legal redux

The end of the ledux...

2006-12-01T00:01:00.000-08:00

Twenty-two months ago, during spring break of 2005, I started "The Redux" on a Google Groups page. My idea was to have a current events discussion forum with friends and those who didn't necessarily share my worldview but were mature enough to argue in a decent and civilized manner. A few months later the webpage moved to a Blogger account and began calling itself the "legal redux." Here, at the page nicknamed "ledux," we discussed public policy with an increasing focus on legal issues, including slip opinions from the Supreme Court (US) and prominent lower and state court decisions. Somewhere along the line, you came along. You either knew one of the contributors or otherwise stumbled across the ledux content and decided to return regularly to read our stuff. You endured my painful HTML skills (or lack thereof), my delinquent spam comment deletion and, at times, my sophistry. You joined in conversations that have dealt with controversial issues like abortion and euthanasia, frivolous topics like Wendy's finger thing and Britney Spear's libel suit and groundbreaking subjects like illegal music downloading. Thank you very much for your patience and willingness to keep coming back..

If I had my druthers (and the economic principle of scarcity didn't limit my ability to do everything), I would maintain this site into perpetuity. As it is, with a heavy school load, some exciting extra-curricular opportunities and writing for a few other publications, it is difficult to provide you all with the ledux experience to which you have become accustomed. I could maintain the site from afar -- checking in every week or so to delete spam and posting occasionally with my increasingly obsolete perspective -- but that really wouldn't be fair. You guys have always been treated to 100% effort. The choice for me is either to blog wholeheartedly or not blog at all.

In light of this reality, the ledux is shutting down effective immediately. Comments will be disabled after a week. I do not envision ever returning to this domain, although my blogging and writing days are far from over. Those of you who are familiar with my work on other pages will continue to see my writing on those venues. I would again like to stress that my confidence in blogging has not been diminished but strengthened by my experience on this page. If the Lord blesses me with the time, the inclination will always be present to share my views through this online medium.

Again, I would like to stress what a pleasure the past twenty-two months have been. Those who write for the ledux know their opinions are being read by some of the brightest readers in the blogsphere. You guys have never ceased to amaze and humble me by your continued presence and participation; I owe you all an eternal debt of gratitude for your loyalty. A public thanks is also owed the fourteen ledux contributors who led the charge and sustained this site through more than a couple dry spells. Together we put together almost 600 posts (at a rate of .9 posts per day). The contributors made this a blog, you all made it the ledux.

If you link to the ledux, all reciprocal links will remain in place, although they will not be regularly updated. Please feel free to remove the ledux from your sidebar or otherwise update your blogroll. Please feel free to link to any of the articles in our archive.

I will always recall my time on the ledux fondly. It's been an honor to write here and a great preparation for discussions outside cyberspace.

Pax vobiscum.

Copper thefts, a local and global perspective

2006-11-21T21:11:00.000-08:00

This article is the current draft of my contribution to the Dec. issue of The Portland Messenger, a monthly newspaper by a club of nine homeschoolers from OR and WA.

Two men in a battered white pickup showed up in my front yard this fall, and asked my dad, Tim Straub, if they could relieve him of the sprawling pile of scrap metal left over from his home renovation. Mr. Straub consented, and they eagerly loaded their pickup with used pipe, heating units, and tangled electrical wires. The men said they were going to strip the copper wires with an exacto-knife, and expected to get $2.45 a pound. Such industriousness is rampant throughout the United States this year, but it is not matched with equal honesty.

Methamphetamine cravings, police say, drive people to steal wires, pipes, and air-conditioning coils for resale to recyclers. Thefts are on the upswing, as scrap copper has gone from 25 cents to over two dollars a pound over the last 16 months.

If meth is an escape, it serves to forget the pain one is causing others in order to acquire the dr^g – until supply runs out again. In light of meth’s best-known side effect, Solomon was right to warn against the path of the wicked, “for they cannot sleep till they do evil; they are robbed of slumber till they make someone fall.” (Proverbs 4:16)

Clark and Son Contractors found new wiring was stolen from two houses in the Meadow Glade subdivision project in October, which gained the thieves less than $25, but cost the builders $2,000 to repair one of the houses. The owners of Kiggins Bowl in Vancouver lost $10,000 worth of light fixtures and electrical wiring from their overflow parking lot in September. The defunct Alcoa aluminum smelter in Vancouver was hit numerous times the same month; one suspect got away with 50 pounds of copper wire worth $175, while Glencore, the owner, was scrapping the entire complex to cash in on its own. Another industrial building, the Brooklyn Roundhouse, which holds three steam locomotives owned by the city of Portland, was raided of $35,000 in copper wiring between Father’s Day and July 4.

Contractors protect themselves by hooking up a cable the same day they pull it through the conduit, so responsibility shifts to the owner, according to an industry source who supplies electrical contractors. He says calls reach him every week reporting thefts. Local recyclers increasingly team up with the building industry to catch thieves; they ask for ID, and call police about items like highway guardrails or bales of new wire.

The average U.S. home contains only 400 lbs. of copper. Homes, businesses, and construction sites lead to more shocking things: Bonneville Power reported in October that its substations were burglarized 45 times this year, costing them upwards of $140,000. Missing ground wires endanger crews repairing the damage, because the electricity then has no way to drain until the power is shut off. Compromising the system leads to power outages, like the two on Nov. 14 in West Rand, South Africa.

Locally, Bruce Wallace of Pasco, Wash., made news Oct. 11, when he cut a live cable carrying 7,200 volts. A driver saw smoke rising from the La Center utility regulator station, which turned out to be Wallace on fire within the fence. Wallace and the dozen or more killed in attempted substation thefts throughout the U.S. this year might turn out twice-victims of their own crime: over 200 brass vases have been stolen from Seattle-area gravesites.

Examples of copper thefts continue to fill Northwest newspapers. Since January 2006, the Oregonian has mentioned it 12 times, the Columbian 10 times, the Salem Statesman-Journal and Eugene Register-Guard each 4 times, and the Seattle Times thrice. (As of Nov. 18.) Copper thefts are both a local and nationwide phenomena, as is seen by searching Google News.

Things are worse in South Africa where gangs roll into construction sites with guns and wire pulling machines, or in Italy, where wires missing from railroad signaling devices delayed train passengers in Piedmont half an hour. Police in Naples seized twenty shipping containers of stolen copper ready to sail for China.

What caused record copper prices?

This year’s supply was hit by a labor strike at BHP Billiton’s Escondida mine, the largest in the world, and labor disputes and a rockslide at Codelco’s biggest mine Chuquicamata. Chile produces 25% of the world’s copper. A third of that comes from state-owned Codelco, but Codelco’s output was down 2% in the first nine months of 2006.

Chiefly, however, it was the expanding Chinese economy, which now consumes more copper, steel, and cement than any other country. China imports 80% of her copper, including some from the U.S., but most from Chile and Peru. Her demand makes less supply, so it costs more everywhere. State-owned China Minmetals Corp. is the biggest Chinese metals trader. While buying for consumption, it also adds to government stockpiles. May 11, the market peaked at $8,800 per metric ton in the London Metals Exchange (LME). In response, China dropped refined copper imports 37.7%, raised production 21%, and drove up exports 182%.

Now, as stockpiles dwindle, China’s demand may double to a rate of 8% next year, creating a supply shortfall of 252,000 tons, according to a Credit Suisse Group report. Refined copper on the LME was $6,900 a ton as of Nov. 20. But less of it will be imported in coming years, as China negotiates with Codelco to build a copper smelter on her coast to put out an annual 100,000 metric tons, and revises her minerals law to entice foreign miners to explore for new domestic mines.

Recycled copper is cheaper and greener, so Xinhua News proudly reported last July that nearly a third of the country’s copper consumption was recycled, and “waste” copper imports increased 25% in 2004. We now know this includes stolen property.

In 1958, Chairman Mao commanded Chinese families to smelt iron in backyard furnaces so China would become a world power in steel. Jung Chang recounts in her memoir, Wild Swans, how her parents were forced to melt down their cooking wok to meet the quota. Mao’s “Great Leap Forward” ended in famine after a couple years, and his successors are finding out economic production flourishes with respect for private property. The former leader of China didn’t respect others’ property; neither do copper thieves. Self-serving choices in our own neighborhoods are creating a small-scale but world-affecting tragedy, just like Mao did.

Graphs: price for 3-month copper futures (buyer's contract) on London Metals Exchange, Jan. 1, 2001-Nov. 21, 2006; Jan. 1, 2006-Nov. 21, 2006. Prices are per metric ton.

Taming Tigers: Avoiding Conflict over Taiwan

2006-11-19T01:05:00.000-08:00

There is only one issue at all likely to spark a nuclear war for the United States – Taiwan’s future. Ever since the losing party of the Chinese Civil War fled to the island over fifty years ago, its separation from the mainland has been the major source of tension between Beijing and Washington, as the People’s Republic of China has sought to terminate a de facto independence the United States has sought to preserve. In the past, changing circumstances have caused the United States to change its position on Taiwan from an explicit security guarantee towards strategic ambiguity, and today, further changes arguably warrant further change.

Preventing conflict remains crucial to the United States. Any conflict would savage the American economy by disrupting trade and partially destroying the region’s industry (1). Moreover, such a crisis would place the United States in a hard dilemma in choosing a response as on the one hand, interfering would draw us into a costly (and always possibly nuclear)(2) war, while on the other, repudiating past hints and nods and past interpretations of the Taiwan Relations Act by standing aside would seriously undermine our credibility with current and potential allies. As a result, regardless of the outcome, conflict is antithetical to American interests.

However, and sadly for the United States, conflict is becoming more likely. For China, the present time is one of extensive military modernization(3), modernization that by shifting the military balance across the straits, makes it increasingly safe for China to push for reunification absent American intervention(4). Yet for Taiwan, the present time is one of increasing nationalism as the Taiwanese are growing attached to their independence by emotional ties that make it increasingly unlikely they will peacefully submit to reunification(5). While it would be foolish to extrapolate overmuch, increasing power on one side of the strait and increasing resolve on the other are certainly increasing the danger of conflict.

