection? Then I scrolled all the way down -at the bottom. Problem fixed. Never mind.

Around the "Net

Instapundit previews the new warning labels for high school science classes.

_____________________________________

Crimlaw features the latest permutation of the Nigerian scam. Read it with a British accent, if you please. They also note the latest on the Michael Jackson trial in their "around the web" roundup: a motion in limine to prevent the prosecution from referring to the child as "the victim" or telling the jury that the prosecuting attorney represents "the people." In my opinion, the first one is odd, but semantically correct as the victim isn't a victim unless there was a crime. However, their solution of referring to him as a "complaining witness" isn't exactly right either, as it also has a negative connotation. Perhaps they should go old-school Agatha Christie and call him the "Witness for the Prosecution." The second objection is not so meritorious, the attorney does represent "the people." It's also rather pointless. Somehow I can't see a juror saying to themselves: "Oh, I'd vote not guilty, but this is my lawyer and if my lawyer tells me he's guilty, then he must be guilty. I guess I'll change my vote."

_____________________________________

Professor Yin's got the scoop on the new Battlestar Galactica. When I was a kid I liked the original, pretty much because I thought Dirk Benedict was kind of cute and it was the 80's - I really didn't know any better. I have caught one episode of the new version. It's a real show, with actual plot lines. Go figure.

_____________________________________

Homercles links to this article: A 40-year-old woman held sex and drug parties with teenage boys, telling police she wanted to be a "cool mom," authorities say. His comment: "Don't mind me, I'm just compiling evidence for the next time someone says schools are failing because of inept teachers." Yep.

More Englert Blogging

Nelle put this in my comments, but I think it needs to go up front:

I wish I could comment on Dweezes sight, because 29 just made a comment that I would like to respond to.



I just recently got a flier in the male from the Englert of the artists that will be performing there. NONE of the artists or theater groups are from our local area. I can understand bringing in other shows and performers, but when you make more of a big deal out of them and totally ignore any local groups, I feel that is wrong. ICCT was the biggest pusher for saving the Englert. Having that theater group be one of the the first local groups to perform in the space would be great P.R. for both groups.



We need to do a little shouting. People who donated to the Englert with the idea that ICCT would benefit as well have been miss lead.



Nelle

Dweeze's post is here, to to the comments for 29's response here.



I have to say that while I have nothing against Kottke, I agree with Nelle. As a disclaimer, I need to point out that I am on the ICCT Board. That board is making every effort not to join into the fray publicly, in hopes that an agreement can be worked out. Drafts are in the works, etc., and I'm not going to comment on that at this time. Follow the story starting here and here on Dweeze's site if you want the inside scoop on what happened in the past. I wasn't there, so I can't tell you anything other than the documents that I've seen support his statements.



So this is strictly personal: I count myself in the ranks of the disillusioned. Remember this article?

The Englert is envisioned as a low-cost venue for more than 50 community-based performing groups that have been identified as probable users.



We anticipate having over 120 events per year with use by both nonprofit groups and commercial promoters.



Iowa City Community Theater would give almost all of its performances there.



Almost all of the other performances are expected to be family-oriented, including other amateur theater productions, community music ensembles, dance, barbershop and other choral groups, receptions, concerts by touring musical groups, and lectures.



A perfect example of the latter occurred last Saturday at Irving Weber days, when Bob Hibbs narrated a slide show about the history of Iowa City. As far as we know, that was the first non-film use of the Englert since Gloria Dei held its services there for 21 months after the church was destroyed by fire on Sunday, April 1, 1962.

Or how about this one?

Q. I'm still unclear about what types of things I'll be able to see at a renovated Englert.



A. It's a long list - more than 50 local groups have indicated an interest. It will be the Iowa City Community Theatre's residence, as well as being available to all other troupes. There will be lectures, readings, radio broadcasts, slide and travel presentations, dance performances, auctions, fashion shows, meetings, weddings, receptions, fundraisers and award ceremonies. Not to mention all types of music performances, including "popular operas."

