TalkLeft

Tuesday Open Thread

Jeralyn — 2010-02-09T12:27:05-05:00

I'm busy at work today. Here's an open thread, all topics welcome.

Sentencing Memos Filed in Bernie Kerik Case

Jeralyn — 2010-02-09T09:36:00-05:00

Former NY Police Commissioner Bernie Kerik is scheduled to be sentenced in a few weeks on his guilty plea to various tax offenses and false statement charges. Both sides filed lengthy sentencing statements yesterday.

Both parties have agreed to a guideline sentence in the range of 27 to 33 months. The Government is clearly hoping for the max of 33 months. Bernie is asking for 27 months.

Having read through the Government's 61 page sentencing memo and Bernie's (234 pages, including many letters), I have to wonder why the Government is making such a big fuss over 6 months. By pleading guilty, he saved the Government an enormous expense of time and resources that would have been required for a trial that would have lasted many months.

The case is largely based on the same conduct to which he pleaded guilty in the Bronx, and received no jail time. [More..]

What did he do that was so terrible? He didn't declare the value of the renovations on an apartment on his tax returns; he made false statements about them; he didn't declare the value of a BMW he received from a company he was working for; and he spoke for free at organizations and deducted his nomal speaking fee on his return as a charitable contribution. Total: About $300,000. He didn't tell the White House he had a full-time nanny whom he hadn't paid social security and medicare taxes for. (He's since paid them.) And he didn't warn the White House during the vetting process for Homeland Security Chief that his ties to Larry Ray and the Di Tommasso brothers could be portrayed negatively.

The Government makes a point of acknowledging that there is no evidence Kerik was involved in organized crime or had improper dealings with them. It says that because Kerik's brother and his former best man Larry Ray worked for the di Tomasso's company, he improperly asserted himself into an investigation of Interstate's activities. In other words, he meddled.

The defense , obviously, paints a far different picture of Bernie.

The only person the extra 6 months is going to make a difference to is Bernie...and the taxpayers who have to foot the bill for his incarceration.

The Government is also opposing Bernie's request for a voluntary surrender. That strikes me as mean-spirited. Most white collar offenders are allowed to voluntarily surrender to avoid sitting in a county jail for a month while BOP decides where they are going to be placed. In Bernie's case, because of his law enforcement background, he'll end up in segregation. That's just punitive and unnecessary, considering he's not a flight risk. He's been home with his wife and family since the Judge revoked and then reinstated his bail last fall, without any violations.

Why can't the Government be satisfied with a just sentence rather than have to go for the extra pound of flesh to make the sentence as miserable as possible for the defendant?

How is this related to his crimes?

“The defendant’s egotism and hubris were the tragic flaws that led him to commit the considerable number of crimes to which he ultimately pleaded guilty.... Mr. Kerik “became a wealthy man by shamelessly exploiting the most horrific civilian tragedy in this nation’s history.”

I also don't like that they disqualified two of his lawyers during his case, including my pal Joe Tacopina, pictured above with Bernie.

Bernie will also have a heavy restitution bill to pay, that will follow him around when he gets out from prison.

I may not share Kerik's politics, but I have no problem looking at the facts of his case and wondering what the big fuss is all about. And, at least doing so doesn't require me to agree with Rudy Giuliani, who couldn't even be bothered to write a sentencing letter for his former right-hand man -- the person he recommended George W. Bush appoint as Homeland Security Chief.

The federal case against Bernie was filed in 2007. He battled the state for a few years before that. Five years of fighting the Government takes a huge emotional and physical toll.

The Government ends its brief with the sentence: "Those who are charged with enforcing the law must first obey it themselves." That's true, but it should also be taken into consideration whether the defendants' unlawful acts were personal in nature, i.e., were not made with the intent to corrupt police business, and those, like Bernie, whose actions were personal ones, committed outside his law enforcement duties, intended solely to bring personal gain.

I'm not the judge but having read all of the pleadings of both sides since the case began, my view is Bernie should get the bottom of the guideline range, 27 months, and be allowed to voluntarily surrender and get to his designated facility as soon as possible. His sentence won't be over the day he gets out. He'll then have to deal with the difficult task of rebuilding his life and finding a way to support his family and pay his restitution.

