Barbara Ann Radnofsky, a Democratic candidate for Texas attorney general, claims a 2005 constitutional amendment designed to ban gay marriages actually bans all marriages.

The amendment, approved by the Legislature and overwhelmingly ratified by voters, declares that “marriage in this state shall consist only of the union of one man and one woman.” But the troublemaking phrase, as Radnofsky sees it, is Subsection B, which declares: “This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.”

Architects of the amendment included the clause to ban same-sex civil unions and domestic partnerships. But Radnofsky, who was a member of the powerhouse Vinson & Elkins law firm in Houston for 27 years until retiring in 2006, says the wording of Subsection B effectively “eliminates marriage in Texas,” including common-law marriages.

She calls it a “massive mistake” and blames the current attorney general, Republican Greg Abbott, for allowing the language to become part of the Texas Constitution. Radnofsky called on Abbott to acknowledge the wording as an error and consider an apology. She also said that another constitutional amendment may be necessary to reverse the problem. “You do not have to have a fancy law degree to read this and understand what it plainly says,” said Radnofsky, who will be at Texas Christian University today as part of a five-city tour to kick off her campaign.

While I don’t have any fancy law degrees, it’s pretty clear to me that the amendment does not endanger “marriage” in Texas.   The key word in the clause in question is “create.”  Given that 1) marriage existed in Texas before the amendment and 2) that the first clause in the amendment reiterates the existence of marriage, merely clarifying its definition, the subsequent clause rather clearly bans only the creation of analogous institutions.

Regardless, this controversy is amusing.

Story: Memeorandum.  Photo:  FlutterFly Events.

The next episode of OTB Radio, our BlogTalkRadio program, will record and air live from 5:30-6:30 Eastern.

Dave Schuler and I will talk about Sarah Palin’s comeback tour and ensuing controversies and President Obama’s Asia trip.  Alex Knapp will join us to provide his legal expertise on the Khalid Sheikh Mohammed trial and Steve Verdon will stop by to discuss the latest national debt milestone. Other topics will likely come up as well.

We’ll also be taking calls at (646) 716-7030. Owing to a high trolls to legit callers ratio, however, we’ll be using the BTR chat feature to screen for legit calls.

You can play the show, subscribe to its feed, or share it with your friends via the widget below:

(Note: The playback automatically updates to the most recent show available. Older shows can be accessed at the show archives.)

I missed this story last week, but apparently Pfizer is abandoning its New London headquarters, and the land that it used the power of government to steal from Kelo et al. now lays fallow.

Susette Kelo’s little, pink house in New London, Conn. — like the houses of all her neighbors — is now a pile of rubble, overgrown with weeds. But Pfizer, the company that called for the demolition in order to build a new research and development plant, announced Monday it is packing up and leaving town in order to cut costs after its merger with fellow drug-giant Wyeth.

[...]

The Fort Trumbull neighborhood Pfizer had bulldozed today consists only of “weeds, glass, bricks, pieces of pipe and shingle splinters,” according to the Associated Press. Nobody has built the high-rise hotel or the luxury condos the city’s planners had envisioned. The credit crunch and housing collapse took the air of out of that grand plan.

And Pfizer’s sparkling R&D facility that was supposed to anchor the city’s “rejuvenation?” It’s being shuttered as a cost-saving measure following Pfizer’s merger with Wyeth. Some of the 1,400 jobs there will move across the river to Groton. Some will be terminated.

The best-laid plans of central planners, it seems, have once again gone awry-unless you look at it from Pfizer’s perspective.

The Hartford Courant reports Pfizer may sell the building and the land, which it got for nearly nothing. Or it may lease it out. So, the drug giant still gets the profits from the government’s taking. But for New London? No more R&D jobs. No development of Fort Trumbull. Just some rubble where families once lived.

Despicable.

Update: I was on vacation last week, so I totally missed the fact that Steve Verdon covered this already. Still, we can keep being mad, right?

Brookins cartoon courtesy Richmond Times-Dispatch via Doug Mataconis.

In my initial posting on the Khalid Sheikh Mohammed Trial, I asserted that “there’s an incredibly good chance that Mohammed and his comrades will go free.  The fact that KSM was repeatedly waterboarded would seem to taint any subsequent evidence, including his own confession.”

This was based on the presumption that the whole point of trying KSM in a civilian court was to demonstrate that we’ve changed our evil ways and would allow accused terrorists to avail themselves of the finest justice system in the world.

Not so much, it seems.   Jim Geraghty:

Sen. Charles Grassley, R-Iowa: “I don’t think you can say that failure to convict is not an option, when we have juries in this country.”

