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Wednesday, February 09, 2011

Cronyism and the University of Alaska

Patrick Gamble and the University got married less than a year ago.  And here he's gone out and bought a '56 Corvette from a buddy who gave him a good deal, without consulting his spouse who had a new Subaru in mind.  Is this going to be the pattern in this marriage or is he going to talk things out next time before he makes what should be a family decision?   This spouse isn't like his first two.  She expects to be a full partner in this marriage she was pressured into. Is he going to have to be firm until she shapes up or can he learn to enjoy life with an equal partner?

For a linked list of the other posts on the Chancellor search click here.


This post comes in several parts:
  1. What is cronyism?
  2. Is the appointment of Tom Case as UAA Chancellor by his fellow retired Air Force general an example of cronyism? (An aside raises the same question about Craig Campbell's appointment as Case's replacement at the Alaska Aerospace Corporation.)
  3. Why is this worth blogging about?

[This is a long post, so here's a brief SYNOPSIS:  Case's appointment fits three of the four criteria of cronyism and may well fit part of the fourth.  President Gamble's decision to by-pass a normal participatory search process and to ignore unanimous Faculty Senate recommendations makes the case for cronyism more plausible.  This suspicion is exacerbated by Case's same day replacement as head of the Alaska Aerospace Corporation.  With that said, Case is clearly qualified to head UAA, but not necessarily the best qualified.  The faculty and students and rest of the campus community have to determine whether Gamble has knowingly abused his power to hire a friend or truly didn't understand the academic culture.  If the latter, he has demonstrated why bringing in another leader from outside the academic culture is problematic to many.  The UAA community will also have to assess whether Gamble is willing and capable of respecting and adopting the culture.]

1.   What is CRONYISM?

Cronyism: partiality to cronies especially as evidenced in the appointment of political hangers-on to office without regard to their qualifications  (Merriam Webster online)

So, what's a crony?   From Websters online dictionary:

Specialty Definition: crony

Domain Definition
Noah Webster [Noun] An intimate companion; an associate; a familiar friend. To oblige your crony Swift, bring our dame a new years gift. Hence, an old crony is an intimate friend of long standing.. Source: Webster's 1828 American Dictionary.
Literature Crony A familiar friend. An old crony is an intimate of times gone by. Probably crone with the diminutive ie for endearment, and equivalent to "dear old fellow," "dear old boy." (See Crone.). Source: Brewer's Dictionary.
Slang in 1811 CRONY. An intimate companion, a comrade; also a confederate in a robbery. Source: 1811 Dictionary of the Vulgar Tongue.
Wiktionary 1: [Noun] Close friend. (references)
2: [Noun] Trusted companion or partner in a criminal organization. (references)


Let's look at a few more ways to define Cronyism:

From the business dictionary online:  
The act of showing partiality to one's close friends, typically by appointing them to a position in a company or organization despite the individual not necessarily being the best person for the position. Although this is [sic] favoritism is frowned upon in many cases, it is often hard to determine what is or is not cronyism. In general it is not wrong to hire or appoint someone you know, as long as they are well qualified, so the boundary between the two scenarios is very unclear. Although accusations of cronyism are prevalent, they very rarely amount to any disciplinary action or removals from power. See also nepotism.

from Encarta:
doing favors for friends: special treatment and preference given to friends or colleagues, especially in politics ( disapproving)

Most of the definitions I found were close variations of these.  So from these  definitions we can pull out the common factors:

  1. Partiality or favoritism

  2. Towards a good friend

  3. Usually through an appointment to a position for which the friend is

  4. Unqualified OR not the best qualified


Wikipedia's discussion of cronyism gives more nuance to the term showing why it happens and how it relates to other terms we know such as networking or good old boys system:
Governments are particularly susceptible to accusations of cronyism, as they spend public money. Many democratic governments are encouraged to practice administrative transparency in accounting and contracting, however, there often is no clear delineation of when an appointment to government office is "cronyism".
It is not unusual for a politician to surround him- or herself with highly-qualified subordinates, and to develop social, business, or political friendships leading to the appointment to office of friends, likewise in granting government contracts. In fact, the counsel of such friends is why the officeholder successfully obtained his or her powerful position — therefore, cronyism usually is easier to perceive than to demonstrate and prove.
In the private sector, cronyism exists in organizations, often termed 'the old boys club' or 'the golden circle', again the boundary between cronyism and 'networking' is difficult to delineate.
Moreover, cronyism describes relationships existing among mutual acquaintances in private organizations where business, business information, and social interaction are exchanged among influential personnel. This is termed crony capitalism, and is an ethical breach of the principles of the market economy; in advanced economies, crony capitalism is a breach of market regulations, e.g., the Enron fraud is an extreme example of crony capitalism.


2. Is the appointment of Tom Case by his fellow retired Air Force general an example of cronyism?

 

Cronyism, like most things, isn't either/or, isn't black or white.  There are situations which are clearly not and situations which clearly are, and more ambiguous ones in the middle.  But let's go through these four factors:
  1. Partiality or favoritism
    We know that UA President Gamble knew there would be a vacancy for the UAA Chancellorship even before he took the job.  It was ten months after Chancellor Ulmer announced she would retire, before Gamble began the search process late November 2010.
    We know that the UAA Faculty Senate - on notice that Gamble was considering skipping a national search - unanimously recommended their Provost as the candidate they could live with should he choose to NOT have a national search.
    We know the next public step was that Gamble appointed Tom Case to be Chancellor.

  2. Towards a good friend (All Air Force career information comes from the Air Force webpages for Gamble and Case.)

    Gamble graduated from Texas A&M and became a student, undergraduate pilot training, Randolph Air Force Base, Texas  in 1967. 
    Case graduated from the Air Force Academy and became a student in the Undergraduate Pilot Training, Laughlin AFB, Texas in 1969.
    I'm not sure when they met, but both careers included assignments in Vietnam, Korea, Europe, and Washington DC. 

    Gamble (August 1996 - November 1997) and Case (October 1998 - September 2000) were both commander, Alaskan Command, Alaskan North American Aerospace Defense Command Region, 11th Air Force and Joint Task Force Alaska, Elmendorf Air Force Base, Alaska.

    And they served together in Hawaii when Gamble (July 1998 - May 2001) was
    commander, Pacific Air Forces, Hickam Air Force Base, Hawaii, and Case  (September 2000 - July 2002) was Deputy Commander in Chief and Chief of Staff, U.S. Pacific Command, Camp H.M. Smith, Hawaii.

    From the US Pacific Command website: we learn, if I read this right, that Gamble would have reported directly to Case's boss.
    Commander, U.S. Pacific Command (CDRUSPACOM) is the senior U.S. military authority in the Pacific Command AOR.  CDRUSPACOM reports to the President of the United States through the Secretary of Defense and is supported by four component commands: U.S. Pacific Fleet, U.S. Pacific Air Forces, U.S. Army Pacific, and U.S. Marine Forces, Pacific.  These commands are headquartered in Hawai’i and have forces stationed and deployed throughout the region. 
    Both men retired to Anchorage where Gamble became head of the Alaska Railroad and Case became, first, Dean of the UAA College of Business and Public Affairs (where he was my boss) and then COO of the Alaska Aerospace Corporation. 

  3. Usually through an appointment to a position for which the friend is

    Search committees are the norm for faculty and high level administrative positions at the University of Alaska Anchorage - usually national searches.  The previous Chancellors at UAA and UAF were not selected through nationwide searches, but faculty and community members were involved and approved of the selections.  See previous post footnote beginning at "*I'd point out" for how those searches were conducted.