As a result, some change in American policy is justified. Because it would be foolish to abandon a powerful ally(6) to eventual absorption into a potential rival, the United States must instead use its overwhelming power to positively influence the situation, to at once deter China from attacking and Taiwan from provoking its nemesis. In order to prevent conflict, the United States should gradually abandon much of its strategic ambiguity.

Because the future remains uncertain, this does not entail anything drastic or sudden, only more adequately signaling American intentions in the face of increasing instability. Continuance of the current policy of strategic ambiguity risks creating misunderstanding and a tragic situation in which the opposing sides both believe the United States will act as they desire in a crisis. In the short term, therefore, it would be prudent for the United States to begin clarifying its position publicly both by affirming the essence of its alliance with Taiwan through such hard measures such as acceding to a free trade agreement and also by delineating the alliance’s limits through frank declarations of when we would not support Taiwan in a war against China (e.g. in case of unilateral declaration of independence). In order for us to avoid further war on the straits, we have to make our position clear.

-----------------------------------------------------------

1 Bruce Eihorn, Matt Kovac, Pete Engardio, Dexter Roberts, Frederick Balfour, and Cliff Edwards, “Why Taiwan Matters,” Business Week, May 16, 2005. The article states Taiwan is the “hidden center of the global economy,” mainly because it is the world’s leading manufacturer of information technology (IT). As of the article’s printing, Taiwanese firms produced 83% of the world’s wireless LAN equipment, 79% of PDAs, 70% of chip foundry services, 72% of notebook PCs, 68% of LCD monitors, 66% of cable modems, 36% of semi-conductor packaging, 34% of digital cameras, and 33%of servers.

2 Alexandra Harney, Demetri Sevastopulo, and Edward Alden, “Top Chinese general warns US over attack,” Financial Times, July 14, 2005. The article quotes General Zhu Chenghu, also a professor at China’s National Defense University as stating that in his personal opinion that in a crisis over Taiwan “If the Americans are determined to interfere [then] we will be determined to respond[.]”

“If the Americans draw their missiles and position-guided ammunition on to the target zone on China's territory, I think we will have to respond with nuclear weapons,”

“We . . . will prepare ourselves for the destruction of all of the cities east of Xian. Of course the Americans will have to be prepared that hundreds . . . of cities will be destroyed by the Chinese.”

3 Lieutenant Colonel David A. Southerland and Colonel George T. Doran, “Is U.S. Conflict with China Inevitable?” USAWC Strategy Research Project, U.S. Army War College, March 18, 2005. “In terms of real growth, China has given its military double-digit budget increases for 14 out of the last 15 years.”

4 Ellis Joffe “China ’s Military Buildup:Beyond Taiwan?” Shaping China’s Security Environment: the Role of the People’s Liberation Army, Strategic Studies Institute, US Army War College, October 2006. “the bottom line seems to be that an acceleration of China ’s military modernization threatens stability in the Taiwan Straits.”

5 “Turning Taiwanese,” Economist, January 15, 2005. The article cites a poll by Taiwan's National Chengchi University showing “a remarkable shift in Taiwanese self-perception over the past 12 years. The number of those identifying themselves as Taiwanese has risen from 17% to 41%, whereas those who see themselves purely as Chinese have dropped from 26% to 6%.”

6 “U.S. Military Spending vs. the World,” Center for Arms Control and Non-proliferation, February 06, 2006, http://www.armscontrolcenter.org/archives/002244.php. Accessed October 31, 2006. According to the preceding source, the Republic of China (Taiwan) had the 19th largest military budget in the world, at the beginning of the current year. In addition, according to the CIA World Factbook, at the beginning of 2006, the Republic of China (Taiwan) had the 17th largest economy in the world, roughly the size of Australia’s and one-third that of the United Kingdom’s.

Is there private property in space?

2006-11-15T16:41:00.000-08:00

Grotius, the political philosopher after whom one of our contributors has styled himself, once postulated that no one country could own the ocean. He wrote about his thoughts in Mare Liberum, a book that Oregon State University analyzed:

Mare Liberum talks about the rights of England, Spain, and Portugal to rule over the sea. If these countries could legitimately control the seas, this would prevent the Dutch from sailing, for example, into the East Indies. Grotius argued that the liberty of the sea was a key aspect in the communications amongst peoples and nations. No one country can monopolize control over the ocean because of its immensity and lack of stability and fixed limits.

Note his reasoning: because of its “immensity” and lack of “fixed limits” the ocean should remain an unowned territory. While we do allow countries to claim jurisdiction for the sea immediately adjacent to their land, Grotius’ philosophy largely survives today. And the same thinking can easily be applied to space. Space is immense (infinity is much bigger than the defined limits of the sea; infinitely bigger, in fact). It is unstable and it has no fixed limits.

Is space the new ocean?

Hat Tip: Robot Guy

YouTube and MySpace: The new era of passive copyrights

2006-11-14T12:27:00.000-08:00

Let’s face it: YouTube is big. The viral video distributor virtually (no pun intended) created a new market and fulfilled a formerly nonexistent demand for homemade videos. Only now you can find just about anything on YouTube, from TV shows and comedy skits to compromising statements from politicians. Much of the material is unlicensed or protected under the very permissive Creative Commons, but much of the videos are under copyright. We’ve looked at this before and examined the economic consequences of asking your biggest distributor to stop carrying your content, this post takes a retrospective look at the issue.

Right now, if a copyright holder has a problem with YouTube’s hosting of protected content, all they need do is notify YouTube, present proof of ownership and request that the offending file be removed. YouTube does it all the time. Warez News (Warez is a leading P2P organization and an open proponent of piracy) quoted Google spokesman Ricardo Reyes who explained:

"We have procedures in place that allow copyright owners to tell us if their content is placed on Google Video without authorization," said Reyes. "When we receive appropriate notice, we quickly remove the content from Google Video."

With Google’s recent acquisition of YouTube, we can expect a similar policy from the video giant.

YouTube offers users a handy form for copyright infringement notification. It’s a six step process full of legalese that puts the entire burden of notification on the copyright holder.

Websites that host viral material are really well insulated from the copyright holders whose intellectual property rights they may be violating. Even if YouTube hosts a video that turns out to be protected, the holder has very little legal remedy. As the Harvard Journal of Law and Technology, Spring 2006 (19 Harv. J. Law & Tec 253) explains:

[T]hose who actually stored information for consumers for mass distribution to others, such as GeoCities or Tripod, or today's YouTube or MySpace [are] exempted…from liability so long as they acted expeditiously to remove infringing material after being notified of its presence by a copyright holder.(Footnotes omitted)

So even if YouTube sold millions of dollars in advertisements to sponsors who watched gleefully as millions of viewers watched the offending video and viewed their ads, the copyright holder has no claim to infringement as long as YouTube removes the file when requested. This is another example of how the law protects good faith violators.

Despite – or maybe because of – this protection, the Santa Clara Law Review (46 Santa Clara L. Rev. 921) sees YouTube as the next copyright battleground:

[T]he next great battleground will be over technologies characterized by the "inverse Grokster" scenerio. These disputes will pit content owners against legitimate organizations seeking to capitalize on the demand for interactivity, rather than overt peddlers of technologies intended to deliver pirated works. They will involve consumer-oriented technology companies, such as Google, MySpace, and YouTube, that conduct their businesses without the apparent evidence of "statements or actions directed to promote infringement," yet admittedly maintain day-to-day operations with varying degrees of actual knowledge of direct infringement by users of their services. As Justice Breyer aptly stated in his concurring opinion in Grokster: "Sony's standard seeks to protect not the Groksters of this world ... , but the development of technology more generally. And Grokster's desires in this respect are beside the point."

No software is necessary to pirate with YouTube – most users will probably have no idea what they are watching is protected – so viral video distributors make piracy much easier.

One bright spot for content makers is that it is much easier to remove offending content from YouTube than a P2P network. The P2P systems use the storage on thousands of users PCs to store copyrighted works, while YouTube files are stored on a central server. YouTube content can be purged relatively easily, while there is little anyone can do to remove P2P files.

The law right now seems to be the result of necessity rather than design. Decisions from Sony to Grokster have provided short term fixes to the increasingly complex IPR problems. Expect changes in the near future that provide more direction.

That's what we were afraid of...

2006-11-14T09:31:00.000-08:00

The Philadelphia Inquirer reports:

With the loss of a Republican majority and his chairmanship of the Senate Judiciary Committee, Sen. Arlen Specter (R., Pa.) said President Bush may be forced to nominate more moderate judges should other Supreme Court vacancies occur.

Specter, who will yield his gavel in early January to Sen. Patrick J. Leahy (D., Vt.), said the Democrats might want to slow the process of judicial confirmations - or even halt them - as the next presidential election approaches in 2008.

"It could mean that the president would have to select a more moderate nominee," Specter said.

With the court rapidly aging, JPS is 86 and Ginsburg has intoned that she may be stepping down to take care of her ailing husband, the next couple years may be a crucial time for the court. Stevens is widely regarded as one of SCOTUS' most liberal justices and Ginsburg has the ability to scare even the most calm moderates with her progressive opinions. If President Bush wants to change the structure of the court, a desire that many conservatives have in light of its recent bad decisions, this will be the time to do it.

Immediately after the election, when it was unclear whether the Democrats yet had control of the Senate, I mentioned that a big bright spot for the GOP is that they were likely to retain control of that body. Now that the Republican Party has lost control (Joe Lieberman and Bernie Sanders will caucus with the Dems) and it looks like Specter is right. Bush may need to nominate a moderate or the more dangerous "stealth" judge for the top spot in order to get his pick through a hostile Senate.

Amazing in this story is Specter's willingness to attack his own party. While this shouldn't come as a big surprise given his willingness to openly question President Bush and criticize members of the GOP, it is disconcerting.

Homeschooling: Disconcerting Scientists?

2006-11-13T20:19:00.000-08:00

In a November 11th news article on the New Scientist breaking news website, Amanda Gefter presents a shocking expose of the rapidly growing homeschool movement. Under such headings as "Overthrow of Matirialism" and "Evangelical Interns" Gefter breathlessly informs readers that "home-schooling, with its considerable legal support, is quietly transforming the landscape of science education in the US, subverting and possibly threatening the public school system that has fought hard against imposing a Christian viewpoint on science teaching." In the same article, Brian Alters of McGill University laments the rise of homeschooling and its effects on scientific education. "There are probably some wonderful home-school parents, some of whom may be evolutionary biologists themselves. But I have a feeling after talking to a lot of home-schoolers that this is the minority," says Alters.