Attorney General Eric Holder: I have thought about that possibility. Congress has passed legislation that would not allow the release of these individuals in this country. If there is not a successful conclusion to this trial, that would not mean that this person would be released into this country…

Grassley: My understanding is that if for some reason he’s not convicted, or a judge lets him off on a technicality, he’ll be an enemy combatant, so you’re right back where you started.

I can’t find the full transcript online elsewhere, so don’t have Holder’s retort.   But if the defendants have zero chance of being released, this is a show trial and a sham.   That’s frankly much worse than the status quo, much less a military tribunal.

Marc Ambinder finds a hidden news story in this WaPo report by Perry Bacon:

Administration officials say they expect that as many as 40 of the 215 detainees at Guantanamo will be tried in federal court or military commissions. About 90 others have been cleared for repatriation or resettlement in a third country, and about 75 more have been deemed too dangerous to release but cannot be prosecuted because of evidentiary issues and limits on the use of classified material.

He correctly notes that, while Bacon’s piece focuses on the shifting mood of the Senate, the real story is that 75 of 215 Gitmo detainees — that is, more than a third of them — have been deemed “Fifth Category” types who will get neither a hearing nor a release.

This is remarkable, indeed, given the Obama administration’s public position on Gitmo.  Obama made it a point to order Guantanamo closed on his first full day in office and campaigned strongly against it.  But, once elected, he moderated his policy.

The reality is that we have these people locked up and have no  good options as to what to do with them. In many cases, they can’t be expatriated.  In others, there’s either not enough evidence to prove them “guilty” beyond reasonable doubt or said evidence is tainted by treatment deemed appropriate for foreign terrorist suspects but not innocent-until-proven-guilty criminal defendants.  Releasing them into American cities would not only be dangerous but political suicide.

So moving them to a Gitmo in all but name is the least bad option.

via Spencer Ackerman

From left: Ali Abd al-Aziz Ali, Waleed bin Attash, Khalid Sheikh Mohammed, Mustafa Ahmad al-Hawsawi and Ramzi Binalshibh. (AP)

Responding to Attorney General Eric Holder’s explanation that Khalid Sheik Mohammed is being tried in civilian courts because the 9/11 victims were mostly civilians and because the attacks took place on U.S. soil whereas his compatriots who attacked the U.S.S. Cole would be tried before military tribunals since the attack was on a military target, Tom Maguire quips “[I]f the next batch of terrorists are clever enough to attack an elementary school will they be tried in juvenile court?”

More seriously, he points us to Pat Buchanan’s column asking “Are We at War — Or Not?”

Is it possible we have done an injustice to this man by keeping him locked up all these years without trial? For that is what this trial implies — that he may not be guilty.

And if we must prove beyond a reasonable doubt that KSM was complicit in mass murder, by what right do we send Predators and Special Forces to kill his al-Qaida comrades wherever we find them? For none of them has been granted a fair trial.

When the Justice Department sets up a task force to wage war on a crime organization like the Mafia or MS-13, no U.S. official has a right to shoot Mafia or gang members on sight. No one has a right to bomb their homes. No one has a right to regard the possible death of their wives and children in an attack as acceptable collateral damage.

Yet that is what we do to al-Qaida, to which KSM belongs.

We conduct those strikes in good conscience because we believe we are at war. But if we are at war, what is KSM doing in a U.S. court?

Buchanan goes on to give several historical examples, some more salient than others.  But his overall point about the dichotomy over how we’re dealing with terrorists vice how we deal with criminals is apt.  He continues:

Were not KSM’s Miranda rights impinged when he was not only not told he could have a lawyer on capture, but that his family would be killed and he would be water-boarded if he refused to talk?

And if all the evidence against the five defendants comes from other than their own testimony under duress, do not their lawyers have a right to know when, where, how and from whom Justice got the evidence to prosecute them? Does KSM have the right to confront all witnesses against him, even if they are al-Qaida turncoats or U.S. spies still transmitting information to U.S. intelligence?

I am not a lawyer but there are ways around some of these issues.  But, for the most part, the Justice Department will be very constrained in what evidence it can present given the need to protect sources and methods.

UPDATE:  CIPA link via Adam Serwer.   Note, too, that my concern isn’t that classified information will go unprotected but that the need to protect classified information will hamstring the prosecution.  Given that we have other, legally sanctioned options, having a civilian show trial strikes me as imprudent.

Well looks like the entire town of New London, Conn. is going to get screwed by Pfizer.

“Look what they did,” Mr. Cristofaro said on Thursday. “They stole our home for economic development. It was all for Pfizer, and now they get up and walk away.”

That sentiment has been echoing around New London since Monday, when Pfizer, the giant drug company, announced it would leave the city just eight years after its arrival led to a debate about urban redevelopment that rumbled through the United States Supreme Court, and reset the boundaries for governments to seize private land for commercial use.