    In this case,
    • Nov. 23, 2010:  the President announced the beginning of the search and hinted at skipping a national search because there were good Alaskan candidates. 
    • Dec. 6, 2010:  The faculty responded by proposing the current UAA Provost for Chancellor.  If not him, then they wanted a national search. 
    • Jan 18, 2011: The President brought together a committee and asked them to come up with characteristics of a good Chancellor.
    • Jan 31, 2011:  The President announced Tom Case as the new Chancellor

    The President skipped the normal search process, rejected the faculty's proposed candidate without consultation, did not consult with the faculty or other normal constituents about possible specific candidates, and simply selected someone he'd known in his previous career who was also a personal friend. 

  4. Unqualified OR not the best qualified

    Unqualified?  - The Chancellor has a leadership position which requires good management skills and an ability to work well in the community for  university support and partnerships and for fund raising.  Generally, someone from inside the academic profession with the highest academic credentials (a doctorate) is chosen because they know the culture and norms of the institution they will lead.  This is  occasionally waived if the candidate has other remarkable qualities. 

    Tom Case does not have a doctorate, but he has a masters in systems management and a great deal of education and training in the Air Force plus experience leading large organizations.  He also spent five years as Dean of UAA's College of Business and Public Affairs.  In that position he expanded his widespread contacts in Anchorage and Alaska developed earlier as Commandant of Elmendorf Air Force Base.

    There is no question in my mind that Tom Case is qualified for this position.

    Best Qualified?
    - This is a question that might still be debated if there were a national search and there were several candidates.  There might never be absolute unanimity.  There are factors to criticize with his candidacy.
    • He doesn't have an academic background so he doesn't understand the culture of people he will be leading.  But this isn't enough to make him unacceptable.  Sometimes an outsider can bring in new ideas.  Another factor arises if we take the macro view.  Not just how this decision affects the one campus - UAA - but the impact on the University of Alaska system.  As I've pointed out in a previous post.
      • There will now be four white males over 60 without terminal degrees in the four top posts of the university.  While these four men are each unique individuals and have their own perspectives and experiences, 
        • having other perspectives is both symbolically and substantively important.  The fact that this wasn't considered too important by the President is also troubling.  Also, as I've said, 
        • having outsiders in academia is not necessarily a bad thing.  But two retired Air Force generals in the top four positions seems redundant. We've wasted an opportunity to have a different perspective among the top four positions.  Why?  Simply because Gamble is more comfortable with an old Air Force colleague?  That's not good enough unless he brings in other qualities so special they make him clearly better than other candidates.

  5. But we can't even consider whether he is the best candidate because there are no other candidates.
So, is this cronyism?  Pat Gamble hasn't told us his motives (other than saving money by not having a national search).  It is clear that it meets at least three and possibly four of the standard benchmarks of cronyism.
  1. He used partiality or favoritism - he chose someone he already knew and was partial to without letting any other applicants into the process.  He chose another academic cultural immigrant from the Air Force.  While he may think he has simply chosen the best possible person for the position, in fact he picked a friend without considering others.   He didn't even discuss with the faculty the person they recommended and why they supported him and why he (Gamble) didn't. 

    But he clearly decided that despite coming from a different organizational culture - two actually if we include his time with the Alaska Railroad which seems to be a particularly 'good old boy' system - that he knew better than the faculty, without even having to talk to them about their candidate and his.  Or any other possible candidates a nationwide search would produce.

  2. The person he chose is a personal friend and professional colleague.

  3. He did this through an appointment that was a deviation from the standard process.  While there had been some deviation in past appointments, this one was extreme by totally excluding the faculty and others in the university community.  The past searches for UAA and UAF chancellors deviated by not having a national search, but the conditions were different and shared governance wasn't abandoned in those cases.  One major concern, I understand, for the faculty is fear that the exceptions will become the new norm and this appointment will set a precedent for skipping national searches and search committees altogether.