The article goes on to reveal the "unorthodox" and "disconcerting" views often taught at home that "may be skewing science education" throughout the United States. While heavy on grim warnings about the "danger" of such teaching, the article somehow omits any discussion of the actual nature of the "danger". The entire threat, according to the Scientist, is comprised of new, and different theories like Intelligent Design and homeschooling, that threaten the status quo and subvert traditional theories and institutions. Vague allusions to a "well organized" "top down" homeschool movement that often questions the theory of evolution in textbooks, seems to be enough to alarm the readership of New Science Magazine, but it does little to establish any real reason for hysteria. Still, such hysteria as evidenced in the New Science piece, is indicative of real change within the scientific, and wider cultural context. Apparently the New Scientist is truly impressed with the influence and prospects of the homeschool movement, as is evidenced by the final words of the article, voiced by creationist Jay Wile Ph.D: "Home-schoolers are going to be leaders in their field. They are going to change science and how science is done."

Taken as a whole, the New Science article sounds suspiciously traditionalist. Like Bryan in the Scopes Monkey Trial, it appeals to "orthodoxy" and laments the coming changes in science and education. Unfortunately for the authors, stemming the tide of historical change is an impossible task. Like it or not, it isn't difficult to anticipate who the leaders of tomorrow will be.

Ayers v. Belmontes (2006)

2006-11-13T16:49:00.000-08:00

The Supreme Court ruled today in Ayers v. Belmontes (2006), a case out of the 9th Circuit that challenged jury instructions in death penalty cases. The 5-4 decision deals with Fernando Belmontes’ murder trial in 1982 when the jury returned a guilty verdict and sentenced him to die. As the majority opinion written by Justice Kennedy explains:

The trial court, following the statute then in effect, directed the jury, with other instructions and in a context to be discussed in more detail, to consider certain specific factors either as aggravating or mitigating. The trial court further instructed the jury to consider “[a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.” Under the then-applicable statutory scheme this general or catchall factor was… referred to as “factor(k).” (citations omitted)

In other words, the jury was asked to look at anything that made Belmontes a good person or, in the reverse, anything that would aggravate the circumstances of his offense. The jury was asked to find something that would justify keeping him alive or encourage a death sentence. The specific instructions read:

After having heard all of the evidence and after having heard and considered the arguments of counsel, you shall consider, take into account and be guided by the applicable factors of aggravating and mitigating circumstances upon which you have been instructed.

If you conclude that the aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence of death. However, if you determine that the mitigating circumstances outweigh the aggravating circumstances, you shall impose a sentence of confinement in the state prison for life without the possibility of parole…

I have previously read to you the list of aggravating circumstances which the law permits you to consider if you find that any of them is established by the evidence. These are the only aggravating circumstances that you may consider. You are not allowed to take account of any other facts or circumstances as the basis for deciding that the death penalty would be an appropriate punishment in this case.

However, the mitigating circumstances which I have read for your consideration are given to you merely as examples of some of the factors that you may take into account as reasons for deciding not to impose a death penalty or a death sentence upon Mr.
Belmontes. You should pay careful attention to each of these factors. Any one of them standing alone may support a decision that death is not the appropriate punishment in this case.”

Belmontes felt this standard was too limiting. Because the Factor (K) keeps the jury from looking forward, to predict what good Belmontes would do if allowed to remain alive, Belmontes’ real value to society could not be assessed.

SCOTUS has considered Factor (K) challenges on two prior occasions. In Boyde v. California (1990),for instance, the court ruled that

proper inquiry is whether there is a reasonable likelihood that the jury has applied the instruction [Factor(K)] in a way that prevents the consideration of constitutionally relevant evidence. Although a defendant need not establish that the jury was more likely than not to have been impermissibly inhibited by the instruction, a capital sentencing proceeding does not violate the Eighth Amendment if there is only a possibility of such an inhibition.

The court used the Boyde standard in determining the Ayers case. Justice Kennedy intoned:

As the Court directed in Boyde, we inquire “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.”(citations omitted)

Is the fact that Belmontes may at some nebulous point in the future become a contributing member of society relevant? Should the court reward him with leniency because he can demonstrate the risk of future rehabilitation? And is the prohibition of “future value to the community” unconstitutionally strict?

In the Belmontes’ original trial hearing, one of the jurors became confused about the Factor(K) rule and asked the judge. The following dialogue took place:

JUROR HERN: The statement about the aggravation and mitigation of the circumstances, now, that was the listing?
THE COURT: That was the listing, yes, ma’am.
JUROR HERN: Of those certain factors we were to decide one or the other and then balance the sheet?
THE COURT: That is right. It is a balancing process. Mr. Meyer?
JUROR MEYER: A specific question, would this be an either/or situation, not a one, if you cannot the other?
THE COURT: No. It is not that.
JUROR MEYER: It is an either/or situation?
THE COURT: Exactly. If you can make that either/or decision. If you cannot, then I will discharge you.
JUROR HAILSTONE: Could I ask a question? I don’t know if it is permissible. Is it possible that he could have psychiatric treatment during this time?
THE COURT: That is something you cannot consider in making your decision.

The Jury’s questions were very reasonable, given the complexity of the Factor(K) rule and their desire to see the law upheld. The judge’s answers were also within the law. As Justice Kennedy explains, the 9th Circuit court of appeals interpreted this part of the record to indicate confusion on the part of the jurors and deemed that confusion to create an unconstitutional vagary in the law:

The Court of Appeals decided Juror Hern’s questions indicated she thought (incorrectly) that only listed mitigating factors were on the table—an error, in the Court of Appeals’ view, that should have prompted a clarifying instruction confirming that all the mitigating evidence was relevant. The Court of Appeal further supposed the response to Juror Hailstone’s question compounded the problem, since psychiatric treatment presumably would be necessary only in aid of future rehabilitation. (Citations omitted).

Justice Kennedy refuted that logic with his next breath:

The Court of Appeals’ analysis is flawed. To begin with, attributing to Juror Hern a dilemma over the scope of mitigation is only one way to interpret her questions, and, as the California Supreme Court observed on direct review, it is not necessarily the correct one. It is at least as likely that the juror was simply asking for clarification about California’s overall balancing process, which requires juries to consider and balance enumerated factors (such as age and criminal history) that are labeled neither as mitigating nor as aggravating. As Juror Hern surmised (but sought to clarify), the jury itself must determine the side of the balance on which each listed factor falls. (Citations omitted)

The argument in Belmontes aside, this case brings up an interesting question about the role of mitigating factors in determining a punishment. Should a convict’s prior behavior dictate his current punishment? Should a penalty be less stringent for those who contribute more to society?

If we as a society determine that past behavior can make a convict ineligible for the death penalty, why limit future behavior? Why even consider these subjective mitigating factors at all?

That’s a question that was brought up recently with the execution of Tookie Williams, a violent murderer and gang leader who had also published several children’s books and campaigned against youth violence from prison. Cynics believe that Williams wrote as a last ditch attempt to save his own hide. Others look at that story and see a man who genuinely wanted to turn his life around.

I am personally skeptical of mitigating circumstances like Factor (K) and their logical extension, the philosophy the court ruled against today. If someone commits a crime, they should be punished justly, independent of whatever they did in the interim or what kind of saint they were when not killing people. Trials are not a determination of a person’s benefit to society; they are an opportunity to make a specific unjust situation right. Most details should be totally irrelevant and inadmissible in a courtroom setting, only the facts that are most germane to the issue at hand should be allowed.

Happy Veterans Day!

2006-11-10T14:02:00.000-08:00

As one of eleven federally recognized holidays, today is a day off from work and school. If you work for the government, it’s a chance to kick back and enjoy a day off. If you work for a private company, the odds are Veterans Day will come and go unheralded. At the public community college I attend, the professors informed the students that today would be a “holiday” and that the campus would therefore be closed. No one mentioned what we were celebrating; the fact that we don’t have to attend school today is all anyone cared about.

Well, today is Veterans Day, the American version of Armistice Day, which was set aside to commemorate the signing of the armistice between the allies and Germany that officially ended hostilities on the western front. Today, Veterans Day is also a time to celebrate all those who have served in the armed forces and are still living (Memorial Day is set aside for those who have passed on).

I have celebrated Veterans Day and its close cousin, Armistice Day, in two countries. Last year at this time I was in France where the eleventh of November is a big deal. Military parades and demonstrations, regular bell tolling, open air sermons by Catholic priests and general celebration greeted the small coastal town of Saint-Raphael where my family and I were staying. Men and women from the armed service were shown the gratitude of the people they protected and, I was told by my relatives, similar celebrations were happening all over France and Western Europe. Armistice Day was as big as the 4^th of July is here in the states, which is amazing given that the United States spends a lot more on defense than France does and has so many more troops.

You’d think we would support our military more. Sure we have isolated pockets of Veterans Day celebrations, but this patriotic merrymaking is the exception. Most Americans will probably pay as much attention to this holiday as Columbus Day, which isn’t much.

American soldiers take a lot of flak. Not only must they suffer all the rigors of war, but when they return home they are welcomed with more questions than praise. Because of Abu Grahib, the soldier lives in a cloud of suspicion. Because of John Kerry, the soldier is considered incompetent. Because of Iraq, the soldier is considered a victim. The servicemen I know don’t see themselves that way and resent the media glare that turns a few bad apples into stereotypes.

This Veterans Day, remember the Armistice, but more importantly, say thanks to a soldier and tell them what their sacrifice means to you.

GOP’s Failures: Pelosi’s thank yous

2006-11-10T12:07:00.000-08:00

Richard A. Viguerie, author of Conservatives Betrayed: How George W. Bush and Other Big Government Republicans Hijacked the Conservative Cause, wrote a poignant thank you note describing some of the Republican Party’s biggest mistakes leading up to the mid-term election. As you read them, think first about what the GOP could have done to avoid the traps these scenarios represent and then consider what the Democratic Party will do differently:

Nancy Pelosi says thank-you to…

10. To Vice President Cheney, Bill Kristol, and their cell of “neo-conservatives,” for turning the Republicans into a Trotskyite party—just what Americans have always wanted.