Pfizer said it would pull 1,400 jobs out of New London within two years and move most of them a few miles away to a campus it owns in Groton, Conn., as a cost-cutting measure. It would leave behind the city’s biggest office complex and an adjacent swath of barren land that was cleared of dozens of homes to make room for a hotel, stores and condominiums that were never built.

[...]

After Pfizer completed its $67 billion acquisition of Wyeth, another drug giant, in October, Ms. Power said, “We had a lot of real estate that we had to make strategic decisions about.” She said Pfizer would try to sell or lease its buildings in New London and would “continue to pay our taxes to the city as scheduled.”

The complex is currently assessed at $220 million, said Robert M. Pero, a city councilman who is scheduled to become mayor next month. The company pays tax on 20 percent of that value and the state pays an additional 40 percent, Mr. Pero said. That arrangement is scheduled to end in 2011, around the time Pfizer, which is currently the city’s biggest taxpayer, expects to complete its withdrawal.

“Basically, our economy lost a thousand jobs, but we still have a building,” Mr. Pero said. Then again, he added, “I don’t know who’s going to be looking for a building like that in this economy.”

Basically you suck Mr. Pero. Good job wrecking your town’s economy. Not only has your economy lost thousands of jobs you’ve gone out and wrecked considerale amounts of private property…for nothing. On top of this you’ve spent millions of dollars that could have been spent elsehwere.

Mr. Pero said that he was offended that Pfizer did not notify city officials about the decision before Monday or give them a chance to argue against it or even fully understand it.

Oh the irony. Hmmm how did Ms. Kelo feel?

Not only did the government lose its case against two top Bear Stearns managers but at least one juror came away wanting to invest with them.

Prosecutors missed the mark so widely in the fraud trial of Bear Stearns Cos. hedge fund managers Ralph Cioffi and Matthew Tannin that a juror said after their acquittal she would invest with them if she had the money.

[...]

The funds collapsed in 2007, as did Bear Stearns itself less than a year later. The defendants, according to juror Serphaine Stimpson, were made “scapegoats for Wall Street.”

[...]

Stimpson said she came into the trial thinking both Cioffi and Tannin were guilty of the fraud, insider-trading and conspiracy charges. She said she began to have second thoughts as the testimony progressed and defense lawyers “tore the government witnesses apart.” “We just weren’t 100 percent convinced,” said Stimpson, 27, an office coordinator at Brooklyn College. “As the witnesses began to testify, I had my doubts.”

Key parts of the government’s case relied on e-mails written by the defendants.  The men claimed in e-mails and conversations with investors to be adding their own money to the funds in the months before their collapse, the U.S. alleged. Neither man added any money to the funds, once valued at $20 billion, prosecutors said.

The defense argued Cioffi and Tannin were innocent of any wrongdoing and had remained honestly optimistic about the funds’ health. E-mails which the men sent were more ambiguous than the government alleged, the lawyers for the two men said.

Jenny McCaughey, of Deer Park, on New York’s Long Island, served as the jury forewoman. She said the e-mails presented by the government as evidence cut both ways. “They said one thing and another thing,” McCaughey said. “The government didn’t give us enough evidence to go on.”

Aram Hong, a juror from Woodside, Queens, said the exchanges between Cioffi and Tannin shown to the jury proved to her that the two men were working “24-7” to save the funds in the months before they collapsed. She noted a defense exhibit that showed the fund managers were working at 4 a.m. “If this was really a fraud case, they wouldn’t have worked that hard,” said Hong, 27, a food and beverage director at the Iroquois Hotel in midtown Manhattan, adding that she would invest with the two men if she had the money.

This is a fascinating outcome, in that jurors were naturally disposed to convict.  These companies collapsed when dubious business practices finally proved unsustainable, helping take down the global economy.  And these guys were making millions!

But it certainly looks as if, at a minimum, these guys were overcharged.  They may well have been guilty of malfeasance and failure to perform due dilligence, although whether that rose to a criminal level I can’t say. But fraud seems a ridiculous charge given the evidence.

In hindsight, it appears that Major Nidal Malik Hasan, the mass murderer who killed 14 (one of the soldiers killed, Francheska Velez, was six weeks pregnant) and wounded another 30 at Fort Hood, had long made it known that he sympathized with the enemy. Bloomberg’s Justin Blum:

Major Nidal Malik Hasan, the Army psychiatrist accused of a shooting spree that killed 13 people at the Fort Hood Army Base in Texas, called the war on terrorism “a war against Islam,” said a doctor who was in a graduate program with him.

While studying for a masters degree in public health in 2007, Hasan used a presentation for an environmental health class to argue that Muslims were being targeted by the U.S. anti-terror campaign, said Val Finnell, a classmate. “He was very vocal about the war, very upfront about being a Muslim first and an American second,” said Finnell, 41, a preventive medicine doctor in Los Angeles, in an interview yesterday. “He was always concerned that Muslims in the military were being persecuted.”