There's tons more out there, but you get the point. Local artists were promised that the theater would be a showcase for community talent. ICCT was to be the 'resident theater', giving almost all of its performances there. Other groups were similarly promised preferred statuts, as it was to be a community project and a community theater. On the strength of these promises, local artists pitched in and raised a ton of money for the project. Iowa City Community Theatre made substantial donations - enough to evicerate it's running capital - on the strength of these representations. So what have we seen booked?

Leo Kottke

Thursday, January 20, 2005 at 8PM



The Second City Touring Company

Friday, February 18, 2005 at 8PM



Big Bad Wolf

The Second City's Children's Theatre

Friday, February 18, 2005 at 10AM



Three Tales with Tails

MadCap Productions Puppet Theatre

Sunday, February 20, 2005 at 2PM



1964 The Tribute

Thursday, February 24, 2005 at 8PM



Gala Grand Opening featuring Nadja Salerno-Sonnenberg and Anne Marie McDermott West Music Company, Sheraton Hotel Iowa City, University of Iowa Hospitals & Clinics

Wednesday, March 2, 2005 Reception at 6PM, Ribbon Cutting at 7:30PM, Performance at 8PM



Corduroy

TheatreworksUSA

Saturday, March 19, 2005 at 2PM



Leon Redbone

Saturday, April 2, 2005 at 8PM



Tom Sawyer

American Family Theatre

Saturday, April 23, 2005 at 2PM



Beauty and the Beast

American Family Theatre

Sunday, May 22, 2005 at 2PM



The Elves and the Shoemaker

MadCap Productions Puppet Theatre

Saturday, May 22, 2005 at 2PM and 6PM

Do you see anything with the words "Dreamwell," "City Circle," "Iowa City Community Theatre" or even "Riverside" or "Old Creamery" on it? Nope. Why is that? In a nutshell, the rates:

The base rental rate falls under two catagories. Not-for-profit companies can rent for $800 for five hours and for-profit companies can rent for $1,000. This includes the stage, all basic theater sound, lighting and rigging equipment, and use of the box office. A list of extra equipment such as light scrollers, man-lifts and labor costs will be provided on demand. A not-for-profit rental rate of $600 can also be given under work light conditions only with no further technical elements required for rehearsals.

To my knowledge, none of the local theaters can afford these rates. While I understand that the Englert board indicates local theaters should "get them a proposal," I've seen little effort on the part of Eric Kerchner to meet anyone halfway.



I have no problem with another professional touring facility in the area. I see some quality acts here, that will expand the opportunity to attend artistic events in Iowa City. If that's all there is to the analysis, I'd be satisfied. If the funds for the Englert had been raised with the idea of a mini-Hancher or Paramount in mind, I'd be the first to say that the local artists are just whining.



But they weren't. The focus on the Englert project began as local theater and arts. It changed mid-stream and many of the original donors are feeling utterly abandoned. That's the driving force behind the letters you're seeing.



For myself, I wasn't involved with theater at all at the time the Englert project got off the ground in 2000. I gave some to the project, but not enough to feel entitled to much. But the chance to play on the same boards Sarah Bernhardt once graced was in the back of my mind in 2003 when I auditioned for my first post-high school show, and started devoting a gagillion volunteer hours to local theater. Theater is addictive enough that I've kept on even without much hope of ever realizing that vision, but I can imagine the disappointment and anger of those who devoted hundreds of manhours and personal funds to raising money for yet another venue that will cater to out of town touring companies.

What's Up with That?

Can anyone explain why it is Blogger seems to drop my sidebar out so often? Not the artwork, the links. It's not like they're enormous to load or anything, so what's up with that?? Is there anything I can do to change it? It's ticking me off.

Sorry I'm Late

But I've got a really good excuse.

William Albert Kenyon 2004-2005

____________________________



Little Will Kenyon passed away last night





When I first saw the site, I was certain the kid would make it. He was such a fighter. I thought it would be so cool - when he got older, they could show him the blog about his first year of life, maybe do a few searches and see from the links how many people that he didn't even know followed his story and prayed for him.







Please say a prayer for his parents and family.



____________________________

Another Stupid Quiz

You are a Mod. Yeah baby.