9. To Rush Limbaugh, for his display of “compassionate conservatism” toward Michael J. Fox a week before the election.

8. To outgoing House Speaker Dennis Hastert (R-Illinois), for transforming a personal scandal involving Rep. Tom Foley into a GOP scandal.

7. To Sen. Ted Stevens (R-Alaska) and Rep. Don Young (R-Alaska), for creating an engineering marvel worthy of the Roman Empire—their beloved Bridge to Nowhere.

6. To Ken Mehlman, Chairman of the Republican National Committee, for taking conservative issues off the agenda, except for his direct mail fundraising letters.

5. To former House Majority Leader Tom DeLay (R-Texas), for paring every wasteful dollar out of the federal budget, thus creating a nasty image of the Republicans as the party of Uncle Scrooge.

4. To Karl Rove, for not reading Conservatives Betrayed, which would have awakened him to the dangers of making real conservatives unhappy.

3. To “Brownie” (former FEMA director Michael Brown), for doing such a heck of a job during Katrina, letting Americans see how prepared the Bush Administration was for a scheduled natural terrorist attack.

2. To Jack Abramoff, philanthropist, for his unlimited generosity toward his Republican friends.

And,

1. To President Bush and Secretary of Defense Donald Rumsfeld, for keeping their divorce a secret until the election was over.

Borat banned in Russia

2006-11-10T10:08:00.000-08:00

The Hollywood Reporter has the story:

Russian audiences will not be seeing 20th Century Fox's "Borat" because local distributor Gemini Film has pulled the plug on a theatrical release after authorities hinted that they might ban it.

Officials at movie-licensing body the Federal Agency for Culture and Cinematography, who were shown Sacha Baron Cohen's wacky satire, told Gemini not to release the film because it contained ethnic and religiously offensive material.

So Borat was banned, right? Not according to the Federal Agency for Culture and Cinematography:

"We have not banned the film. We recommended that the film not be released because it contains material that could offend nationalities or religions," Yuri Vasyuchkov, head of the agency's registration department, said in an interview Thursday.

What’s the difference between banning and “recommending?” I can just picture the exchange that Gemini and Putin’s police agents had where they determined that not running the picture would be the best course of action.

Think about Russia’s logic. Because Borat might be considered offensive by some segments of the Russian population and might incite said segments to violence, the video should be banned. Couldn’t that same logic be used to keep people from reading the Bible? In Indonesia, the Muslims rioted in the streets to protest Christianity. Similar violence has occurred in Russia as well. A nation that is willing to censor material it disapproves of will see no limit to its regulations.

That’s the reality that one Russian news source, Pravda.ru, felt recently when it was deprived of publication materials by the Federal Security Service of the Russian Federation. As I said then:

The freedom of expression appears to be an endangered in Russia. But that’s an understatement: Americans have long known that the Kremlin press pool is heavily restricted by the desires of Vladimir Putin, a former KGB officer. What reporters can say about the government is routinely limited. And why should we be surprised at this new prohibition? When the state chooses to censor, no speech is free.

Borat is another example of this censorship.

UPDATE: In the United States, a couple of college students are suing in an American show of post facto censorship. According to the Washington Post:

The legal action filed Thursday on their behalf claims they were duped into appearing in the spoof documentary "Borat: Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan," in which they made racist and sexist comments on camera.

The young men "engaged in behavior that they otherwise would not have engaged in," the lawsuit says...

The lawsuit claims that in October 2005, a production crew took the students to a bar to drink and "loosen up" before participating in what they were told would be a documentary to be shown outside of the United States.

Unless the students were indeed intoxicated when they signed their release forms, this case is unlikely to get anywhere. If they were drunk, they may have a claim.

Inside Britney Spear’s libel loss

2006-11-10T09:11:00.000-08:00

Warning: Some material may not be appropriate for all ages.

It’s been a tough week for pop star Britney Spears. First she filed for divorce with loving hubby Kevin Federline and then her $13 million libel suit against Us Weekly was dismissed. Both of these events are noteworthy for the singer/entertainer/sex icon, but one of them has special significance for a legal issues and current events blog like the ledux. Since divorces are exceedingly common these days (60% of marriages formed today will end that way), it isn’t that extraordinary that Britney is divorcing K-Fed’s (or Fed-Ex, as he’s now known). It’s sad, it’s a sign of the times and it’s undoubtedly a big deal for the Spears family, but in the whole scheme of things, one Hollywood divorce is nothing to sweat over.

The libel suit, on the other hand, is significant. Asia Media reports:

She French-kissed Madonna on national television. She filmed her naked husband in the shower for television viewers. And her gyrating navel appears in countless images, both video and still.

Against that backdrop, a Los Angeles judge tossed out Britney Spears' defamation lawsuit against Us Weekly, ruling that the pop star with the hypersexed image cannot be slimed by published rumours that she and her husband made a sex videotape.

"The plaintiff herself has put her modern sexuality squarely, and profitably, before the public eye," Superior Court Judge Lisa Hart Cole said in dismissing the 24-year-old pop star's legal defamation action late last week.

Because the law looks at Spears as an all purpose public person, she has to prove actual malice in a libel case. Actual malice means that the newspaper knew the information was wrong and published it anyway or published it with reckless disregard for the truth. This is the highest level of negligence and the hardest to prove.

News outlets are given this extra protection when discussing celebrities for two reasons. First, public people are covered so heavily in the news that the risk of a mistake is drastically higher for celebrities than average citizens. Secondly, if a celebrity is libeled, there are many ways to clear her name while an average citizen must live on without additional media coverage. If Britney Spears called a press conference today to refute the allegations made by Us Weekly, a passel of entertainment newspapers would show up. If I were libeled, I might make an entry here to try to clear my name or call up my friends to deny the story, but my sphere of influence is nothing compared to the readership of Us Weekly.

Interestingly enough, the fault issue was not what made Judge Cole dismiss the suit. Rather it was Spear’s already hypersexual image. How defamatory is a sex tape when Spear’s sexuality has been a big discussion topic for almost half a decade?

Some readers may be upset that Spears will never get her “day in court;” maybe it’s the titillating nature of the case or perhaps we just feel that every lawsuit should go before a jury. While this dismissal does deprive us of some potentially entertaining hearings, it will save the tax dollars of people of Los Angeles and leave the courts free to handle a meritorious suit in the future.

Evolving Personalized Information Construct

2006-11-09T11:51:00.000-08:00

I posted about this when it first came out last year, but I think it is interesting now that a little time has elapsed to examine EPIC’s claims once again.

We don’t yet have Google Grid, although Google Base comes pretty close. Bloggers could conceivably end up replacing conventional journalists, but there will probably always be paid reporters even if they write for online journals instead of print publications. Arguably the only thing that separates a blog from a newspaper like the London Times is that the Times has a print edition; if bloggers felt they would reach more people by printing their thoughts instead of publishing them online, I am sure they would do so.

EPIC raises a lot of questions about the future of the internet and the position Google, Microsoft and other key web players will have in the next few years. Regardless of the skepticism expressed in the production, the internet has produced some of the results EPIC predicted.

A bipartisan Congress?

2006-11-09T11:18:00.000-08:00

A. Shannon had the following comment on my silver lining post yesterday:

Someone told me that one good thing about the Dems having control of the House is that they may be more cooperative since they'll feel less threatened. Your thoughts?

Don’t bet on it. The Democrats have been burning for control since they lost power in ’94. That passion for clout will probably express itself in a mini explosion on the hill as a few key liberal agenda items are pushed through. Sure Nancy Pelosi will put a good face on the explosion, but even the soon-to-be majority leader can’t hide her glee. As CNN tells us:

Speaking at the Capitol on Wednesday, Pelosi told reporters that Tuesday's Democratic landslide in the House elections was indicative of Americans desiring a "new direction," including a return to bipartisan civility and fairness in the nation's economy…

But Pelosi, 66, isn't afraid to dish out her own jabs, and said that things will be different with Democrats in power -- and with the House gavel in a woman's hands for the first time in the chamber's 217 years.

She has shot back at Bush, calling him everything from "incompetent" to "in denial and dangerous." She also has repeatedly threatened that once the Democrats take the House helm, "the president will have to have a different attitude now that he won't have a rubber-stamp Congress."

When unguarded, Pelosi reveals her true liberal resolve. And holding the majority is not conducive to guarded comments.

Despite the Democrat’s façade of bipartisanship, expect them to largely ignore the minority’s wishes. It seems that the party out of power is the one promoting bipartisan interests and now that the Dems have control, they really don’t have any reason to listen to the GOP. Pelosi described it more like a boxing match than a political discussion, saying:

You go into the ring, you have to be ready to take your hits, and that's part of it.”

As far as feeling threatened goes, I am curious what was making the Democrats feel threatened? While they had the majority, the GOP was unable to pass any major reforms, whether Social Security, immigration, tax, marriage protection, euthanasia laws, etc. We had a small tax cut, but none of the major restructuring that is needed to clean up the IRS. This election, all the GOP really had to campaign on was the War in Iraq, an issue so controversial that it could probably be considered as much of a disadvantage as campaign issue. Let’s face it: in 14 years of holding the reins the Republican Party was ineffective. Unless I am missing something, the Dems had no reason to feel threatened.

In sum, don’t expect the Democrats to come off the blocks this January looking for compromises. They have a mandate and, worse, they know they have a mandate. From my reading of the tea leaves, a minimum wage increase is first on the docket.

Good-bye Rummy

2006-11-09T10:01:00.000-08:00

Donald Rumsfeld, America’s Secretary of Defense, retired yesterday two days before Veterans Day seemingly the scapegoat of a party that lost big in the mid-term elections. In discussing Rumsfeld’s departure, President Bush had nothing but kind words:

Don[ald] is the longest-serving member of my Cabinet. And next month he will reach another milestone when he becomes the longest-serving secretary of defense in the history of our nation.

I appreciate his willingness to continue serving until his successor is in place because, in a time of war, our nation cannot be without a strong and steady hand leading our Department of Defense.