[...]

Finnell said he remembered Hasan “vividly” and said of the shooting: “I’m not surprised, based on the things he said in the past. I’m shocked that it happened, but not surprised.”

In conversations, students challenged Hasan on his statements and he would become “visibly upset, sweaty, nervous,” Finnell said. Toward the end of the program, in 2008, Hasan gave a presentation that was billed as a survey of the climate for Muslims who serve in the U.S. military, Finnell said. “It wasn’t really very objective,” Finnell said. “It was like he was trying to prove a point.”

One witness claims Hasan shouted “Allahu Akbar!” before he began shooting.  Another witness says, “He didn’t say a word.”

Clearly, Hasan was unstable and, at very least, not fit to serve as an Army officer, much less an Army psychiatrist treating returning veterans from a war he hated.  So, why was he still serving?

As NPR’s Tom Gjelten reports,

The vital facts of Hasan’s life do not suggest a man determined to kill dozens of his fellows as they sat unarmed in a crowded waiting room. He was born in Arlington, Va. His parents were immigrants, but so are millions of other Americans. His heritage was Palestinian, but he didn’t even speak Arabic. He went to Virginia Tech and in 1997 joined the Army. It was through the Army that he got his medical training. He was due to be deployed to Afghanistan.

Those who look for a ready explanation for the murderous rampage at Fort Hood can choose between two broad narratives: Maybe it had to do with the travails of an Army psychiatrist, dealing with soldiers who had been traumatized, even disfigured, by their war experience; or maybe it had to do with being Muslim.

[...]

The portrait of Hasan as a Muslim radical doesn’t entirely make sense to those who knew him well. Imam Faisal Khan, whose D.C.-area mosque Hasan attended over a 10-year period, never got the idea he was ashamed of his Army service.

“He would come in his uniforms many times,” Khan said. “He would come in his uniform and pray. And then I knew he was in the Army. He liked his job. That’s what he was trained for, you know, to serve in the military.”

His psychological evaluations were apparently well within normal range, with “No signs of physical or mental problems in examinations as recently as September,”  according to Army records obtained by WaPo.

And yet there were strong signs that things were not right.   His alleged comments while away at a civilian* school would likely have escaped military attention.  But other officers noticed troubling behavior, too.

Col Terry Lee, a retired officer who worked with him at the military base in Texas, alleged Maj Hasan had angry confrontations with other officers over his views.

[...]

“He was making outlandish comments condemning our foreign policy and claimed Muslims had the right to rise up and attack Americans,” Col Lee told Fox News. “He said Muslims should stand up and fight the aggressor and that we should not be in the war in the first place.” He said that Maj Hasan said he was “happy” when a US soldier was killed in an attack on a military recruitment centre in Arkansas in June. An American convert to Islam was accused of the shootings.

Col Lee alleged that other officers had told him that Maj Hasan had said “maybe people should strap bombs on themselves and go to Time Square” in New York.

He claimed he was aware that the major had been subject to “name calling” during heated arguments with other officers.

Federal law enforcement officials have said Maj Hasan had come to their attention at least six months ago because of internet postings that discussed suicide bombings and other threats. The officials said the postings appeared to have been made by Maj Hasan but they were still trying to confirm that he was the author.

He was a daily attendee of a radical, Wahhabi mosque and there are numerous reports that Hasan was harassed because of his views.

Hasan, 39, told relatives he’d been harassed by other soldiers for his faith. Last month, soldier John Van de Walker, 30, was arrested for scratching Hasan’s Honda with a key, police said.

The manager of the Killeen, Tex., apartment complex where Hasan lived said the vandal had returned from Iraq and targeted Hasan because he of a Muslim bumper sticker. “No one should have to deal with that kind of hate. Maybe he snapped,” said Alice Thompson, 53.

One hesitates to psychoanalyze crazies but, rather clearly, Hasan harbored rage years before his car was keyed.  And the Army took appropriate action in response to that incident.

In hindsight, it’s pretty clear that the Army didn’t do the same with regard to the signs that Hasan was unfit.  But it’s not at all inconceivable that “the Army” had no idea.  The fact that several of his colleagues had heard him say highly inflammatory things doesn’t mean that these things were reported up through the chain of command.  Further, it’s not entirely clear what his superiors could have done with these reports, aside from confronting and counseling him.

While highly constrained in terms of time, place, and manner, military officers are allowed to disagree with official government policy in casual conversation with one another.  Plenty of officers, including those currently deployed to Iraq and Afghanistan, have no doubt expressed bitterness at missions they don’t believe in.  Lord knows, a large number of them did so about the various deployments ordered by Bill Clinton in the 1990s.  And, while it may not have made Hasan a popular guy on base, one doesn’t have to be a Muslim or want Americans killed to hold the view that citizens have a right to “rise up” against an invading force.