What kind of Sixties Person are you?
brought to you by Quizilla

Friday Round-Up

Dweeze is going to restart his Englert postings. He wrote a letter to the Press-Citizen, which he excerpts:

"It’s sad, and telling, that Mr. Kershner considers Leo Kottke to be the perfect Englert show. Considering the number of people in the Iowa City area who donated time and money under the assumption that the Englert would be a community performance space, I imagine there are far more people in the area that would consider the perfect Englert show to be one involving any of the area musicians, dancers, actors, singers, and others that the Englert Board promised would be performing at the facility."

He's commenting on this article in the Press-Citizen.

_____________________________________

Icky green stuff growing in University of Iowa housing makes the Daily Iowan. I suppose, on one level, this is news.

_____________________________________

Dave Barry's got all the coverage you want on the Trump wedding.

_____________________________________

How Appealing notes that Former Judge Donald Thompson is now facing felony indecent exposure charges. I blogged on this earlier with the single word EEEEWWWW. For the icky, icky details go here.

_____________________________________

Instapundit and The Volokh Conspiracy say SpongeBob's been outed. I have my doubts, though. I mean, square pants?



Says Eugene Volokh:

"I saw the shirt in the window of a West Hollywood T-shirt store that catered to a gay clientele, and it said:



Tinky Winky Made Me Do It."

_____________________________________

Iowa Geek points out responses by bloggers Ali and Mohammed to the allegations inthis article in the NY Times questioning whether they're truly "typical Iraqis" because they're a tad on the pro-American side. As if Riverbend has the monopoly on Iraqi opinion? WTF? They point out several problems with the article.

_____________________________________

Too much homework? So sue 'em. Overlawyered has the story.

_____________________________________

The Press-Citizen points out that the new Jib Jab video had featured Iowa as a blue state on a background map. Whoops.

_____________________________________

Professor Yin and Matt remind us to keep the prayers and good thoughts up for little Will Kenyon.

He's a fighter, but geez, has he had it rough.

_____________________________________

Matt also says the Hamburg Inn is going to be featured on The West Wing. Cool. For those not in the IC loop: it's a 50's-style diner with all the good, fattening stuff. Over the years, it has played host to, among others, Ronald Reagan, Bill Clinton, and apparently Martin Sheen.

_____________________________________

Wonkette has inaugeral blogging. My favorites: "And here we thought "touch my armadillo" was a slang term." and "You make the first "sleeps with the fishes" joke...."

_____________________________________

Todd Zywicki and David Bernstein post in-depth on the Larry Summers flap at Harvard. My earlier posts here and here. I particularly like Zywicki's casual comment regarding the use of testing statistics to prove males are genetically superior in math and science:

"A reader points me to the federal Bureau of Prisons, which, for what it is worth, reports that 93.2% of inmates in the federal prison system are male."

Oh, the extrapolations!

_____________________________________

Also at Volokh, Orin Kerr posts this: ACLU Considers Firing Board Members for Criticizing ACLU. No, I'm not giggling. Much.

_____________________________________

TalkLeft posts on the Jury Pool from Hell:

Defense attorney Leslie Ballin called it the "jury pool from hell."

The group of prospective jurors was summoned to listen to a case of Tennessee trailer park violence. Right after jury selection began last week, one man got up and left, announcing, "I'm on morphine and I'm higher than a kite."



When the prosecutor asked if anyone had been convicted of a crime, a prospective juror said that he had been arrested and taken to a mental hospital after he almost shot his nephew. He said he was provoked because his nephew just would not come out from under the bed.



Another would-be juror said he had had alcohol problems and was arrested for soliciting sex from an undercover officer. "I should have known something was up," he said. "She had all her teeth."

There's more.

_____________________________________

SCOTUSblog indicates Jane Roe is back, asking for her case to be overturned. Facetious question: does she still have standing once the kid's reached the age of majority?

_____________________________________

Brent at Cop Talk says North Carolina declared a state of emergency - because it snowed one inch. Now I'm giggling.

_____________________________________

From Slashdot: Spammers sue spammee for getting them banned from the ISP. If there is justice, they'll so lose. And an inkjet printer modified to "print" human skin for transplants. Instant tattoos.