Don has served in times of great consequence for our nation. Few will forget the image of Don Rumsfeld as he helped rescue workers carry the victims from the rubble of the Pentagon on September the 11th, 2001…

History will record that on Don Rumsfeld's watch the men and women of our military overthrew two terrorist regimes, liberated some 50 million people, brought justice to the terrorist, Zarqawi, and scores of senior Al Qaida operatives, and helped stop new terrorist attacks on our people.

America is safer and the world is more secure because of the service and the leadership of Donald Rumsfeld.

To me, Rumsfeld is the epitome of excellence when it comes to dealing with the media. He comes across like a crusty old grandpa who knows he is right and has the wit to run circles around the petty journalists who try lamely to pin him down with their questions. To Rummy, a reporter’s query is nothing but an irritation on the way to getting his message to those who watch from home or listen to his conferences over the radio.

Rumsfeld was on with the Bush Administration since day one. He is one of the last remaining members of the President’s original 2001 cabinet (Elaine Chao, United States Secretary of Labor, is the only remaining cabinet member from Bush’s first year in office) and has come to define Defense Secretary. Rummy served as both the 13^th and 21^st Secretary of Defense under two different presidents. He was well qualified for his position and served his country well both times he was called on.

The only regret I have about the Rummy situation is how long he was in office. If it was in the Administration’s cards to use the Secretary of Defense as a scapegoat, the move should have been made a month or so prior to the election. At that point it was apparent that Rumsfeld’s popularity was rapidly declining and that his use to the GOP was in doubt. As it is, his resignation is more of a salvage attempt; a recognition of a big election defeat and a concession to the voters.

Despite this miscalculation, Rummy’s service has been excellent. As President Bush said in his remarks:

Don once famously said there are known knowns, there are known unknowns and there are unknown unknowns.

Well, Mr. Secretary, here is a known known: Your service has made America stronger and made America a safer nation. You will be missed. And I wish you and Joyce all the best in the years to come.

Don Rumsfeld's a tough act to follow.

Why Mommy is a Democrat

2006-11-08T16:15:00.000-08:00

While reading through my email this afternoon, I came across a gmail advertisement for a new book, titled “Why Mommy is a Democrat.” The work is a cross between socialist propaganda and children’s picture book. It extols the virtues of redistribution of wealth, compulsory education, government ensured social stability and other liberal hallmarks. Authored by Jeremy Zilber, a lifelong democrat and political activist from Wisconsin, the book hopes to hook little kids on the liberal kool-aid long before they have the cognitive ability to reason for themselves.

The following are from the website's sample pages:

Doesn't this remind you of Mao's little red book? These pictures have no logic at all, but are colorful and paint the Democratic Party as bright and happy. Democrats are safe, educated and share their toys. Is that accurate? Perhaps, if you read a lot into every frame. As is, these pictures are nothing more than propaganda and a great way to plant liberal seeds in the mind of a three-year old.

Maybe we conservatives should come up with a picture book of our own.

Hillary Clinton is biggest spender in mid-term election

2006-11-08T14:24:00.000-08:00

The New York Times reports:

Senator Hillary Rodham Clinton has spent more money in the midterm election cycle than any other politician running for office this year, campaign finance records show, investing more than twice as much as most candidates in tight races across the country.

To secure her Democratic re-election bid in New York, Mrs. Clinton spent $29.5 million through the middle of October, according to the Federal Election Commission, suggesting that she may have her sights on a future national campaign. While much of the amount is devoted to television advertising, it is the bills for catering, flowers and photography that elevated her tally far above other Senate candidates’.

While Senator Rick Santorum, Republican of Pennsylvania, spent $21.5 million through the same time period, records show, his spending report comprises bills like $30.33 at Papa John’s pizza, $59.50 at Panera Bread and $74.34 at the Olive Garden.

Not so for Mrs. Clinton, whose campaign reported sending a $6,585 check to Flutterbyes for flowers in Las Vegas, $5,397.50 to Le Petit Gourmet Catering in Glendale, Colo., and $80,000 to Tavern on the Green in Manhattan…

The chairman of the Federal Election Commission, Michael E. Toner, said only a handful of Senate candidates had ever spent more. The spending patterns of the Clinton campaign demonstrated “an extraordinary burn rate,” he said, which was particularly striking considering she did not seem to have a serious challenger in John Spencer, her Republican rival.

That’s something to think about next time you consider donating to Senator Clinton.

Hillary Clinton was running for what many considered to be a very safe seat. It’s New York and she is a Clinton. How difficult should reelection be? Apparently hard enough to justify six thousand dollars for flowers and an eighty thousand dollar tavern bill.

Democrats take control of the House of Representatives: The Silver Lining

2006-11-08T14:14:00.000-08:00

Yesterday the American people elected en mass to send America in another direction. With the mid-term elections, Democratic candidates swept across the fruited plain and pulled off several amazing upsets to take control of the House of Representatives for the first time since 1994.

It is amazing how quickly it happened. When I woke up on Tuesday, the Republican Party was not only in control but appeared poised to suffer only a partial hit. It looked like the GOP would get out all right. By day’s end, with several states and millions of ballots yet to be counted, the Democratic Party was not only in control, but had a resounding victory. As I write this, Democrats are projected to have picked up 35 seats, well beyond the 15 they needed to become the majority party.

As a registered Republican, ardent conservative and avowed supporter of the GOP platform, this is a defeat for my ideology. In campaign after campaign and race after race, across 435 House seats, a worldview that isn’t mine was affirmed. That’s a defeat; a painful one, too.

But as one who exhales optimism in every breath, I didn’t stay depressed for long. I see four things that represent the silver lining of this cloudy election; ways that conservatives can be less disappointed in the results and maybe even have cause for hope.

GOP must return to its base

In a fitting representation of the results, a local radio talk show host called the election a “wake-up call.” The Republican Party has tried to move to the left consistently over the last couple years in order to pick up swing voters. Reasoning that it has the conservative voters “locked up” and the moderates are waiting for a general appeal candidate, many GOP politicians compromised significantly to get reelected. By throwing a bone to the liberal ideology, conservatives tried to appear reasonable and felt that by leaving their base behind they could win an election. As we saw yesterday, it backfired.

In California, GOP candidate Richard Pombo lost reelection despite being a strong incumbent candidate partly because of his willingness to debate on his challenger’s turf. Instead of sticking to the family values that got him elected in the first place, the McNerney/Pombo race became a discussion of the War in Iraq and energy policy. Pombo’s base just wasn’t energized yesterday. After all, why vote for a candidate who spends the majority of his campaign resources defending himself against baseless attack ads?

As the Republican Party gears up for the 2008 cycle – I know, that’s a tiring thought so soon after an election – it needs to consider heartland conservatives as it decides on a Presidential nominee and fields congressional and senate candidates. Only by getting the party faithful excited about an election, by getting them involved, voting and phoning, can we avoid defeats like yesterday.

They say that every loss is a lesson. Hopefully the GOP learned theirs yesterday.

Democrats must either show their real stuff or lose their base

Now the Democratic Party has a mandate. Scary, huh? If the liberal wing of American politics wants to remain successful, it must continue to campaign and make laws using DailyKos thinking. While many Democratic candidates were able to hide their real beliefs behind constant criticisms of our President, Congress is not conducive to remaining silent. When an issue comes up for vote, these newly minted Representatives will have to show what they really stand for. If they do not, the DailyKos wing of the party will go elsewhere for stimulation.

Why is this a silver lining? Think about it; how many Americans are willing to accept philosophies that bear fruit like this?

As the majority party, the Democratic Party will have to get more creative than bashing Bush. The liberal’s bread and butter for the last couple years has been neutralized; since they now control the people’s mandate they must find policies of their own. Democrats have to stop being negative and find something to promote. If the newly elected Democrats choose not to enact Kossish policies, their radical base will quickly become disenfranchised and either move to a third party or make trouble.

A ticking time bomb was set yesterday. The only question is how long the Dems will last.

Gridlock

Yeah, I know, gridlock is supposed to be a bad thing. But look at it from my perspective for a minute. Government has a way of perpetually growing. If left unchecked, it increases spending, it taxes more and it infringes on our rights. Like a giant fungus, it will inevitably encroach even in the face of draconian measures. One of the best ways of keeping government from getting too big is to place limits on its operation. The founding fathers did this with checks and balances and the election yesterday may have had a similar effect, albeit inadvertent. With the Republicans in control of the House, Senate and Executive, spending rose dramatically.

As the Cato Institute told us two years ago:

When the Republicans gained control of Congress in 1994, they promised to eliminate the deficit and reduce wasteful spending. For several years, the GOP partly upheld its commitment by modestly curtailing spending growth and balancing the budget.

Unfortunately, the balanced budgets of the late 1990s created an "easy money" mindset in Congress, which began a spending spree that continues unabated today. Total federal outlays will rise 29 percent between fiscal years 2001 and 2005 according to the president's fiscal year 2005 budget released in February. Real discretionary spending increases in fiscal years 2002, 2003, and 2004 are three of the five biggest annual increases in the last 40 years. Large spending increases have been the principal cause of the government's return to massive budget deficits.

Now that an opposition party controls one of the houses of congress, it will be much more difficult for the government to shoehorn new spending proposals through. Gridlock may be just the thing to keep government growth to a minimum.

They don’t have the senate

Not yet anyway. If the GOP is able to hang on to control of the Senate, it will retain an important foothold in Hill politics. While it is one thing to lose control of the House, the Senate is in charge of judicial confirmations and has an important say in the future of the American judiciary. I view the fact that Republicans, who are theoretically the pro-life party, will still be in charge of approving the President’s judge picks as a big silver lining leaving the election.

Obviously yesterday was a defeat. There is no sugarcoating that fact. But maybe as much of a victory as Nancy Pelosi and the media would have us believe.

The elections: a few random thoughts

2006-11-07T15:13:00.000-08:00

While I haven’t been glued to the latest internet feeds or TV election results, some crumbs have fallen off the table early this afternoon and have formed a big enough pile to justify a post.