Beyond that, there’s a natural reluctance to be overly aggressive in challenging a Muslim soldier as an enemy sympathizer.  Being accused of racial profiling can be damaging to one’s career.  Further, it can feed natural resentments against Muslim soldiers, almost all of whom are just as loyal to the country, the uniform, and their fellow soldiers as the next guy.

I’m of course reminded of Sgt. Hasan Akbar, who went into a religious-inspired rage and murdered two 101st Airborne Division officers in 2003.   But, as Spencer Ackerman reminds us, Sergeant John Russell, who killed five soldiers in a shooting spree at Camp Liberty back in May, was not a Muslim.  So, outlandish claims that “the enemy is infiltrating our military” are unhelpful.

We have a natural desire to want to make sense of tragedy.  Unfortunately, we seem to have lone psychopaths going on shooting sprees and committing mass mayhem every now and again.  And we only see the “obvious” clues in hindsight.

*UPDATE:  A more recent AP report points out that the graduate school where Hasan made the comments was run by the military and adds further fuel to the fire that his seniors should have been aware of that they had a problem.

“I told him, `There’s something wrong with you,’” Osman Danquah, co-founder of the Islamic Community of Greater Killeen, told The Associated Press on Saturday. “I didn’t get the feeling he was talking for himself, but something just didn’t seem right.” Danquah assumed the military’s chain of command knew about Hasan’s doubts, which had been known for more than a year to classmates in a graduate military medical program. His fellow students complained to the faculty about Hasan’s “anti-American propaganda,” but said a fear of appearing discriminatory against a Muslim student kept officers from filing a formal written complaint.

“The system is not doing what it’s supposed to do,” said Dr. Val Finnell, who studied with Hasan from 2007-2008 in the master’s program in public health at the military’s Uniformed Services University of the Health Sciences. “He at least should have been confronted about these beliefs, told to cease and desist, and to shape up or ship out.”

[...]

Danquah said he was so disturbed by Hasan’s persistent questioning that he recommended the mosque reject Hasan’s request to become a lay Muslim leader at Fort Hood. But he never saw a need to tell anyone at the sprawling Army post about the talks, because Hasan never expressed anger toward the Army or indicated any plans for violence.  “If I had an inkling that he had this type of inclination or intentions, definitely I would have brought it to their attention,” he said.

Finnell said he did just that during a year of study in which Hasan made a presentation “that justified suicide bombing” and spewed “anti-American propaganda” as he argued the war on terror was “a war against Islam.” Finnell said he and at least one other student complained about Hasan, surprised that someone with “this type of vile ideology” would be allowed to wear an officer’s uniform.   But Finnell said no one filed a formal, written complaint about Hasan’s comments out of fear of appearing discriminatory.  “In retrospect, I’m not surprised he did it,” Finnell said. “I had real questions about what his priorities were, what his beliefs were.”

Hasan received a poor performance evaluation while at Walter Reed Army Medical Center, according to an official who spoke on condition of anonymity because he was not authorized to discuss the case publicly. And while he was an intern at the suburban Washington hospital, Hasan had some “difficulties” that required counseling and extra supervision, said Dr. Thomas Grieger, who was the training director at the time.

Hasan was promoted from captain to major in 2008, the same year he graduated from the master’s program. Bernard Rostker, a military personnel expert at the Rand Corp., said Hasan’s advancement was all but certain absent a serious blemish on his record, such as a DUI or a drug charge. “We’re short of officers, particularly at the major and lieutenant colonel level because of the war, and we’re short of psychiatrists,” said Rostker, who served as under secretary of defense for personnel and readiness during the Clinton administration. “There would have had to be something very detrimental in his record before there would have been a banner that would have said, ‘No, we don’t want to promote him.’”

If senior military leaders knowingly kept quiet about Hasan’s incompatibility for service in order to meet personnel quotas, they’ve aided and abetted the murder of thirteen soldiers.

The Supreme Court hears oral argument today in Pottawattamie County v McGee, wherein they will have to decide if prosecutors have immunity from lawsuits even if they frame someone for murder.

On one side of the case being argued are Iowa prosecutors who contend “there is no freestanding right not to be framed.” They are backed by the Obama administration, 28 states and every major prosecutors organization in the country.

On the other side are two black men — Terry Harrington and Curtis McGhee — men who served 25 years in prison before evidence long hidden in police files resulted in them being freed.

[...]

The Supreme Court has indeed said that prosecutors are immune from suit for anything they do at trial. But in this case, Harrington and McGhee maintain that before anyone being charged, prosecutors gathered evidence alongside police, interviewed witnesses and knew the testimony they were assembling was false.

