Morning Links

Friday, June 17th, 2011

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35 Responses to “Morning Links”

  1. #1 |  KR | 

    I thought “Good Dahlia Lithwick piece” was an oxymoron.

  2. #2 |  DarkEFang | 

    I don’t have any problem at all with judges using “empathy” when they issue decisions. Back in the days before everything was “no tolerance,” and minimum mandatory sentencing, part of being a judge was applying the law in a fair way for each given situation. That means taking extenuating circumstances into consideration.

  3. #3 |  John Jenkins | 

    As long as you understand that “good” means “that I agree with” rather than “trenchant analysis” anything is possible with anyone (while I think the decision in the referenced case was correct, the article is junk).

    Here’s your answer on the Colorado case: it appears that the deceased may have been shot in the back while fleeing from the woman’s property. If so, that is murder, not self defense.

    Carter is at least consistent. He was for decriminalizing marijuana in the 70’s, but never did anything about it when he was in office that I recall.

  4. #4 |  Yizmo Gizmo | 

    I bet as time goes on plenty more people will come forward detailing how BushCo wanted to slime anyone with any dissenting viewpoints. If they were willing to out a CIA spy spy during wartime as retribution, I’m sure they’d do just about anything…
    Funny to see those NeoCon (former) Masters of the Universe are now
    these gaunt, moldering, old men…maybe that’s why Bush JR chose such old geezers to flank him–so that they’d all be dead and buried before
    a proper indictment could be launched.

  5. #5 |  John Jenkins | 

    And it looks like she is not being charged at this time.

  6. #6 |  Alex | 

    Sometimes I forget that we had a presidential candidate running on a pot decriminalization platform. And he won. 35 years ago.

  7. #7 |  DarkEFang | 

    A couple points on the lemonade stand story: The stand was set up outside the US Open as a charity fundraiser using a bunch of professional-grade kitchen equipment. The PGA is the impetus behind shutting down the stand. They’re protecting the vendors on the golf course. So this is really a pissing contest between a charity and the PGA, with the local officials caught in between. They want more PGA events in the future, so they shut down the charity lemonade stand.

  8. #8 |  DarkEFang | 

    Oh, and the lemonade stand wasn’t on their own property. It was either on golf course property, or county property adjacent to the golf course.

  9. #9 |  Seth Levy | 

    Update on your second story…

  10. #10 |  hamburglar007 | 

    I do have a problem with empathy being used to interpret the law, but I don’t think that was really a factor in this case. To any scrupulous judge or reasonable person the kid’s rights were clearly violated.

  11. #11 |  Radley Balko | 


    “Professional-grade” equipment? Please. They had coolers. It’s not like they were using industrial juicers. And their main transgression here was not paying the county its $300 permit fee. Gotta make sure the government gets its cut. Also, where did you see that the order came from the PGA? I haven’t seen that reported anywhere. Find it hard to believe that the PGA would order a kids lemonade stand outside the event be shut down.

  12. #12 |  Bob | 

    It isn’t officially summer until the first petty bureaucrat shuts down a kids’ lemonade stand.

    So, Radley, your position is that anyone with a scheme and a cooler of lemonade should be able to set up shop pretty much anywhere with no restriction?

    You DO understand that events like the US Open would look like third world open bazaars if that were the case, right?

    This is something I just don’t understand about many of the flavors of “Libertarianism”, and that’s the venomous hatred of permits. Sure, I can understand that there are cases of permits being used improperly, but I can’t see where this is one of them.

  13. #13 |  Mike | 

    “Ghost Ships of the Mothball Fleet”
    Love sites like this, the other pictures on that site are fantastic also. thank you.

  14. #14 |  mcmillan | 

    I really liked this line from the empathy article

    In the end, it’s not so much that Alito has no empathy for teenagers in coercive interrogation settings. He does. He simply empathizes more with the police, the judges, and the legal purity of the Miranda rule

  15. #15 |  Greg | 

    The ghost fleet article was great.

    When I lived in SF and had to run up Sacto way, I’d always try to route so I could see those ships from the highway.

    Much like posting a double-ton vid on youtube, I do wonder what the government retribution will be.

  16. #16 |  DarkEFang | 

    This was being discussed on talk radio, with the host complaining about the PGA having done similar things to local businesses when it held an event in Louisville.

    According to the news story and comments, the stand was a huge official-looking setup including things like a stainless steel sink and dozens of coolers that they set up right next to the entrance to the golf course.

    I don’t know exactly how much vendors pay for vending rights in a PGA event, but I imagine it’s quite a lot. It sucks for those kids and whatever charity they were raising money for, but the PGA has to protect it’s paying vendors. If anybody shows up unnannounced at any entertainment venue and starts selling things, they’re going to get run off the premises.