Photo from Little Green Footballs

Shame on him

I got an email from a close friend I haven’t heard from in a while about John Kerry’s “flubbed joke.” My friend pointed me toward an Opinion Journal editorial by Ronald Griffin, the father of a soldier who gave the ultimate sacrifice in Iraq, that lambastes the former presidential candidate for maligning the troops. Here is an excerpt that doesn’t begin to do justice to the piece:

I missed the joke. You must forgive me, for there just is not a lot of room in my life for even good jokes--and there is absolutely no room for "botched jokes"--when the subject of the joke is my son who was killed in Iraq. I know exactly what came out of Sen. John Kerry's mouth, and in those words there is no interpretation required. His attempt to convince us--and, I believe, to convince himself that that there was really a botched joke buried deep within his insult is in fact a reaffirmation of his ever-present condescending nature. He actually believes that we are stupid enough to agree with him and start laughing simply because he said it was a joke. Mr. Kerry said exactly what he meant and meant exactly what he said. In those words Mr. Kerry did in fact wash completely away the facade of his support of our magnificent troops and revealed for all to see his true colors.

All one had to do is look into the face of Mr. Kerry as the last word came out of his mouth, and it was painfully obvious that he knew that he had just disparaged the entire military. As the firestorm grew, the calls for an apology filled me with unease. It is not up to him to determine if an apology is in order. That decision most certainly rests with the millions of individuals he offended, and then they would decide if they were going to accept one or not.

Read the full article here.

Election could be decided by 6 pm?

The San Diego Tribune’s weblog is making the argument that the fate of the Senate could be known by 6 pm PST:

ABC News' The Note says exit polls are being conducted in contested Senate races in Virginia, Ohio, Missouri, Tennessee, Pennsylvania, New Jersey and Arizona, with results announced as soon as polls close in those states. Exit polls have a bad rap, and arguably are less accurate than ever, given the rise in absentee voters. But if there is a Dem tide, the exit polls should indicate it.

Uh, no. If anything SignonSD is right, exit polls will demonstrate a “Dem tide.” But they will do so independent of the actual election outcome. With absentee ballots siding more with Republican candidates and almost 25% of voters in some states voting before the election, exit polls are even less accurate. If you want to know the election results tonight, better plan on staying up late.

What to watch for: the condensed version

If you waded through the New Republic’s analysis of what to watch for today, you deserve a prize for patience. SFGate’s politics blog has a nice concise summary that should make you a smart return watcher:

3 p.m. -- Polls close in most of Indiana, where three Republican incumbent House members are in toss up races. If Reps. Chris Chocola, John Hostettler and Michael Sodrel go down, it's a sign for a good night for Democrats. If they win, Republicans will be doing better than expected. And if it's a split decision, it could be a long night.

4 p.m. Polls close in Virginia, Florida and the rest of Indiana. Keep your eye on the Virginia Senate race, where a rejection of incumbent George Allen will point to a Democratic wave.

4:30. Polls close in Ohio and North Carolina. There are at least five competitive house races in Ohio and one in North Carolina.

5 p.m. Polls close in 19 states, including Connecticut, Maryland, Missouri, New Jersey and Pennsylvania, where the outcome of the Senate race may become clear. At least a dozen house races in these states are up for grabs.

6 p.m. Polls close in Rhode Island, where Democrats need to beat Lincoln Chafee to win the Senate, and New York where Rep. Tom Reynold, who runs the Republicans House re-election committee, is in trouble.

7 p.m. Polls close in Montana and six other states. If Sen. Conrad Burns can hold onto his Senate seats, Democratic hopes of winning the Senate are probably dead.

Check in tomorrow or later tonight for analysis on the results.

Poll closing times

2006-11-07T09:45:00.000-08:00

Swing State Project has a handy map that shows what time the polls close all across the country. Keep in mind that all times are EST (so don’t try to vote in California at 11:00 local time).

Click here for a larger image.

Free Republic breaks down the national races by time the results arrive:

6 PM - Indiana (2, 7, 8, and 9) and Kentucky (2-4): As one would expect, all of the Kentucky seats and three of the Indiana ones are currently Republican. It may surprise some that I include a Democrat on the "endangered" list (Indiana Seventh incumbent Julia Carson). While it might not be well known, there are about half-a-dozen Democratic seats that looked competitive, and this was before the latest round of polls that saw the GOP dramatically improving its position on the "generic" nationwide House ballot. If Carson loses, the GOP will likely ride out the storm and keep the House. As for the Republican-held seats, I think the Repubs would be happy keep 2 of 3 in each state. If the GOP can sweep in either state (not including Carson in IN), they have the inside track to keep the House. Likewise, if the Dems can take 2 out of 3 in either, they have the early edge.

7 PM - Virginia (2), Florida (13, 16, and 22), New Hampshire (1 and 2), and Georgia (8 and 12): The seats in first three states are all Republican-held, both Georgia seats have Dem incumbents running against former GOP incumbents. IMHO, the Republicans have to hold Virginia 2nd and both New Hampshire seats, while at present none of the Florida seats look good. Still, the 16th (Mark Foley's old seat) is far more competitive than anyone imagined. Under Florida rules, although Foley resigned, he must remain on the ballot; if he "wins," Republican State legislator Joe Negron would go to Washington. MSM will play a nice joke on the GOP if they can win here, if you hear "CNN projects Mark Foley has won in Florida's 16th district", turn out the lights on the Dems prospects for a House majority. The other two seats could do just as much damage, but it doesn't look good right now (note: the Florida northwest panhandle keeps its polls open until 8, but none of the districts cited are there).

As for the Georgia seats, it's been a while since I've seen polling, but Georgia 8 was held by Mac Collins for years; he gave it up to run for Senate in 2004. He's going after his old job now, currently held by Democrat Jim Marshall. Georgia 12 is a rematch between Democratic incumbent John Barrow and Max Burns. The GOP tends to do far better in Georgia than polls suggest anyway, so these look good. Either win for the GOP would be a shot in the arm; both might mess up the Dem plans for a majority just enough to put it out of commission.

7:30 PM - Ohio (1, 2, 15, and 18), West Virginia (1), and North Carolina (11): West Virginia has the Democratic incumbent (Alan Mollohan); there's only one poll here, and Mollohan is up 10, but he is also deeply corrupt, so strange things can - stress, can - happen here. North Carolina's 11th is currently represented by Republican Charles Taylor, he's fighting what the polls are calling a losing battle against Democrat Heath Shuler. If Taylor manages the upset, it could mean more GOP incumbents will survive and surprise. Ditto any of the three incumbents in Ohio (1, 2, and 15). The 18th is an open seat last held by disgraced GOPer Bob Ney, if the GOP can win the 18th, the miracle comeback is a reality.

8 PM - Connecticut (2, 4, and 5), Illinois (6 and 8), Pennsylvania (4, 6-8, and 10), and Texas (22): Outside of Illinois, all seats are held by Republicans seeking re-election; Illinois 6 is an open Republican seat (Henry Hyde is retiring), while Illinois 8 is held by Democrat Melissa Bean. What makes the Illinois race interesting is that Bean won in 2004 by only four points, in a terrific year for Democrats in Illinois. 2006 is not nearly so good with an unpopular Dem Governor and no Senate race. Meanwhile, a third party candidate is taking votes away from her, and her Republican challenger is already within the margin of error. Illinois 6, by contrast, has been trending Democrat for years - Hyde's name was all that kept the seat in GOP hands. If the GOP can win either Illinois 6 or 8, it could be a good night for them. The Pennsylvania incumbents look to be in bad shape, in part driven by Santorum's weak performance in the Senate race, but as Santorum is picking up some steam, this may pull some of them through. Least likely to win is Don Sherwood, who was accused of choking his mistress (voters didn't know he had a mistress until that became news). If Don Sherwood wins, the GOP will win the House and gain seats. Sherwood only has to do three things to win, but - to borrow a line from Mark Shields - nobody knows what those three things are. So don't bet on this one.

The more interesting state will be Connecticut. Bob Simmons (2) seems OK, Chris Shays (4) looks to be in deep trouble, and Nancy Johnson (5) is in the fight of her life. I'm going out on a limb here - whoever wins the majority of these three CT seats will likely win the House. Texas 22, meanwhile, is a mess, Tom DeLay tried to get off the ballot, a judge wouldn't let him, and the GOP was forced to go with a write-in campaign. To make matters worse, the GOP candidate (UPDATE: Oops! Shelley) Sekula-Gibbs, has a less-than-perfect name for a write-in candidacy. The Dems have felt this one was in their pocket for months. If the GOP can pull this out, its a body-blow to the Dem majority plans.

9 PM - Arizona (5 and 8), Colorado (4 and 7), New York (20, 24-26, 29), Minnesota (6), New Mexico (1), and Wisconsin (8): All Republican seats, all in trouble (except for the Minnesota seat). NY 24 is an open GOP seat, and looks as good as gone; NY 29 (GOP incumbent Randy Kuhl) would appear to be gone, too, but the last poll there is more than two weeks old, before the GOP comeback began. IMHO, the GOP needs all of these except NY 24 and 29, Colorado 7, and Arizona 8. Arizona 8 is the seat where anti-illegal immigration activist Randy Graf is running for Jim Kolbe's seat. Kolbe was one Arizona's most liberal Republicans; Graf would be among the most conservative. Graf's had trouble putting the party back together (the primary was late and nasty), but he might pull it out. If Graf wins, the GOP might be better off than even its most optimistic supporters think. Don't surprised if Kuhl survives, too.

10 PM - Iowa (1 and 3) and Nevada (2 and 3): Both Nevada Republican seats (2 is open, 3 is held by Jon Porter) seem to have stabilized for the GOP - stress seem. Meanwhile, Iowa 1 looks like a sure Dem pickup (it was the seat GOP incumbent Jim Nussle left to run for governor), but Nussle has come on strong in his race (he all but erased a double-digit deficit this week). That could have a greater impact, however, on Iowa 3, where Democratic incumbent Leonard Boswell is being outraised (i.e., he has less $$ for advertising) by Republican Jeff Lamberti. No poll has been taken here in almost two months. Iowa 3 could be a vital pickup for Republicans.

11 PM - Idaho (1), California (4 and 11), and Washington (8): Outside of Idaho (an open GOP seat), all three are held by Republican incumbents battling for another term (Pombo in 4, Doolittle in 11, and Reichert in Washington). If the Dems can knock off one of these incumbents (or win the Idaho seat), it could provide cover against a surprise loss earlier in the night - if such a loss comes around, that is.