Hard though it might be to believe, this is actually a difficult decision. The balance between protecting diligent prosecutors from suit and protecting defendants from the bad apples is not a simple thing. The good news is that a case like this is amenable to a bright-line rule against intentional misconduct. The bad news is, the Supreme Court has shown a consistent disdain for bright-line rules for some time.

Heretical Ideas previewed this case last month.

Eugene Volokh brings to our attention, rather belatedly, the case of Joly v. Pelletier, in which Rene Joly brought a suit some ten years ago alleging that Pelletier and others had conspired to suppress evidence that he was a Martian.  The judge dismissed the case on two grounds:

1. Neither pleading discloses a cause of action. While conspiracy to do harm to someone is the basis of many actions in this Court there is a fundamental flaw in the position of Mr. Joly. Rule 1.03 defines plaintiff as “a person who commences an action”. The New Shorter Oxford English Dictionary defines person as “an individual human being”. Section 29 of the Interpretation Act provides that a person includes a corporation. It follows that if the plaintiff is not a person in that he is neither a human being nor a corporation, he cannot be a plaintiff as contemplated by the Rules of Civil Procedure. The entire basis of Mr. Joly’s actions is that he is a martian, not a human being. There is certainly no suggestion that he is a corporation. I conclude therefore, that Mr. Joly, on his pleading as drafted, has no status before the Court.

2…. I am satisfied that the claims are frivolous and vexatious and constitute an abuse of the process of this Court…. [W]ith all respect to Mr. Joly and his perception of reality, these actions are patently ridiculous and should not be allowed to continue as they utilize scarce public resources not to mention the time and money of the numerous defendants who have been forced to defend these actions.

Volokh finds Reason 1 more blogworthy.   Glenn Reynolds and I concur.

Nell Scovell, one of a handful of women who has ever worked as a comedy writer for David Letterman — or any of the late night comic talk shows — contends that an atmosphere of sexual harassment routinely exists on those shows:

Without naming names or digging up decades-old dirt, let’s address the pertinent questions. Did Dave hit on me? No. Did he pay me enough extra attention that it was noted by another writer? Yes. Was I aware of rumors that Dave was having sexual relationships with female staffers? Yes. Was I aware that other high-level male employees were having sexual relationships with female staffers? Yes. Did these female staffers have access to information and wield power disproportionate to their job titles? Yes. Did that create a hostile work environment? Yes. Did I believe these female staffers were benefiting professionally from their personal relationships? Yes. Did that make me feel demeaned? Completely. Did I say anything at the time? Sadly, no.

Here’s what I did: I walked away from my dream job. The show picked up my option after 13 weeks; then, about two months later, while looking for a nicer apartment, I realized I didn’t want to commit to a yearlong lease. I’d seen enough to know that I was not going to thrive professionally in that workplace. And although there were various reasons for that, sexual politics did play a major part.

As Rachel Sklar points out, Scovell isn’t some unsuccessful woman blaming her woes on her sex: “She created the TV series Sabrina, the Teenage Witch and has written for Coach, Murphy Brown, Monk, N.C.I.S., Charmed, The Critic, The Simpsons and Newhart. And Late Night with David Letterman.”   Indeed, as Scovell notes in her piece, she was the story editor for Newhart when she was hired to write for Dave.

Melissa McEwan, Don Surber, and Ed Driscoll all bring different perspectives on this but still agree this was sexual harassment.  So do I.

But here’s the thing:  I don’t know what you do about it.

Letterman controls these people’s careers, so for him to have sexual relations with them is problematic and opens him and his company up for lawsuits. Sexuality creates incredible tension and problems in a workplace.  Ideally, then, we would just treat each other as colleagues rather than as potential romantic partners.  But people like this spend an inordinate amount of time at work and attraction does happen. Supervisors and subordinates not only become sexually intimate but fall and love and build lives together. It happens all the time.

In larger offices, this is reasonably easy to fix.  People can move laterally to avoid senior-subordinate relationships.  But in a small team like a 14-person comedy show staff?

Scovell’s solution is to hire more women.  She reports that there are currently zero women working on any of the major shows (Letterman, Leno, and O’Brien — no mention of Colbert and Stewart).   But, as a practical matter, having zero women markedly reduces the chance of sexual harassment!  With more women on the staff — something that otherwise seems a no-brainer given the number of women in the audience — there’s more chance for relationships to form and resentments to foster.

So, there’s the law, human decency, and the way things ought to be.  But there’s also human nature and the power of romantic and/or sexual attraction.  These things often conflict.

A rather bizarre case in Illinois — even by the standards of that state.