_____________________________________

Salon says that Norwegians interpret President Bush's "Hook 'em, 'horns!" hand gesture as a salute to Satan. So you're telling us that they pretty much didn't alter their opinion of him one way or the other?

_____________________________________

Jeff at Tusk and Talon expands on State 29's thoughts about inhibiting meth production.

Gotta Stop That!

Ever write an excrutiatingly long post, hit "publish" and have blogger eat it instead of posting it? Happens regularly, and it's absolutely irretrievable. There's no crying in baseball and "undo" in blogger. I must stop forgetting to copy the post before hitting "publish". I almost lost the last one, and I'd be d*mned if I was gonna rewrite that puppy.

Excrutiatingly Long Legal Post of the Day

The new decisions of the Iowa Supreme Court are up. Only two this time, both dealing with the civil detention of sexual predators. The first, IN RE DETENTION OF DAMON MONTEZ WILLIS, reiterates the standard regarding a "recent overt act" discussed in In re Detention of Gonzales, 658 N.W.2d 102, 103-04 (Iowa 2003). Basically, the argument goes: In mental health civil commitments, due process of law generally requires some recent overt act to show the committee is unfit to be in society (danger to self or others, etc.) You can't use remote actions (i.e. my past conviction) as a "recent act" to show that proclivity. The problem? The defendant's been in jail since, and if our penal system works well didn't have a chance to commit some sexual abuse while incarcerated. The Court's take on it?

"[A]bsence of sexually predatory acts in a setting of secure confinement does not paint the same picture as the absence of such acts in a normal life situation. We have generally upheld the statutory scheme presented by Iowa Code chapter 229A against substantive due process challenges. See In re Detention of Garren, 620 N.W.2d 275, 282-83 (Iowa 2000)."

The second and third issue involved procedural stuff. The court reiterated that the requirement that the sheriff give 90-day notice to the attorney general prior to the expiration of the sentence of a person who's a candidate for this civil commitment proceeding is not a procedural due process right of the defendant. Instead, it's just supposed to allow the State a "heads up" that a petition could be filed. So the lack of the notice doesn't render the commital invalid. The court also addressed a quirky situation in this case: The jury found the guy guilty of assault with intent to commit sexual abuse. The civil commitment was filed after the verdict but before sentencing. The defendant claimed that the commital petition was invalid because he hadn't been "convicted" per se at the time it was filed. The court's take: not so much.



The second case, IN RE THE DETENTION OF CAROL PALMER, is more complex, it involved the ability of the State's psychiatrist to testify to an arguably 'ultimate issue' question: "[W]ere you able to formulate an opinion as to a reasonable degree of professional certainty about whether the respondent’s pedophilia makes it likely that he will engage in predatory acts of a sexually-violent nature if he’s not confined in a secure facility?" The Court held that the State of Iowa is not a strict adherent to the ultimate issue rule, pointing out the Court's prior holding in Grismore v. Consolidated Products Co., 232 Iowa 328, 5 N.W.2d 646 (1942):

"There is no sound basis in law, reason, or common sense for decisions that a witness may state his opinion as to what “may,” “might,” “could,” or “probably did” cause something, but may not give an opinion as to that “did,” “will,” or “would,” cause it. The true rule is, and should be, that the witness may use such expression as voices his true state of mind on the matter, whether it be possibility, probability, or actuality. To insist that a witness confine his testimony to an expression of possibility or probability, when his real judgment or conviction is actuality, or fact, is unfair to the witness and the jury, and unjust to the party offering the testimony."

However, it indicated that the ruling did put limits on such testimony, again quoting Grismore:

"It should be received only as to such matters as are the proper subject of expert testimony. No witness should be permitted to give his opinion directly that a person is guilty or innocent, or is criminally responsible or irresponsible, or that a person was negligent or not negligent, or that he had capacity to execute a will or deed, or like instrument, or . . . whether [probable cause existed]. But the reason is that such matters are not subjects of opinion testimony. They are mixed questions of law and fact. When a standard, or a measure, or a capacity has been fixed by law, no witness whether expert or non-expert, nor however qualified, is permitted to express an opinion as to whether or not the person or the conduct, in question, measures up to that standard. On that question the court must instruct the jury as to the law, and the jury must draw its own conclusion from the evidence."