That's about as junkie as the ledux will ever get, but we promise to return to normal tomorrow.

Election Day!

2006-11-07T09:34:00.000-08:00

Wow. It is amazing to think that after all the hubbub and excitement that led up to now, the campaign advertisements, the accusations and that little bit of policy discussion that was thrown in to lend this cycle the aura of legitimacy, we have finally made it to Election Day.

If you haven’t already voted, please do so now. Drop the lid on your laptop or turn off the monitor on your desktop, hop into your car or glide onto the pommel of your bike and make your way to your local polling place. It isn’t far and voting shouldn’t take long, but it is your responsibility as an educated adult. The ledux and all its content will still be here when you get back and maybe there will be additional content added while you vote. So go, yes, now, you, vote!

Yesterday while attending classes at my ideologically liberal campus, there were several socialists who came down from Oakland to spread the good Bolshevik word. They were comparing President Bush to Adolph Hitler and Lynn Cheney to Eva Braun. They had come to California’s District 11 in order to campaign for Jerry McNerney against incumbent Richard Pombo. I had to get to class, but I spent a few minutes chatting with an amicable and well spoken young man who flooded me with arguments against the War in Iraq, Guantanamo Bay, President Bush’s education policy and a myriad of other topics.

The more he spoke, the more I realized how out of touch he was with today’s political reality. The man’s agenda was to host a double impeachment after the Democrat’s took control the House and Senate, a change he believed eminent. Both President Bush and Vice President Cheney would be removed from office and, this eloquent youth intoned, the country would be free to move ahead.

Election Day is not the time to discuss the radical philosophies of the left, but I bring up this episode to highlight the opportunity many see in this mid-term election. The McNerney/Pombo campaign is made significant because it is one of 50 or so close races in the House. If a longtime Republican Incumbent can be removed, the Democrats stand a greater chance of retaking control in January.

Elections make for strange bed fellows. Who would have thought that an ideologically independent socialist would side with a Democratic Party that doesn’t always align? Or that the Socialist Party would work so hard to promote a relatively mainstream candidate in McNerney?

The fact that the liberal political factions are coming together today demonstrates the opportunity they perceive. That should be our cue to combat left-wing excitement with conservative turnout. Polling data aside, the party that excites its base will stand a good chance of winning. And a large turnout means that issues will really be decided. So become educated and go vote. Call your friends and tell them to vote.

Warning: Don’t take exit polls seriously

2006-11-06T16:27:00.000-08:00

Image courtesy of Warning Label Generator

Surveys of voters as they exit the polls are common pointed too as a harbinger of actual election results. Some news agencies report on projected winners throughout the day which can sometimes dissuade voters from casting a conscientious ballot. Some voters find out that they may be “throwing away” their vote after discovering their intended candidate is 20 points behind in exit polling. This practice, common as it is, demonstrates an uncanny trust in these surveys. A trust they have not earned.

Historically speaking, exit polls are terrible predictors of election results. Consider the following:

Early Exit Polling Returns In 2004 Were Widely Inaccurate, Declaring Sen. John Kerry (D-MA) To Be The Next President Of The United States And Republicans Barely Holding A One Seat Majority In The U.S. Senate.

Exit Polls Showed Across-The-Board Failure. “[T]he networks did get the exit polls wrong. Not just one of them. They got all of the Bush states wrong.” (Dick Morris, “Those Faulty Exit Polls Were Sabotage,” The Hill, 11/4/04)

“It Was Deja Vu All Over Again With Major Embarrassment For Exit Pollsters Since It Was Clear That They Way Underestimated Bush’s Support In States Like Virginia That The President Won Handily Once The Real Vote Came In.” (Deborah Orin et. al., “Voters Choose Double Dubya,” New York Post, 11/3/04)

“ABC, AP, CBS, CNN, Fox, And NBC … Created The National Election Pool To Provide Tabulated Vote Counts And Exit Poll Surveys … These Six Major News Organization, In A Joint Decision … Appointed Edison Media Research And Mitofsky International As The Sole Provider Of Exit Polls …” (Exit-Poll.net Website, http://www.exit-poll.net/Accessed 10/24/06)

“In The 32 States With Exit Poll Estimates For Both A Presidential Race And A Senate Race The Average Error On The Difference Between The Top Two Candidates Was 5.0 Points In The Democratic Direction For President And 3.6 Points In The Democratic Direction For Senate.” (Edison Media Research And Mitofsky International, “Evaluation Of Edison/Mitofsky Election System 2004 For The National Election Pool,” 1/19/05, p. 20)

Zogby International’s John Zogby: “I’m not sure that I will ever believe an exit poll again … How could they have been so way off? They were worse than virtually every pre-election poll.” (John Cook, “Early Exit Polls Overstated Kerry Results, Media Group Says,” Chicago Tribune, 1/20/05)

The Washington Post’s Director Of Polling Richard Morin: “[T]he 2004 election may have finally stripped exit polling of its reputation as the crown jewel of political surveys, somehow immune from the myriad problems that affect telephone polls and other types of public opinion surveys.” (Richard Morin, Op-Ed, “Surveying The Damage,” The Washington Post, 11/21/04)

Zogby International’s John Zogby: “The early [2002] exit-poll data was awful. … And it came with the caveat that it was unreliable. Can you imagine a doctor saying that about a diagnosis? What a mess!” (Beth Gillin, “Media Organizations Discuss What Went Wrong With Exit-Poll Service,” The Philadelphia Inquirer, 11/7/02)

“A Survey Conducted By John Mclaughlin & Associates Found That The Early And Incorrect News Network Announcements Declaring Al Gore The Winner In Florida May Have Influenced Thousands Of Last-Minute Voters In The Central Time Zone Section Of The Florida Panhandle Not To Vote. The Premature Announcement Discouraged Many Registered Voters Who, According To [The] Survey’s Results, Would Have Voted Like The Rest Of Their Neighbors – Overwhelmingly For George W. Bush.” (McLaughlin & Associates Website, “Panhandle Poll Summary,” www.mclaughlinonline.com, Press Release, 11/20/00)

Decide how you are going to vote and then vote. Who cares how everyone else makes their decisions?

Governor: Who stinks the least?

2006-11-06T15:56:00.000-08:00

The race for California’s Governor is really pretty sad. It could be a decision between qualified candidates who bring meaningful debate and allow voters to go to the polls informed. Instead we have a joke of an election where the debate means nothing and everybody assumes Arnold’s victory is a foregone conclusion. One thing happened to ruin the life of this race: Arnold became a liberal. Not that he wasn’t always a liberal, it’s just that in the last few months he has expressed his ideology openly through a minimum wage reform and global warming measure. In doing so, he destroyed the campaign fodder of his main opponent, Phil Angelides. While that strategy may have been politically effective, it puts the electorate in a tough spot. Voters are left with two distasteful picks for Governor: Democrat nominee and liberal candidate Phil Angelides or Republican nominee and wishy-washy politician Arnold Schwarzenegger.

Unless, of course, you look at the third party candidates which is exactly what I am doing this election.

When you go to the polls tomorrow, you should try to find the candidate that best represents your views. Not the candidate that has the correct political affiliation -- we know that often has little bearing on a politician’s real views -- but what they actually believe. It can be difficult to find a candidate who represents your views entirely (a friend of mine made the point that unless you vote for yourself, you will never have 100% alignment) so sometimes you need to decide the most important issues and find the politician who lines up the most.

It’s the smell test. Whichever candidate stinks the least gets the vote.

This year, there are four candidates who have made the ballot representing third parties. Two of those candidates have such a stench that they practically eliminate themselves. The other two put up a close fight for your attention.

Peter Camejo (Green) is an anti-corporation hound who plans on establishing a “fair tax,” abolishing the death penalty, beginning a “massive move to alternative energy” and “dramatically increase education funding” all while reducing “most people’s” taxes. Camejo is a perennial candidate who does little more than muddy the waters and skim a few votes away from the Democratic candidate. He is so ideologically far from most ledux readers that his position on the ballot might as well not exist.

Janice Jordan (Peace and Freedom) gave one line to the voter guide: “Low-Cost Housing. Universal Health Care. Livable Wage. VOTE YOUR CONSCIENCE! NOT YOUR FEAR!” Yes ma’am! Or not. Jordan is an activist who has been arrested at least once for infractions while demonstrating for liberal causes and the Peace and Freedom Party. She is an avid advocate of civil disobedience and promotes programs like “Free Education through College Reparations” and a state-wide ban on animal testing. Jordan would fit in better at her San Diego headquarters than in the Capital building.

The next two candidates both put up a viable request for your vote and the decision will be very difficult. For me, it came down to my hierarchy of values and my desire to see social issues as the top priority. Here’s how I came to that conclusion:

Art Oliver (Libertarian) has a lot of his ducks lined up. He is anti-spending, anti-tax and anti-illegal immigration. His campaign webpage stresses all the brightest parts of the libertarian ideology but doesn’t say anything about the most important issues in this election: homosexual marriage and abortion. Oliver has reasonable plans for balancing the budget, eminent domain, fighting corruption and privatization, but he never mentions any of the most important social issues. The fact that Oliver takes a poor position on the drug war doesn’t help him either.

Edward C. Noonan (American Independent) on the other hand, has a somewhat more liberal energy policy than I would like, but hits a home run on the social issues. As Governor, Noonan would be in charge of appointing judges for the California judiciary. He would be able to pick justices who could halt the steady devolution of values and get our state back on track. He is pro-life, pro-marriage and pro-family, three concepts that are not clearly reflected anywhere else on the governor ballot. Noonan also seems to have the guts to get the state’s financial situation resolved.

I don’t think Noonan will win. But elections aren’t about picking a winner; if we wanted to vote for the candidate that was most likely to win, we would just check the latest surveys before leaving for the polls and let the wind dictate our vote. Ed Noonan’s ideology would benefit California and he smells less than all the other candidates. Even though he isn’t perfect, he’ll get my vote on November 7^th.

California: Tom McClintock for Lieutenant Governor

2006-11-06T15:00:00.000-08:00

The race in California for the state’s second most powerful elected office is a hot one. Democratic Nominee John Garamendi is facing off against Republican Tom McClintock. A Field Poll released this week has both candidates in a virtual dead heat. 46% of voters have a favorable impression of McClintock while only 19 percent viewed him unfavorably.