  4. Tom Case is clearly qualified, but not necessarily the best qualified.  We don't know whether he is the best qualified because Gamble's process excluded competition against which to measure Case.  
The suspect nature of this case is exacerbated by the fact that on the same day that Gamble sent out his email announcing that he had chosen Case, the Alaska Aerospace Corporation  announced that Case had been replaced by former Lt. Governor Craig Campbell whose term had recently ended - another former Air Force/National Guard General (though elevated, as I understand it, through a different procedure to fill the position of Adjutant General of the Alaska Air National Guard, and promoted to Lt. General by Gov. Sarah Palin.)

How hard is it to imagine Gamble and Case and Campbell at a party discussing what Campbell would do after his term was over?  "You know, there's an opening for Chancellor coming up.  I can appoint Tom to that - he was a dean there already - and then Craig, you can take Tom's spot."  Actually, I do have trouble imagining Tom Case in that meeting, but somebody must have discussed this for it all to happen so quickly and smoothly.  Too quickly. Too smoothly. 

The University of Alaska is a state organization and the Aerospace Corporation is state created and largely state funded. These are positions with serious salaries. The Chancellor gets about $250,000 plus benefits.


3. Why is this worth blogging about?


I've learned over the years that cronyism, like other ethical infractions, is  "something that other people do, but not me."   While working with Municipal Assembly members, for example, on rewriting the Municipal Code of Ethics, I had assembly members defend their right to have lobbyists pay for their lunches with reactions like, "Are you suggesting I could be bribed for a $20 lunch?"  I had two responses:  1)  How expensive a lunch would it take?  and 2) If $20 is trivial, then why don't you pay for the lunch yourself?   But I got the point.  Other people were unethical, but even hinting they might be was insulting.

Most people, particularly those who have dressed themselves in society's symbols of legitimacy, rarely recognize when they do something wrong. Tom Delay, for example, is still protesting his innocence.  If Gamble reads this, while he might acknowledge some of the points theoretically, he'd probably say that, practically, he'd made the right decision and he'd do it again.  And that's why I'm covering this in such detail.  He shouldn't do something like this again.  And if he does, it won't be out of ignorance.


Broader Issues

1.  The University of Alaska is a large public organization with a budget over $1 billion.  The FY2012 operating budget alone is $884,983.300.  The capital budget is another $212,525,500.  (To put this in context, the Governor's proposed total operating budget for the State of Alaska is $5.45 billion.  To be fair here, only $350 million of the UA budget comes from the State.  But the total operating budget is 1/5 the State's operating budget.)   How the University is run should be of concern to Alaskans.

2.  The University of Alaska is the main institution for higher education in the state of Alaska.  How it operates, its emphases on one approach to education or another, will greatly affect the future of the state.  Nationally, great changes have been going on in higher education as university budgets have almost matched health care for significant increases. Legislators have reacted with calls for more efficiency.  A business metaphor has replaced the idea of education.  Students have been changed into customers and education has become preparation for a job rather than for life.  "How?" is replacing "Why?" as the basic question for college students.  There are legitimate questions about what universities do and how they do it.  But there are also many simplistic answers floating around. 

Facing these changes requires people who both understand education and who understand what parts of traditional education are essential to keep and how to move into the future taking advantage of new technology to make education better, but without making it superficial.  So Alaskans, even those not involved in the University, have a huge stake in what happens in the administration of the University.


Specific Issues - Consequences of Skipping a Search

1.   Credibility of the President's Commitment to Shared Governance

The President, in his November letter announcing the beginning of the search, said the new chancellor should have "an unwavering belief in the efficacy of shared governance."  Either the President
  • doesn't have such a belief himself, 
  • doesn't understand this the same way it's understood by faculty and staff and students, or 
  • didn't want to risk not getting his preferred candidate.  
There was no shared governance in this decision.  Gamble muffed an opportunity to be a University President and instead acted as the University CEO.  Chancellor Case was appointed by the President with no meaningful participation of the UAA community.  Not only did Gamble choose someone against the Faculty Senate's unanimous recommendation, but he did not bother to discuss his reasons why before he made the appointment or why he scrapped any semblance of a search.