The Court then enters a close analysis of the question. I don't have the time to summarize, but I'll excerpt for brevity. (Yep. The stuff in the opinion is much longer. And you think my blog makes your brain bleed?):

The most troubling problem with questions and opinions couched in terms of legal standards and conclusions, and the primary underlying reason they are often inadmissible, is that they “may be misunderstood by the witness and the jury if they do not know the law’s definition of” the legal standards used. . . .



If there is a danger of the jury misunderstanding the legal terms used, not only may the opinion be excludable under rules 5.701 and 5.702 as being not helpful to the jury, but it may also be excludable under rule 5.403 if the probative value of the opinion is substantially outweighed by the danger of misleading the jury. . . .



Generally, the best resolution for this problem is for the questioner to break down the legal terms into its factual elements. . . .



This question essentially asked whether Palmer met one of the elements of the statutory definition of “sexually violent predator.”



The Sexually Violent Predator Act (SVPA) defines “sexually violent predator” as



a person who has been convicted of or charged with a sexually violent offense and who suffers from an mental abnormality which makes the person likely to engage in predatory acts constituting sexually violent offenses, if not confined in a secure facility.



Iowa Code § 229A.2(11). The definition can be broken down into three main elements: (1) commission of a “sexually violent offense,” (2) “mental abnormality,” and (3) “makes the person likely to engage in predatory acts constituting sexually violent offenses if not confined in a secure facility.” Id. In this case, there was no dispute that Palmer had committed a “sexually violent offense” and that he had a “mental abnormality” as defined by the statute. The third element of the definition was the fighting issue at trial.



The third element of the definition contains within it three statutorily defined phrases: (1)“likely to engage in predatory acts of violence,” see id. § 229A.2(4) (defining the phrase as “the person more likely than not will engage in acts of a sexually violent nature”), (2) “predatory,” see id. § 229A.2(6) (defining the term as “acts directed toward a person with whom a relationship has been established or promoted for the primary purpose of victimization”), and (3) “sexually violent offense,” see id. § 229A.2(10) (defining the phrase as any violation of chapter 709 or various other sexually motivated offenses). . . .



Yet, upon close examination of the complete record, Palmer’s objection was that the witness was being asked to render an opinion by utilizing the statutory standard of “likely to engage in predatory acts constituting sexually violent offenses.” We must therefore consider whether this specific ground makes the testimony sought by the question “otherwise” inadmissible. . .



[T]he statutory definition of “likely” is “more likely than not.” Iowa Code § 229A.2(4). This definition is essentially the same as the common usage of the term. . . .



However, the same rationale does not apply to the two remaining statutory terms used in the question posed to Dr. Salter, “predatory” and “sexual violent offense.” These statutorily defined terms have “a separate, distinct and specialized meaning in the law different from that present in the vernacular.” . . .



Palmer’s objection did not address the State’s use of these two distinct legal terms in its question as ground for error and did not “alert[] the trial court to the principle sought to be invoked.” Id. “‘Care must be taken that the objection strike at the very heart of the infirmity.’” Id. (citation omitted). The proper objection would have been that the question called for a legal conclusion, for an opinion that was not the proper subject of expert testimony, Schilte v. Franklin Toy Trucks, 265 N.W.2d 725, 730 (Iowa 1978), or for an opinion whose probative value would be substantially outweighed by the danger of misleading the jury, Iowa R. Evid. 5.403. More importantly, Palmer was required to identify the specific legal terms that rendered the question objectionable. We conclude the objection was insufficient to preserve error in this case.



Moreover, even assuming that error was preserved, the result would be the same because no prejudice resulted from Dr. Salter’s opinion. . . . No prejudice results from erroneous admission of evidence on an issue that is undisputed. . . .Palmer never asserted that any future acts he might commit would not meet the legal definition of “predatory” or “sexually violent offenses.” Rather, his argument was limited to challenging the likelihood that he would reoffend. Thus, the problematic part of Dr. Salter’s opinion went to what amounted to an undisputed issue in the case and resulted in no prejudice."