When it comes to deterrence, I doubt anyone contemplating similar criminal activity is going to say, "Bernie only got 27 months, I'll take my chances and do the same thing" while if Bernie got 33 months, they'd say, "Oh that's way too much time, I'm not going to follow in his footsteps and take a chance on that big a sentence."

My prediction: The judge splits the difference, gives Bernie 30 months, and allows him to voluntarily surrender.

Monday Night TV And Open Thread

Jeralyn — 2010-02-08T21:21:24-05:00

Jake the Bachelor goes on four hometown dates tonight. After that, it's "24" and "Life Unexpected."

Olympics coverage is gearing up. Check out former Bachelorette winner Jesse Csincsak's new show, Beyond the Medal.

What's on your agenda tonight? This is an open thread, all topics welcome.

Charlie Sheen Charged, Court Modifies Protective Order

Jeralyn — 2010-02-08T19:01:47-05:00

Charlie Sheen and his wife Brooke Mueller appeared in court in Aspen today. Sheen was advised of his rights on a complaint (pdf) charging felony menacing and two misdemeanors, third degree assault and criminal mischief. All three counts contain a domestic violence component. The criminal mischief count pertains to Sheen's alleged breaking of two of Mueller's pairs of eyeglasses, valued together at between $500 and $1000.00.

The Judge modified the mandatory protective order so the couple can be together. Sheen is taking anger management classes, and the next court date will be the arraignment on March 15, when Sheen will have to plead guilty or not guilty. [More...]

Colorado law is very strict on domestic violence crimes. While a deferred judgment is allowed, a deferred prosecution is not.

No person accused or convicted of a crime, the underlying factual basis of which has been found by the court on the record to include an act ofdomestic violence, as defined in section 18-6-800.3 (1), shall be eligible for home detention in the home of the victim pursuant tosection 18-1.3-105 or 18-1.3-106 or for deferred prosecution pursuant to section 18-1.3-101. Nothing in this subsection (4) is intended to prohibit a court from ordering a deferred sentence for a person accused or convicted of a crime, the underlying factual basis of which has been found by the court on the record to include an act of domesticviolence, as defined in section 18-6-800.3 (1).

And the DA is not allowed to bargain away the domestic violence component unless he makes a representation to the court that he cannot prove the accused and the victim were in an intimate relationship.

C.R.S. 18-6-801

1) "Domestic violence" means an act or threatened act of violence upon a person with whom the actor is or has been involved in an intimate relationship. "Domestic violence" also includes any other crime against a person, or against property, including an animal, or any municipal ordinance violation against a person, or against property, including an animal, when used as a method of coercion, control, punishment,intimidation, or revenge directed against a person with whom the actor is or has been involved in an intimate relationship.
2)"Intimate relationship" means a relationship between spouses, former spouses, past or present unmarried couples, or persons who are both the parents of the same child regardless of whether the persons have been married or have lived together at any time.

3) A person charged with the commission of a crime, the underlying factual basis of which includes an act of domestic violence as defined in section 18-6-800.3 (1), shall not be entitled to plead guilty or plead nolo contendere to an offense which does not include the domestic violence designation required in section 16-21-103, C.R.S.,unless the prosecuting attorney makes a good faith representation on the record that such attorney would not be able to establish a prima facie case that the person and the alleged victim were currently or formerly involved in an intimate relationship if the defendant were brought to trial on the original domestic violence offense and upon such a finding by the court.
The prosecuting attorney's record and the court's findings shall specify the relationship in the alleged domestic violence case which the prosecuting attorney is not able to prove beyond a reasonable doubt and the reasons therefor. No court shall accept a plea of guilty or nolo contendere to an offense which does not include the domestic violence designation required in section 16-21-103, C.R.S., when the facts of the case indicate that the underlying factual basis includes an act of domestic violence as defined in section 18-6-800.3 (1) unless there is a good faith representation by the prosecuting attorney that he or she would be unable to establish a prima facie case if the defendant were brought to trial on the original offense.