When push comes to shove, this new Chancellor will be clearly and unequivocally representing the President in Anchorage rather than representing the UAA community to the President.  This is not shared governance.

2.  Legitimacy

The odor of cronyism floats over this appointment.  Even if Tom Case is the best possible chancellor - which we really can't judge given the lack of other candidates to compare him to - skipping over the process leaves a residue of suspicion and distrust.  Had there been an open process with several candidates, the President may have risked that his preferred candidate was not recommended.  He then would have had to make a decision - either to accept the search committee's recommendation or to still choose his preferred candidate.  Gamble didn't take that gamble.  The odds would have been in his favor.  Usually such a committee identifies acceptable candidates and possibly a preferred candidate.  Had Case made the acceptable list, his legitimacy would have been assured, and this would not have been seen as a possible case of cronyism.  Odds are good this would have happened.

Instead the new Chancellor comes in under a cloud.  And there is antagonism between the faculty and President. 



3.  Communication

The time that a search committee puts into developing criteria for a position is time where people have to articulate their values and their models of education and universities.  There is a lot of give and take, people reveal themselves, and relationships are built.  This would have been a great opportunity for the President, who comes from alien organizational cultures, to have gotten an intimate look at this new culture he now heads.  That opportunity has been lost.



Conclusions



This is a post I wish I didn't have to write, but I feel strongly that if the President continues in this path the relationship between him and the faculty will get more and more strained.  The faculty are in an awkward position.  They don't want to spend their time taking on the President, they'd much rather work cooperatively with the head of the University system to make the university a better place.   But a lot of them think they've been rolled by the President and don't want it to happen again. 



My sense is that while they feel misused and are concerned about the future, they are willing to accept and support Tom Case.  They also have to assess Gamble.  Was this a willful decision to by-pass the process to make sure his Air Force colleague and friend would get the position or simply a cultural blunder?  If the latter, is he willing and capable of respecting this new (for him) culture and concepts like shared governance? Did he know buying this Corvette behind her back was wrong, but did it quick before she could say no? Or is he just not used to having to check with the spouse? And how's he going to behave next time there's a family decision to be made?

This has been a long post because none of the other news media are covering the story, except the UAA student newspaper, Northern Light, and I want to document the complexities of this situation as best as I can for the record.


I expect that Tom Case will be a good Chancellor at UAA.  I worked with him in the College of Business and Public Affairs and respect him as an honorable and sensitive man of considerable ability.

But in a democracy, the ends don't justify the means.  Prisoners get released when the police or courts have violated procedures set up to protect their rights.  The President had more than enough lead time to fill this vacancy properly.  And as one of his first major acts of significance, it behooved him to do it right.  He didn't.  Wednesday he's coming to Anchorage to talk to the UAA faculty.  Whether the future will be rocky or smooth will depend on how that meeting goes.

The university can be a frustrating place because democracy can be frustrating. Democracy allows time for people to have their say and be listened to.  And I myself could point out to ways I would streamline things - but not at the expense of serious shared governance.

One needs to remember, "It's not WHAT you do, but the WAY you do it."


Thursday, December 02, 2010

Trying to Watch "Fair Game" with an Open Mind

[This is a long post.  Most of you won't read it all.  It's long though, because it shows step-by-step how a rightwing website neutralizes truth, in this case how they make bogus claims against the movie Fair Game - the name is so apt - to neutralize some of the most shocking known behavior of the Bush Administration.  This is probably longer than it need be, but finding the truth, despite what people say, doesn't come in bumper-sticker brevity.]