  17. #17 |  John Jenkins | 

    @ #14: That line belies the problem with the entire article. The issue is not empathy. The issue is that the author disagrees with the conclusion. It never is about empathy. It is always about disagreement. The only analysis of a legal opinion should be: (1) whether the premises sound; and (2) whether the conclusion follows from the premises. Whether we like the conclusion is irrelevant from the standpoint of evaluating the opinion. Indeed, if we dislike the conclusion but the premises are sound and the conclusion follows from them, that tells us what we have to do is persuade the legislature to change the law.

    The problem with this decision (and all decisions involving Miranda) is that Miranda itself is made up out of whole cloth (look carefully for the right to counsel in the Fifth Amendment), ostensibly to protect defendants, but really to keep courts from having to make factual determinations about coercion. In that sense, the dissent has the better of the argument: the majority’s decision does undercut the economy of the strict Miranda rule, but that’s a feature, not a bug.

  18. #18 |  Highway | 

    John Jenkins @#3

    The idea of the victim being ‘shot in the back’ was complete speculation on the part of that Sheriff’s mouthpiece:

    She said she did not know where Dust was shot, but if he was shot in the back it could reveal that he was fleeing at the time.

    Emphasis added by me.

  19. #19 |  BSK | 

    Empathy has no place in a court of law. A court of law is a place for facts. As soon as we introduce “empathy”, we allow any other “feeling” a judge has to factor in to his decision making.

    Yesterday, I had to show up for a hearing regarding a moving violation. During a break in the action, the judge asked if anyone had any questions. I raised my hand because I had a question about another ticket, not currently up for hearing, an how I should approach a situation where the officer incorrectly applied a law (cop said that 10% window tinting was max when state law says 30%). The judge went off on me for not having filed to have both tickets heard at the same time. I explained that they were issued separately, over a month apart, and I didn’t know I could move the dates around and had just planned to make two trips. He didn’t like this so, when it was my turn, he tacked on an extra $25 to my fine than anyone else who had the same fine. He also tacked an extra $10 on to people who showed up with lawyers. Base fine for the violation, which we all plead to, was $125 but two women with a lawyer got $135 and I got $150. All because of “judicial discretion”. This is not how our system is designed to work. And, don’t get me wrong, as a middle-class white male, more often than not such discretion works in my favor rather than against. So this isn’t just sour grapes. The fact is, letting judges an cops fiddle with the law based on how they “feel” about a person is a recipe for disaster.

    (This also ignores the fact that the cops and judges colluded with the defendants to allow us to plead a “Driving While Talking” charge down to a parking violation… a moving violation with points down to a non-moving violation with no points. Don’t get me wrong, I appreciated the move, but it just seems absurd to allow folks to play fast and loose with the law. I wonder what would happen if I appealed the parking ticket, seeing as how I was clearly non-guilty of this, and expose the absurdity for what it is.)

  20. #20 |  Irving Washington | 

    There’s no such thing as a good Dahlia Lithwick piece. And that one is some extremely tortured reasoning.

  21. #21 |  Tyler | 

    You know, I get just about all of my A+ Facebook and Twitter material straight from your “Morning Links.” The pictures of those ghost ships were just wonderful, and satisfied a life-long curiosity (I live in CA). Thanks.

  22. #22 |  Chris Rhodes | 

    RE: “Noted without comment.”

    This struck me as odd: “Last year, Smith and two other officers received short department suspensions after they permitted an area college student to photograph them in uniform with department weapons in police headquarters for a class project in November 2009.

    Strange how officers can shoot an unarmed person on the street and get less of a punishment than if they help a college student with his class project.

  23. #23 |  Chris Rhodes | 

    Also, regarding the ship pictures, I can sum up the comments thusly:


    “Any photographer who would take pictures without asking permission from the government has no professional integrity.”

    “How DARE you take risks! You might have been hurt and required a hospital visit paid for by me! Disregard the fact that I lobbied the government to force people to accept healthcare paid for by others in the first place!”

    You have been warned.

  24. #24 |  John Jenkins | 

    @Highway: I am confused. What part of “may have been shot” and “If so” made it seem that I was stating the deceased had been shot in the back was a fact?

    What you call complete speculation, I call the contents of the initial officer’s report that hasn’t been made public yet.

    That obviously doesn’t make it true, but if it is true, it does make out a prima facie case for murder, which was the point.

  25. #25 |  Ahcuah | 

    Here is what drives me nuts about what Alito says. From the article:

    He worries that until today a “core virtue” of Miranda has been the clarity and precision of its guidance to “police and courts.”

    Clarity and precision???? He’s got to be kidding. How does a “reasonable person” test provide clarity and precision? Can I just do a Woody Allen and pull a “reasonable person” into a line at a movie theater? A “reasonable person” believes whatever the judge wants him to believe.

    And if the Miranda test really had “clarity and precision”, why would any such case have to make it to the Supreme Court, ever?