In the end, I suspect Sheen will end up without a permanent felony conviction. He should be able to avoid jail and get probation and court-ordered treatment. But unless his lawyers create some serious magic, he's likely to get stuck with a permanent misdemeanor conviction that has a domestic violence component, which he won't be able to seal under Colorado law.

Dr. Conrad Murray Charged With Involuntary Manslaughter

Jeralyn — 2010-02-08T16:01:24-05:00

Dr. Conrad Murray has been charged with one count of involuntary manslaughter in the death of Michael Jackson. The press release from the LA District Attorney's office reads:

Dr. Murray "did unlawfully, and without malice, kill Michael Joseph Jackson ... in the commission of an unlawful act, not a felony; and in the commission of a lawful act which might have produced death, in an unlawful manner, and without due caution and circumspection."

It's a media circus in L.A. Michael Jackson's parents, and siblings Jermaine and La Toya are at the courthouse for he brief court appearance, set for 1:30 pm. PT. Dr. Murray will voluntarily surrender and be released immediately on bond. Hopefully no perp walk. [More...]

Given the charge, the case will become about "due caution and circumspection" and acceptable medical standards. In other words, dueling experts.

The autopsy report was released today and TMZ has a copy. It finds Jackson's death a homicide based on:

1. Circumstances indicate the Propofol and the benzodiazepines were administered by another.
2. Propofol was administered in a non-hospital setting without any appropriate medical indication.

3. The standard of care for administering Propofol was not met. Recommended equipment for patient monitoring, precision dosing and resuscitation was not present.
4. The circumstances do not support self-administration of Propofol.

Update: The full autopsy report is here.

Here's the video of his court appearance.

John Murtha, RIP

Big Tent Democrat — 2010-02-08T15:14:36-05:00

John Murtha has passed away:

Representative John P. Murtha, the longtime Democratic congressman from Pennsylvania, has died at age 77. His aides released a statement saying that he died shortly after 1 p.m. today at Virginia Hospital Center in Arlington, a suburb of Washington, D.C. Mr. Murtha had been placed in intensive care last week after complications from gallbladder surgery, his staff said then.

Mr. Murtha, who had an extremely close relationship with Speaker Nancy Pelosi, was chairman of the House Appropriations Subcommittee on defense. [. . .] When he called for bringing the troops home from Iraq in 2005, after having voted for the war, his proposal stunned many in Congress and added a powerful voice to the growing forces demanding immediate drawdowns and or deadlines.

RIP.

Why Sarah Palin's Hand Became Political Fodder

Big Tent Democrat — 2010-02-08T12:57:47-05:00

James Joyner plays dumb for some reason over Sarah Palin's Hand-gate:

[T]his seems much ado about nothing. If Sarah Palin likes to write buzz words on her hand, so what?

The problem is Joyner knows why it became political fodder. Look at his comment in the same thread:

[. . .] Obama's teleprompter could fail, too, and goodness knows what he'd say.

More . . .

This is why Palin Hand-gate has become a big story - the GOP, Palin included, stupidly ran with the idiotic teleprompter line. This is referred to as being hoisted by your own petard - pretty effective in politics. Joyner knows this. It is silly of him to play dumb.

Does anyone involved actually care? Of course not. But politics is nothing if not stupid.

Speaking for me only

Fruitless Concessions To The GOP

Big Tent Democrat — 2010-02-08T12:08:29-05:00

Ezra Klein recites the concessions to the GOP in the Senate health bill:

I don't think it's well understood how many of the GOP's central health-care policy ideas have already been included as compromises in the health-care bill. [. . .] [T]he GOP's [. . .] health-care plan [. . .] has four planks. All of them -- yes, you read that right -- are in the Senate health-care bill. [. . .] To the surprise and dismay of many liberals, the Senate health-care bill included a compromise with the conservative vision for insurance regulation. [. . .] [W]hen Republicans are feeling bolder [. . .] they generally take aim at one of the worst distortions in the health-care market: The tax break for employer-sponsored insurance. [. . .] Democrats usually reject, and attack, both approaches. Not this year, though. Senate Democrats [proposed] the excise tax, which does virtually the same thing.

And [. . .] we shouldn't forget the compromises that have been the most painful for Democrats, and the most substantive. This is a private-market plan. Not only is single-payer off the table, but at this point, so too is the public option. The thing that liberals want most in the world has been compromised away.