We saw the movie Fair Game last week. It tells a story* about the active undercover CIA Agent Valerie Plame who was outed by the White House in July 2003.  Her husband, former US Ambassador Joe Wilson, had been hired to determine if Niger had really supplied yellow-cake uranium to the Iraqi government to be delivered in those now infamous aluminum tubes.  (*I think we have to stop using "the" story for anything, because even without the ideological split in the US, it is ever clearer that different people relate different stories about the same events)

Contributing to my state of mind, was the fact I had just heard an NPR story called the The Great Textbook Wars that afternoon.  From NPR:
In 1974, Kanawha County, West Virginia was the first battleground in the American culture wars. Controversy erupted over newly-adopted school textbooks. School buildings were hit by dynamite and Molotov cocktails, buses were riddled with... [The full article is at WNYC]
This piece had interviews with the people who began the boycott against the new textbooks which included a more modern and diverse group of authors and ideas than the previous texts had.  A couple of people cited their 1974 protest as the beginning of the Tea Party movement.  From the piece I gathered that the protesters were generally not well educated, their world view was dominated by religion, and they were not happy about the changes in their lives being brought about by integration - which was reflected in the textbook changes.  We also heard from teachers who said they needed a curriculum which better reflected their students, that discussed more than just dead white males in literature and history and science.  BUT, it was also clear that the catalyst for the protesters was a feeling of being disrespected.  They felt these changes were being forced on them without any input from them and they weren't going to take it any more.  Perhaps they couldn't stop the national civil rights legislation of the 60s, but they could stop their local schools from imposing new texts which raised questions they didn't want their kids exposed to.

Yikes, I'm trying to explain the link between textbook wars and Fair Game without making this too lengthy.  Much of this has been sitting for a week as I let the ideas naturally rise.  I don't think I used enough yeast.  But I need to get this done.  Let's just say the textbook wars reminded me once again that people do things for reasons and when people get pushed too far, emotion blocks out any chance for reason to triumph.

Even without the textbook story in my head, my tendency is to play the devil's advocate and think about other interpretations of the story.  I can't watch anything - even something I agree with - without thinking about how someone with a different perspective would react.  

As I watched Fair Game, with the radio show fresh in my mind, I could hear the Tea Party supporters of Joe Miller shouting out "Lies, Lies!" throughout the movie.  I did wonder what they would have said about a Joe Wilson talk to college students where he warned about government becoming a tyranny and how it would get worse if they didn't pay attention and stand up and protest.

We're in a period of American history - one that is not unique in this respect - where 'truth' is limited to facts that don't challenge 'my' world view.  This affects those on all points of the political spectrum, though some are more prone to be ruled by raw emotion rather than hard facts and logic.  The key is to find a path which blends both the passion that stirs us to do things with the rationality that gets us to do them effectively.  We can't let emotion blind us to the 'truth.'

In Fair Game's portrayal of the Valerie Plame case, even recognizing that Hollywood leaves out much of the story and enhances it for dramatic effect (so do politicians and all of us, of course), a few facts can't be disputed.
  1. President George W Bush used evidence - the aluminum tubes and the non-existent yellow-cake uranium - to justify going to war with Iraq, even though the CIA was telling them couldn't be true.  In one scene Scooter Libby badgers a CIA analyst - Are you 100% sure?  99% sure?  96% sure?  If you aren't 95% sure, are you willing to risk our security?  

    Even if we accept the notion that the White House was convinced this was true - and not simply a plausible ploy for getting the American public to go along - it turns out later that they were, in fact, wrong.  There were no weapons of mass destruction.  .

  2. The White House exposed the identity of an active undercover CIA agent with open projects - and informants in different parts of the world whose lives were jeopardized and possibly lost because of the outing.  Besides being a federal crime, this also forced the resignation of an experienced agent with active, needed knowledge, and endangered CIA contacts around the world.  While the White House ran a misinformation campaign that suggested Plame was a third rate agent who didn't do anything, they do the same sort of campaign with anyone who is in their way - ie the Swift Boat campaign against Kerry.
     
  3. Scooter Libby was tried and convicted.  And his sentence was commuted by the White House
These 'truths' are all on the record.  You can quibble about different details of the movie - it had 90 minutes or so to present its narrative - these three things are indisputable..