For more than a decade, classes of students at Northwestern University’s journalism school have been scrutinizing the work of prosecutors and the police. The investigations into old crimes, as part of the Medill Innocence Project, have helped lead to the release of 11 inmates, the project’s director says, and an Illinois governor once cited those wrongful convictions as he announced he was commuting the sentences of everyone on death row.

But as the Medill Innocence Project is raising concerns about another case, that of a man convicted in a murder 31 years ago, a hearing has been scheduled next month in Cook County Circuit Court on an unusual request: Local prosecutors have subpoenaed the grades, grading criteria, class syllabus, expense reports and e-mail messages of the journalism students themselves. The prosecutors, it seems, wish to scrutinize the methods of the students this time. The university is fighting the subpoenas.

Lawyers in the Cook County state’s attorney’s office say that in their quest for justice in the old case, they need every pertinent piece of information about the students’ three-year investigation into Anthony McKinney, who was convicted of fatally shooting a security guard in 1978. Mr. McKinney’s conviction is being reviewed by a judge. Among the issues the prosecutors need to understand better, a spokeswoman said, is whether students believed they would receive better grades if witnesses they interviewed provided evidence to exonerate Mr. McKinney.

[...]

A spokeswoman for Anita Alvarez, the Cook County state’s attorney, who was elected last fall, said the prosecutors were simply trying to get to the bottom of the McKinney case. “At the end of the day, all we’re seeking is the same thing these students are: justice and truth,” said Sally Daly, the spokeswoman. She said the prosecutors wished to see all statements the students received from witnesses, whether they supported or contradicted the notion of Mr. McKinney’s innocence. “We’re not trying to delve into areas of privacy or grades,” Ms. Daly said. “Our position is that they’ve engaged in an investigative process, and without any hostility, we’re seeking to get all of the information they’ve developed, just as detectives and investigators turn over.”

Well, no. Without probable cause to believe criminal action on part of the students, the state has no right to any of this material.  And why would it matter if the students thought they would get better grades for getting provocative statements?  Surely, people aren’t going to confess to crimes or commit otherwise commit perjury in order to help out some rich college students they don’t know.

On this matter, there seems to be wide consensus.

American University conlaw prof Darren Lenard Hutchinson:

The subpoena raises several red flags. First, the information the prosecutors seek is completely unrelated to the question of McKinney’s guilt or innocence. Second, student grades are normally protected from disclosure by federal law. Third, the program is operated by the school of journalism and likely qualifies for protection by state journalism shield laws and the First Amendment. Fourth, the professor’s course materials are possibly protected from disclosure by the concept of academic freedom — which the Supreme Court has construed as a value secured by the First Amendment.

[...]

Daly also likens the subpoena to the routine disclosure of information by “detectives.” Police detectives, however, work for the government and assist the prosecution. They are colleagues. Although private detectives do not work for the government, they have an unambiguous financial stake in the outcome of their investigation. The students, by contrast, are private citizens and journalists. The Medill project exists to monitor and improve the criminal justice system — not to service the prosecutor’s office or inmates.

[...]

Illinois prosecutors are blatantly using the strong arm of the state to harass Medill journalism students. The prosecutors’ behavior evinces a deep contempt for the law, which makes the students’ efforts to uncover wrongful convictions even more compelling.

Emptywheel’s bmaz:

The Cook County prosecutors cite no evidence to support a credible belief there is anything nefarious behind the student journalists’ work. The students work, conclusions and supporting materials are all part of their project report. The prosecutors already have access to all of said pertinent material, as well they should. But what they now want are “grades, grading criteria, class syllabus, expense reports and e-mail messages of the journalism students”. Here is the actual subpoena. This is information that has nothing whatsoever to do with the students work on the project. “Fishing expedition” would be far too kind of a term.

The only visible purpose of the play by the prosecutors here is intimidation and instillation of a deep chill in the work of the Medill Innocence Project.

Retired federal judge H. Lee Sarokin:

I am always offended and annoyed with the labeling of some recent conduct or person with Nazism or Hitler or drawing analogies with the Holocaust and thereby belittling those horrific events in our history with some current less appalling and even minor occurrences. But I truly believe that the attempt of prosecutors to subpoena “the grades, grading criteria, class syllabus, expense reports and e-mail messages of their journalism students themselves” at Northwestern University warrants and deserves the Gestapo label.

It is a flagrant attempt to intimidate the Medill Innocence Project and other similar projects which have been so successful in overturning wrongful convictions. The alleged justification is that the prosecutors want to determine “whether students believed that they would receive better grades if witnesses they interviewed provided evidence to exonerate Mr. McKinney.” So I take it that would mean that every time a detective obtained incriminating evidence, his entire background could be examined in order to determine his motives when interviewing a witness; whether he had received or expected a raise or a promotion; and if so whether he needed money; how much his debt was; what he was paying for rent and alimony, etc. In other words, the scope of the investigation would be extended to the motives of the investigator rather than the witness being investigated and interrogated.