I am voting for Tom McClintock in this race and I strongly endorse his candidacy, which makes me part of the forty-six percent. I liked this man when he ran in the recall election and I have supported his candidacy whenever possible. Due to a variety of reasons, this election will be my first chance to physically vote for him and I am going to take advantage of that.

McClintock is an ardent tax fighter. He has been called a lot of names by politicians who feel threatened by his no nonsense approach to spending and unyielding stance on social issues, but that has never seemed to bother him. Even in the high profile debate with Arnold, Arianna Huffington, Peter Camejo and the rest of the political zoo, McClintock was unflappable.

McClintock believes that California should not be spending money to duplicate government functions already accomplished at the federal level. He wants to abolish the state Environmental Protection Agency (Cal/EPA) and other double kill programs. That doesn’t mean that he is anti-environment or wants to destroy our state (as the Sierra Club would have us believe), just that he doesn’t want to waste state funds on something that the federal government already does through the federal EPA. McClintock has similar plans for programs that are duplicated on state and local levels. After all, how are taxpayer benefited by these duplicative agencies?

This no buts approach to fixing the state budget is what we need to get out of the red.

McClintock is no single issue candidate. He brings with him a willingness to defend family values that will be a welcome addition to Sacramento. When he was an assemblyman, McClintock won the Young Republicans of California Federation’s Dan Quayle Badge of Honor Award which is given to “the legislator who stands up for an ideal our organization holds dear and waves off the scorn heaped on him or her by the media and other naysayers.” McClintock has certainly demonstrated his willingness to stand up to scorn. During the 2003 recall election, McClintock was asked by the Republican Party to withdraw from the race and endorse Arnold. The thinking was that, because McClintock would draw votes away from his Republican comrade and end up allowing Bustamante to pull off the victory, he should pull out. McClintock chose not to withdraw citing the differences he and Arnold had on important social issues; if he withdrew, voters would have no credible candidate who was both a fiscal and social conservative.

While he didn’t win the recall – McClintock finished with just under 14% of the vote – he did stand up for what he believed in despite amazing pressure to the contrary.

You can often tell a great deal about a candidate by looking at who donates and endorses his candidacy. For Garamendi, the endorsements are particularly revealing. His list of supporters includes former Vice President Al Gore, the liberal Sierra Club and former Senate Majority Leader Tom Daschle. McClintock’s supporters, however, tend to be much more conservative. Among his supporters are the California Farm Bureau Federation and Alan Keyes.

The Lieutenant Governor’s duties are diverse. From being acting Governor whenever the top man leaves the state to presiding as President of the Senate, McClintock would have great power and influence if he wins tomorrow. That means that he could help turn our state around and get us out of the red.

Please, when you vote, consider a Tom McClintock for Lt. Governor.

California’s Proposition 85: A must have reform

2006-11-04T13:51:00.000-08:00

Warning: Some of the content of this post may not be appropriate for younger readers.

In researching for the below post, I stumbled across a pro-proposition 85 webpage with some amazingly damning evidence against California’s abortion clinics. YES on 85’s “caught on tape” has the following:

These tapes provide compelling evidence that California needs Proposition 85 to protect our daughters. The caller on these undercover tapes asked for an abortion. She called 73 Planned Parenthood and 19 other abortion centers in California, and identified herself as a 13-year-old girl impregnated by a 22-year-old man.

That's statutory rape, a crime in California that requires reporting to law enforcement agencies or Child Protective Services. In case after case, Planned Parenthood staff told the 13-year old victim that they would not notify her parents. In defiance of California state laws Planned Parenthood staff told the young girl they would not report her statutory rape to the police or child protective authorities.

I was unable to get the audio imbedded, but you can go to this page and click on any one of the links to listen. Here’s a transcript for reference:

CLINIC: Thank you. (music) Thank you for holding. This is Vicki. How can we help you?

CALLER: Hi. Yeah. I was wondering if you guys do abortions there.

CLINIC: No. Actually, we do the follow-up checkups here after the abortion, but we have a surgical center where you go. And I have their number if you want.

CALLER: Okay.

CLINIC: There's two locations -- one in Encinitas and then one in Mission Valley…Do you want the one in Encinitas? It's like maybe a week and a half, two-week wait at the Mission Valley office.

CALLER: Well, actually do you know if you have to be a specific age for that? Like I'll be 14 in March.

CLINIC: What they might do is talk to you about your partner, you know, and just help make sure that everything's okay and that, you know, that you're comfortable with being with your partner, that no one's trying to force themself on you.

CALLER: What do you mean?

CLINIC: Like that you're having sex of your own free will and that no one's trying to make you, you know --

CALLER: Well, like --

CLINIC: Like if you need help to get out of a relationship that you don't want to be in kind of thing.

CALLER: But we're in love. We're going to get married.

CLINIC: And you're under 14 right now?

CALLER: Yeah. Well, I'll be 14 in March.

CLINIC: Yeah. So they'll address those issues when you're there.

CALLER: Oh. Well --

CLINIC: Yeah, but, no, legally you can have the procedure done. The problem is, you do need to have someone with you.

CALLER: Well, is it okay if my boyfriend comes? Like he's the one that would drive me.

CLINIC: Right. Yeah. That would be okay.

CALLER: Okay. And they wouldn't have to say anything?

CLINIC: Your parents wouldn't need to be-- and ask the questions when you call them directly too. Tell them, you know, what --

CALLER: It's just my parents can't find out at all because --

CLINIC: Seriously, I know, really. We're used to that. You know, it's so common.

CALLER: They just hate my boyfriend because they think he's too old, but.

CLINIC: Yeah. Yeah. Okay, so do you want -- do you know how many weeks pregnant you are?

CALLER: Well, I think -- well, the last time I had a period was like the first week in December.

CLINIC: Okay, so it sounds like you probably want to hurry and call the Encinitas office then.

CALLER: Okay.

CLINIC: It would be better. Hold on just a second. I'll get the phone number for you. Do you have something to write with?

CALLER: Yeah.

CLINIC: It's area code 760-634-8333.

CALLER: Okay. So like is it all right if my boyfriend pays for everything?

CLINIC: Oh, sure.

CALLER: Because he's got a job and everything. He's 22, so he'll like be able to take care of everything.

CLINIC: Yeah. That would be okay. And they'll tell you the exact prices and everything.

CALLER: Okay. But you don't think they'd have to tell anybody?

CLINIC: Ask them. You know, when you call them. Talk to them about it and see what they say.

CALLER: Okay.

CLINIC: Okay? Good luck with everything.

CALLER: Well, actually --

CLINIC: Are we close to you? We're in Hillcrest. Is this a good place for you to come for your followup checkup?

CALLER: Yeah.

CLINIC: Do you have any questions about anything for after the --

CALLER: Well, yeah. Like do you guys do birth control there?

CLINIC: Yeah. In fact, they'll give you some there too before you leave. The day of the abortion they'll give you like pills or the shot.

CALLER: Okay. Well, it's just my boyfriend and I don't want to have to go through this again.

CLINIC: Yeah. Right. And we totally understand that, and that's what they'll address, you know, and make sure, because they could give you the shot that you get once a month or once every 12 weeks or birth control pills.

CALLER: Okay. You guys wouldn't have to talk about -- like I wouldn't have to talk about him or anything?

CLINIC: I'm not sure what you mean.

CALLER: Well, like you guys wouldn't have to say anything about him?

CLINIC: Oh, you mean, like reporting him to the police or something?

CALLER: Yeah.

CLINIC: Ask them. Call and ask them --

CALLER: Well, like about birth control or anything. Like if I --

CLINIC: Oh, yeah. It's your choice. But again, to go over these -- these are good questions you're asking, and maybe ask to talk to the manger because you have age concerns and you need to try and make sure that you're not going to have any problems.

CALLER: Well, like the only person that would be able to bring me in for the birth control is him. Would that be all right?

CLINIC: It should be okay.

CALLER: Like would they have to ask about him to get birth control or anything?

CLINIC: Oh, you can get birth control without your parents consent.

CALLER: Oh, okay.

CLINIC: Yeah. Yeah. So that's okay.

CALLER: But nobody would have to know at all?

CLINIC: About your partner and his age?

CALLER: Yeah.

CLINIC: I think they're going to ask.

CALLER: Really?

CLINIC: His age and, so ask what it is that --

CALLER: So what should I do?

CLINIC: Call them and talk to the manager and explain what you're -- you know, don't make an appointment yet but just call and explain your situation to her like you're explaining it to me.

CALLER: But if I tell them, what would happen?

CLINIC: I don't know. That's why you have to call them.

CALLER: Okay.

CLINIC: Yeah. Just, you know, don't give your information in terms of your name and just ask some questions first.

CALLER: Okay.

CLINIC: And then, you know, we do just in general have a policy that we want patients, no matter what age they are, to get what they want, to get what they need, you know, to honor their choices about being sexually active and encourage young women -- we do encourage young women to wait and to wait on a career and education and, you know -- because there's so much going on at this time in your life that it's hard to really have a good sense of priorities and choices. And sometimes -- we were all your age, and so we all --

CALLER: But I love him.

CLINIC: Oh, absolutely. Right. Right. And we just want to help every individual, you know, make the best choices. But they'll just kind of spell things out and put things on the table for you to consider.

CALLER: Okay.

CLINIC: You know, and just in general.

CALLER: Is it all right like if I talk to you later?

CLINIC: Actually I won't be here later.

CALLER: Oh, okay.

CLINIC: But do you have certain ideas of questions you want or you can call here tomorrow. My name is Vicki.

CALLER: Okay. Well, I don't know. I have to talk to my boyfriend see if he had any other questions or anything.

CLINIC: Okay. Okay. Then when you do call the Encinitas office they will be able to answer a lot of questions too, all about the procedure. They're really helpful.

CALLER: All right. Okay. Thanks.

CLINIC: Okay? Good luck with it all. You're welcome. Bye bye.

CALLER: Bye.

It is impossible to use this as evidence for a lawsuit to enforce California’s statutory rape laws since it is an entrapment situation. But we can vote YES on prop 85.