Indeed. And for what? No GOP votes. I wrote about this yesterday - if the Senate bill proponents want that bill passed, concessions to the House must be made, especially on the excise tax. That is the reality of politics. To refuse to support that is to be a "Kill the Bill"-er.

Speaking for me only

In A Mood To Win

Big Tent Democrat — 2010-02-08T10:15:41-05:00

Glenn Greenwald writes about this NYTimes article detailing the whining from Wall Street. It is preemptive whining to be sure - the Obama Administration has not laid a glove on them. But it puts in mind the 1936 FDR Dem Convention Speech:

In 1932 the issue was the restoration of American democracy; and the American people were in a mood to win. They did win. In 1936 the issue is the preservation of their victory. Again they are in a mood to win. Again they will win.

More than four years ago in accepting the Democratic nomination in Chicago, I said: "Give me your help not to win votes alone, but to win in this crusade to restore America to its own people."

[More . . .]

The banners of that crusade still fly in the van of a Nation that is on the march.

[. . .] What was our hope in 1932? Above all other things the American people wanted peace. They wanted peace of mind instead of gnawing fear.

First, they sought escape from the personal terror which had stalked them for three years. They wanted the peace that comes from security in their homes: safety for their savings, permanence in their jobs, a fair profit from their enterprise.

Next, they wanted peace in the community, the peace that springs from the ability to meet the needs of community life: schools, playgrounds, parks, sanitation, highways those things which are expected of solvent local government. They sought escape from disintegration and bankruptcy in local and state affairs.

They also sought peace within the Nation: protection of their currency, fairer wages, the ending of long hours of toil, the abolition of child labor, the elimination of wild-cat speculation, the safety of their children from kidnappers.

Tonight I call the roll,the roll of honor of those who stood with us in 1932 and still stand with us today.

Written on it are the names of millions who never had a chance, men at starvation wages, women in sweatshops, children at looms.

Written on it are the names of those who despaired, young men and young women for whom opportunity had become a will-o'-the-wisp.

Written on it are the names of farmers whose acres yielded only bitterness, business men whose books were portents of disaster, home owners who were faced with eviction, frugal citizens whose savings were insecure.

Written there in large letters are the names of countless other Americans of all parties and all faiths, Americans who had eyes to see and hearts to understand, whose consciences were burdened because too many of their fellows were burdened, who looked on these things four years ago and said, "This can be changed. We will change it."

We still lead that army in 1936. They stood with us then because in 1932 they believed. They stand with us today because in 1936 they know. And with them stand millions of new recruits who have come to know.

Their hopes have become our record.

We have not come this far without a struggle and I assure you we cannot go further without a struggle.

For twelve years this Nation was afflicted with hear-nothing, see-nothing, do-nothing Government. The Nation looked to Government but the Government looked away. Nine mocking years with the golden calf and three long years of the scourge! Nine crazy years at the ticker and three long years in the breadlines! Nine mad years of mirage and three long years of despair! Powerful influences strive today to restore that kind of government with its doctrine that that Government is best which is most indifferent.

For nearly four years you have had an Administration which instead of twirling its thumbs has rolled up its sleeves. We will keep our sleeves rolled up.

We had to struggle with the old enemies of peace -- business and financial monopoly, speculation, reckless banking, class antagonism, sectionalism, war profiteering.

They had begun to consider the Government of the United States as a mere appendage to their own affairs. We know now that Government by organized money is just as dangerous as Government by organized mob.

Never before in all our history have these forces been so united against one candidate as they stand today. They are unanimous in their hate for me, and I welcome their hatred.

A masterful speech from the greatest politician and statesman of the 20th Century. It is too much to ask that his performance be matched. But it is not too much to ask that lessons be learned from him.

Speaking for me only

Will The Senate's Refusal To Fix The Excise Tax "Kill The Bill?"

Big Tent Democrat — 2010-02-08T09:35:35-05:00

E.J. Dionne:

At least two amendments are essential to getting the bill through the House. They involve reducing the burden of the tax on "Cadillac" health-care plans, which is wildly unpopular with House members and voters; and getting rid of the special Medicaid subsidy deal for Nebraska, which just about everyone hates. Even Nebraska's Ben Nelson, the senator for whom that deal was put together, wants it out.