In other words, the prosecutor didn't ask the question correctly, but the defense counsel didn't give the right objection, and in the end it didn't hurt anything anyway, so in layman's terms, it's a push, no blood no foul, and the committal stands.

What's in a Name?

A mini-rant in the Daily Iowan against the practice of changing your name upon marriage. She's "horrified" women would even consider such a thing. She likens it to the pre-Civil War era custom of forcing slaves to adopt their master's names.



I agree that imposing a name change requirement on a woman or a man upon marriage would be a forced depersonalization at a very basic level. Women, and men, should think long and hard about what they want for a marital name . . . and most do.



It's a deeply personal choice.



Get that? Choice.



Some agree with the author - your name is your name, period. You should be proud of it. To consider changing it means you've been brainwashed by the white, patriarchal society in which we were all raised. Others feel that taking the same name as their partner, whatever that name will be, is a symbolic act of starting a new, cohesive family unit. Others just want what sounds best, to heck with history. Couples combine, hypenate, or simply choose a name. And it's not always the man's. (She snipes at the number of couples with only one marital name, but how does she know it's his? Did she ask? I know she's playing the percentages, but still.)



I don't know whether it occurs to the author that the act of changing one's name - or not changing it - is a matter of personal choice. To presume that I, or any reader of a college newspaper, is so uneducated as to not take into account the potential symbolism behind my choice of a name is insulting. To force her cultural values into my personal choice is wrong.



One caveat: I was always annoyed when people would address correspondence to me as "Mrs. (His first name) (His last name)." Taking on a familial last name is one thing, but why would anyone presume I'd taken his first name? I know it's the old traditional sense of addressing an envelope, and I don't have a problem with anyone else choosing to use this for themselves. But if you're going to the trouble of handwritten corresponence in these electronic times, don't you think you should take the care to address the envelope in the manner to which the recepient would like to be referred?

Theater Coverage

The Press-Citizen actually has articles on local theater-type events this time around: one on the upcoming debut of Guys and Dolls, and the other on the appearance of Comics in Action at the Mill. There's also an article on the new Riverside production of "The Drawer Boy".

Yep.

Improv Alert

Got this in my inbox:

In case you missed last time or want to see us again, Comics in Action will be at the Mill again this next Tuesday the 25th at 9:30 for $3 cover!



Hope you can make it, forward on to anyone you think will be interested in having a fun time!

They did a really nice job last time, if you're up for some fast-paced comedy.

Interesting Point

Jennifer posts a discussion topic:

This one really only applies to bloggers who use their real names...to what extent do you censor yourself on your blog so that your grandmother/boss/high school boyfriend doesn't read something unflattering or risque?



And--theoretically--would you be interested in a collaborative blog where you could anonymously post whatever random nonsense pops into your head?

Hell Heck yeah, I self-censor.



Seriously, I generally refrain from mentioning other people, but not censor my prose. I try to stay off people's lives, because I'm essentially "outing" them as well as myself. If I've got permission, or if I use no names or initials or anything, I will occasionally post about stuff going on in my life, but I try to do it sparingly.



I don't watch my language much, or keep off sexual topics, or moderate my political viewpoints - which are, coincidentally, moderate enough as it is. It's my blog and if you don't like the language, don't read it.



All in all, it does stifle the creativity a tad. Some of the funniest stuff I can think of involves exposing the foibles of close friends and relatives - particularly my own. Fine if you're totally anonymous and they are too, everyone likes a good story. Not so fine if you hurt someone you care about in such a public arena. I don't know how humor writers like David Sedaris do it without having their families take out a contract on their lives. Mine would. They know people.

Speaking of Jokes

Saw on Iowa Geek that Jib Jab's got a new video out: Second Term. I still like the first one - that was freaking hilarious - but this is pretty funny, too.



Dems: Make sure you're not drinking coffee when you watch this. You'll spit it out your nose. This one's just for you.



Reps: Take your blood pressure meds first.