Wisconsin lawprof Ann Althouse asks “what information about students and classes should it be able to look at?”  She does not attempt to answer the question.  Her commentators give it a shot.

Tennessee lawprof Glenn Reynolds, aka InstaPundit, snarks, “Hey, it’s the Chicago Way. But the parallel is pretty striking — if you don’t like what they’re reporting, why, then, they’re not really journalists!“

Yesterday, Radley Balko passed on the story of Eric Williamson, the Springfield, Virginia man who has been charged with indecent exposure for being naked in his own house.    According to Williamson’s version of events, he was making coffee at 5:30 in the morning when a woman and her 7-year-old cut across his yard and spied him through a window and called the cops.

Radley joked, “Fairfax police say Williamson wanted to be seen naked. Which I guess means Williamson’s front yard is a pretty popular spot at 5:30 in the morning.”

Via AllahPundit, here’s the Fox News report, with Williamson expressing his surprise and outrage over the arrest:

Well, now it seems that the facts are in dispute.

The woman told police it was 8:40 a.m. when she was walking her son to school along a path between houses. She said they first spotted Williamson naked in an open door in the car port of his home.

She also told police that Williamson then walked across the house to a large window, facing the way she was walking.

If it’s 8:40 in the morning — it’s light out in these parts by 7 — and he’s in front of an open door, his claim to being in the privacy of his own home minding his business is seriously damaged.  And if he saw the mother and boy and then ran in front of a large window to further expose himself to them, he’s almost certainly committed a crime.

Radley, who wrote a new post updating the story, disagrees:

Given that she was apparently on his property (that part of the story hasn’t yet been disputed), and he was in his home the entire time, I’m not sure his exact position in his own home matters, unless he was otherwise in plain view of someone using the public sidewalk. Even then, it seems more like tacky behavior than behavior that should be criminal. And you’d think the guy would get a warning before you arrest him for nudity in his own house.

He admits this is all rather peculiar:

The guy does seem strange. A roommate says he was acting oddly, walking around all morning wearing nothing but a construction hat. But again, strange behavior needn’t be a crime punishable by a year in jail (if the roommate had reported unwanted nudity, that might be a different matter). Seems like a sensible policy would be that once you walk into someone’s yard and look inside their home, you can’t claim to be victimized by what you might see.

If you’re in your own house but standing naked in  an open door visible to the public — the path between these houses is apparently a common walkway used by neighborhood kids going to school — your expectation of privacy is seriously diminished.  Ditto standing naked in front of an uncovered window at 8:40 in the morning.

Williamson wasn’t, say, emerging naked from bed and walking down to start the coffee in the interior of his home.  If someone happened to catch a shadowy glimpse under such circumstances, I’d completely agree with Radley’s view of the situation.   For that matter, if he was standing naked in his carport doorway at 5:30 in the morning to smoke a cigarette and some earlybird neighbors walked by, the most I’d expect would be for police to issue him a friendly warning.  But, if the accuser’s version of events is accurate — and I’m inclined to believe it was given the reaction of the roommates — then Williamson was willfully committing indecent exposure to small children.   That’s not, in my judgment, worth a year in jail on first offense.  But it’s not innocent behavior, either.

As an aside, I’m rather amused at the caption on the WTOP photo.  What has his growing up in Hawaii to do with anything?  Do they have different customs there on nudity?  Or is he actually a Kenyan citizen whose citizenship is in question?  If so, perhaps he’ll be deported.

It seems that some Orlando area sex offenders, unable to find housing elsewhere after being released from prison, wound up living at a trailer park. Said trailer park was near a school bus stop. Local parents, quite reasonably concerned, tried but failed to have the bus stop moved. Apparently, “According to the release conditions placed on sex offenders, they are prohibited from living near schools, churches and day cares, but there is nothing that says can’t live by the bus stop.”

So, said concerned parents hatched a new plan: build a day care center nearby and force them to move. Once their license is approved, the men will have 24 hours to leave.

Now, I think it’s fair to say that I’m anti-sex offender.  Indeed, as the parent of a nine-month-old girl, this is one area where I’m likely to become less, rather than more, tolerant as time goes by.

Still, this strikes me as abusive.  To prohibit these men from moving to a place next door to a school or day care center is prudent and hardly too much to bear; I’m a little more dubious about churches but whatever.  But, surely, even convicted felons shouldn’t be forced from their homes at the whim of builders or vengeful parents?  What if they actually owned a house?

Indeed, it seems this move will preclude the men from living anywhere in the county.   That makes it rather inconvenient to hold down a job — already a difficult thing for a man with this sort of crime on his record.  For that matter, what if the terms of their release require them to remain within the county?

via Radley Balko