(Emphasis supplied.) All the caterwauling about "Passing the Damn Bill" will not change that reality. You want to get the "damn bill" passed? Then the Senate must be pressured to gut the excise tax. It's a simple as that. You can't pass the Senate bill in the House unless the excise tax is gutted. Will the excise tax purists in the White House, the Senate and the Village insist on killing the bill if they do not get their way on the excise tax?

Speaking for me only

Court Day For Charlie Sheen and Dr. Conrad Murray

Jeralyn — 2010-02-08T09:30:00-05:00

Actor Charlie Sheen will appear in court in Aspen at 2:30 pm MT. The court docket states the matter is set for a bond appearance. Multiple media reports and a press release by Pitkin County indicate charges will be filed against him, most likely felony menacing and misdemeanor assault. His wife, Brooke Mueller, has also been ordered to appear so that the Judge can address the Sheens' request to modify the mandatory protective order preventing them from having contact.

TMZ reports a plea bargain may be in the works, but it won't happen tomorrow. My thoughts on what the plea bargain would entail are here.

In Los Angeles, Dr. Conrad Murray, the Houston physician present with Michael Jackson when he died, will appear in court at 1:30 pm PT. The DA's office is expected to file a charge of involuntary manslaughter against him. [More...]

His lawyer, Edward Chernoff, says he'll answer questions on the courthouse steps after the appearance. Dr. Murray is expected to be released on bond immediately.

Dr. Conrad Murray’s defense team is prepared to surrender him at the Airport Courthouse at 1:30 pm Monday, February 8. After the expected arraignment, Ed Chernoff will be available for questions on the courthouse steps.

The LA Times reports on the doctor's financial problems that may have led him to accept Jackson's offer of employment.

Back to Charlie Sheen: If Sheen is charged with felony menacing, it will include the threatened use of a deadly weapon. The statute (18-3-206) reads:

(1) A person commits the crime of menacing if, by any threat or physical action, he or she knowingly places or attempts to place another person in fear of imminent serious bodily injury. Menacing is a class 3 misdemeanor, but, it is a class 5 felony if committed:
(a) By the use of a deadly weapon or any article used or fashioned in a manner to cause a person to reasonably believe that the article is a deadly weapon; or
(b) By the person representing verbally or otherwise that he or she is armed with a deadly weapon.

The charges listed on the police report and in the affidavit for his arrest on Christmas Day are explained here.

Super Bowl 44: Saints Win

Big Tent Democrat — 2010-02-07T18:43:00-05:00

Manning throws a late pick to seal Saints win. Final score Saints 31 - Colts 17.

More . . .

My misguided pre game analysis:

From Sport Left:

The Colts play the Saints today in Super Bowl XLIV. (Don't you hate the roman numerals schtick now?) The colts are the better team. But the Vikings were the better team in the NFC Championship game. The best team does not always win.

The line is Colts (+5 1/2). Looking at the game on the merits, the Colts seem the play. One objective point favors the Saints - Dwight Freeney's ankle. Based on the descriptions of the injury, it seems hard to imagine Freeney can play much, or effectively. Yet, I do not see that as a huge factor. Pressuring Drew Brees is a sketchy proposition anyway. The Vikings did not get much pressure on Brees, yet they shut down the Saints offense. To beat the Colts requires a team capable of physically dominating them. Is the Saints' running game up to it? I doubt it. the other key to the Saints' success this year has been turnovers. Their defense has been excellent at creating turnovers (some of it is random, but the Saints try and strip on every play. It is more than just random.)

On defense, the question for the Saints is how to stop Peyton Manning. Pressure is the conventional prescription, but it has not worked much in the past 4 years. Manning is clearly the best player in the NFL. He is at the top of his game. All of his receivers are healthy. The Saints defense is really not very good against the pass (or the run for that matter.) I do not see them stopping the Colts. I like the Colts, big. Take the Colts (-5 1/2).