  26. #26 |  John Jenkins | 

    @Ahcuah: The “reasonable person” test in this instance is a nominally objective standard that requires the court to ask whether a reasonable person similarly situated to the defendant would feel he was free to leave (what’s being tested is whether the interrogation is “custodial”). It’s called objective because you are not supposed to take into account the particularities of the individual (in this case age, but also mental infirmities) when making the evaluation.

    It is much simpler than a test where you try to peer into the mind of a particular person at a particular time and see what that person was feeling (for one thing, if the person stayed, that at least raises a presumption the person didn’t feel that leaving was an option). By requiring lower courts to take age into account in making the determination, the majority did complicate the analysis, so I think Alito is correct, but that is as intended, and I believe closer to the inquiry mandated by the Constitution (i.e., was there compulsion?).

  27. #27 |  MikeZ | 

    I’d agree empathy shouldn’t really come into play. However isn’t a child in school already in a custodial situation? I’m pretty sure a 13 yr old isn’t allowed to leave the building and the Principal is justified in calling the police if you do. So if a teacher pulls you out of a classroom and sends you to the principal’s office where a police officer is waiting. Your not in police custody but you are in custody of the principal and if you try to leave the police office has the right to bring you back to the principals office. Seems somewhat of a bizarre situation to allow police interrogations on school property because of this.

  28. #28 |  Leonson | 

    I can see empathy coming into play in different courts, but not the Supreme Court. The purpose of the SC is to interpret Constitutional issues. Empathy shouldn’t play a role.

    That said, I don’t disagree with the ruling. I just disagree with the articles point.

  29. #29 |  Highway | 

    John Jenkins,

    It didn’t “appear they may have been shot in the back” as you stated. It was reported that they died due to gunshot. There was absolutely no appearance that they were shot in any particular manner. Your sentence leads a reader to believe there is evidence that it was murder, rather than the entire sentence from the article being speculation about ‘in the back’ being murder on the part of the spokeswoman.

  30. #30 |  Ahcuah | 

    @John Jenkins: Yes, I am well-aware of and understand the “reasonable person test.” Yes, it is less imprecise than peering into the mind of the interrogated person. But to say it has “clarity and precision” is just ridiculous. All it means is that instead of trying to get into the mind of the interrogated person, the judge gets to pretend to know what a “reasonable person” would do. And that usually means whatever the judge wants to believe.

  31. #31 |  Michael | 

    The empathy argument is pretty weak.

    Minors receive a different treatment by police as a matter of law, not empathy for the weak. This is due to issues surrounding informed consent, culpability, rights of parents, etc.

  32. #32 |  supercat | 

    There is a place for empathy in the courtroom, but that place is called the jury box. If there is dispute as to whether evidence against a person was gathered legitimately, the relevant factual determinations should be made by a jury, and the jury should be informed not to construe against the defendant any evidence that was obtained illegitimately.

  33. #33 |  perlhaqr | 

    This is not big bad bureaucracy coming down on little kids

    Actually, it is.

  34. #34 |  BSK | 

    The kids and their parents were offered multiple warnings about the stand and refused to budge. Their “stand” was really a full canopy with several coolers full of bottled lemonade, Coke products, and water, which they were selling at a high markup after buying wholesale. They were situated on the corner of a major intersection that is busy and dangerous for cars and pedestrians alike on a typical day and even moreso when a massive event is happening across the way.

    Generally, I agree with the sentiment of condemning the officials and the government for such hyperregulation. But I do think their are extenuating circumstances here that justify requiring a permit and limiting the areas wherein goods can be vended. Given that the families were warned twice, and ultimately faced no consequences outside of moving 25 feet down the road because of the public outcry, I struggle to garner much sympathy. Any I might have been able to muster was eliminated upon learning that one of the families involved were the Marriottes, who apparently tried to pull rank because they are used to getting their way.

  35. #35 |  Bob | 

    #33 | perlhaqr | June 18th, 2011 at 12:20 pm

    This is not big bad bureaucracy coming down on little kids

    Actually, it is.

    Oh, for fuck’s sake. This is not about the kids. This is about the parents using the kids to make a statement or some crap.

    Have you ever SEEN a kid’s Lemonade stand? I have. I see them all the time. They set them up by their own house. They use a card table and kid-carryable supplies to set them up.


    Because they don’t have carpentry tools or the skill to use them.
    Because they don’t have a crap load of coolers.
    Because they don’t have a ton of money to buy a crap load of supplies.
    Because they don’t have an SUV to haul all this crap around in.

    They don’t have all this stuff because they’re little kids. As such, no one gives them any grief about their Lemonade stand.

    The second you add all that stuff in, it becomes the PARENT’S Lemonade stand. And they should know better than to use their kids like this.

    Come back when you have an ACTUAL story about a kid’s lemonade stand being regulated.