On the prop bets, here is what I am playing:

Heads on the coin toss, Colts receive opening kick off, Saints get first first down, first first down comes on a running play, Saints score first, team that scores first loses the game, first score will be a field goal, first scoring play will be a Saints field goal, Colts will score the first TD, Colts will be the team to punt first, first call subject to coaches challenge will be upheld, first turnover will be a fumble, Saints will be the last team to score, last score will be a TD, a 4th down attempt will be converted, and finally, both teams will have the lead in the first half.

The full list of prop bets here.

The Delusional Pass The Senate Stand Alone Bill Movement

Big Tent Democrat — 2010-02-07T16:51:04-05:00

Ah, the "reality based community" is at it again.

They want the House to pass the Senate Stand Alone Health bill. My word, even the Villagers have given up on that one. They know it is impossible. Pelosi is 100 votes short for that.

But the delusional Pass The Stand Alone Senate Bill folks will be whining soon - about Howard Dean, about the Progressive Caucus, about Jane Hamsher - you name it. But they'll never complain about the political geniuses who stand in the way of passage of the Senate bill - the excise tax purists who would rather kill the bill than eliminate or modify the excise tax.

Here's the thing - it does not matter what they say, or I say, or what the Village says - if they want to pass the Senate bill, they'll need to gut the excise tax. It is the only chance for passage in the House. The alternative is incessant whining.

Speaking for me only

Sarah Palin's Crib Notes

Jeralyn — 2010-02-07T13:28:56-05:00

The Witless Wonder Rides Again:

[More...]

To make it worse, check the video... it was for a q and a session where she likely knew the questions in advance.

Political Realities

Big Tent Democrat — 2010-02-07T12:37:23-05:00

Kevin Drum writes:

Obama has always kept his distance from both the netroots and the broader lefty base, and the congressional leadership largely did the same during healthcare negotiations. And it's not just that they ended up with a policy choice that progressives were unenthusiastic about. It's that they never even pretended to take progressives seriously. This is a mistake that George Bush and Karl Rove never made. The conservative base frequently didn't get what it wanted from them, but they always felt like they had a friend in the White House whose heart was in the right place. Progressive groups, conversely, have mostly felt like they got the back of the hand from the White House on healthcare. So it's understandable that they've either given up or, in a few cases, actively turned against the whole process.

This seems both right and wrong to me. It's true that the White House and SENATE Dems ignored the concerns of progressives on health care. And Villagers berated progressives (and unions) for not accepting political reality (now they berate the House Dems in the same fashion.) What is wrong though is the notion that the concern was about the process, as opposed to the policy. Indeed, Kevin reflects the condescension that the White House, the Senate and the Village has demonstrated throughout this health care debate. I'll give you two examples -- the excise tax and the public option. These issues are more than symbols. They are honest to Gawd serious issues for progressives and unions. More . . .

When the history of the health care issue in 2009 is written, I think that one of the main goats will be Jon Gruber, and the White House and Senate leaders who embraced his call for an excise tax.

Think what you want about the policy itself, it should have been obvious that the politics of the excise tax created the very significant risk of killing the bill. The unions, one of the most important Democratic constituencies, absolutely hated it. The inclusion of the excise tax was a disastrous political mistake.

But to this day, the White House, Senate leadership and the Villagers are willing to fight to the death for the excise tax. In short, they are willing to kill the bill unless there is an excise tax.

Kevin wrote that "this is also utterly pathetic because....well, it just is. So Max Baucus didn't listen to us. Big deal." On the excise tax, it was the biggest deal. It will likely kill the bill.

It is pathetic of proponents of the Senate health bill that they are so committed to an excise tax that will kill the whole bill if it is not included.

If progressive and union support is necessary for passing the Senate bill, then proponents of the Senate bill need to address their concerns. That is how politics works. If the Senate bill proponents want it passed, they need to round up the votes for it. That means winning support, not berating folks who do not support it. If they want to garner GOP support (good luck with that), then they need to make concessions to Republicans. If they want progressive and union support, they need to make concessions to progressives and the unions. That is how politics works.

It is pathetic to me that so many "pragmatic" Villagers do not understand this elementary principle of politics. The political realities seem foreign to them.

Speaking for me only