Or so I thought.  While prepping this, I ran across the blog Newsbusters - a right wing blog set up to debunk liberal lies - which reviewed the movie Fair Game


Here's what Newsbusters tells us about NewsBusters.org
Welcome to NewsBusters, a project of the Media Research Center (MRC), the leader in documenting, exposing and neutralizing liberal media bias.
In August of 2005, with the assistance of Matthew Sheffield of Dialog New Media, the MRC launched the NewsBusters blog to provide immediate exposure of liberal media bias, insightful analysis, constructive criticism and timely corrections to news media reporting. [emphasis added.]

You can read the Wikipedia post on NewsBusters which emphasizes the ideological stance (and was itself attacked by Newsbusters.)   Even if you read NewsBusters itself, it is clear  that this is a site set up to promote conservative Republican causes first, and not to expose the truth.

The trend I see is this:
  1. Attack the opponent - lying is totally within the rules
  2. If your opponent fights back you have a couple of choices
    1.  Attack again
    2.  Change the subject
    3.  Say that nobody can be trusted - raise questions about the honest folks so the dishonest folks look equal.  This is what they mean by 'neutralizing'.

The point is to totally sully the water so that any sort of authentic discussion is impossible.  Then the loudest and most persistent wins.

This works to the advantage of the conservatives because their reserve of funding is deeper.  Sure, liberals can raise a lot of money too, but in part that's because the money people want everyone - people who agree with them and those who don't - to be indebted to them.  They bet on all the horses - the only sure way to win no matter who's in office.  The Republicans have also just done a much better job of spreading their message.

I go through all this because I'm pretty sure that Fair Game is reasonably accurate on the basics if not every cinematic detail.  Newsbusters attacks Fair Game's validity by making bogus claims on minor issues and distracting the reader from the really serious issues the movie raised.  Neutralizing them as Newsbusters says its goal is.   Few people will check their out-of-context quotes..  This stirs up their partisans and sows seeds of doubt among those who don't know the background and who assume that no one could lie so shamelessly.  In the end, the casual reader goes away thinking, "another biased movie.  You can't believe anyone these days." Neutralization accomplished.  But what if they are telling the truth?  Then the truth has been neutralized and lies are equal to truth.

Look at  Newsbusters' damning conclusions about Fair Game:
1. Liman [the movie's director] is being dishonest in order to push a left-wing agenda.
2. Liman is being dishonest because the factual story is far less interesting than the fictional account released Friday.
3. Liman is completely ignorant of the facts, and too lazy to do even a little research.
The message is:  it's all lies, there's nothing there, they're stupid and lazy.

How did they reach these conclusions?  They made them up.  They took several ideas from the movie and declared them to be false with the help of out-of-context quotes from the Robb-Silbermann Report on WMD's. 
The Daily Caller's Jamie Weinstein did the legwork in demonstrating just how far from the truth some of the film's central claims are. Chief among them, perhaps unsurprisingly, is that Scooter Libby, Vice President Dick Cheney's chief of staff, and other White House officials exerted political pressure on intelligence officials to cherrypick intelligence favorable to claims that Iraq possessed weapons of mass destruction.
In fact, not only did Libby do no such thing, but according to the Robb-Silbermann Commission, which investigated the intelligence behind the Iraq war, "The analysts who worked Iraqi weapons issues universally agreed that in no instance did political pressure cause them to skew or alter any of their analytical judgments."
What??!!  First, there is no contradiction.  The Robb-Silbermann Report quote does NOT say there was no pressure exerted.  It clearly says that the intelligence officials didn't "skew or alter any of their analytical judgments" because of political pressure that did exist.  

They damn Liman because he didn't read the report:
Weinstein asked "Fair Game" director Doug Liman if he had read the Robb-Silbermann report. He had not.
Liman was the director.  It was his job to take the script (not write the script) and make a movie from it.  The report is 601 pages.  Why should Liman read it?  But I'm sure the author of the book  the movie was based on read the report.  Why do am I sure?  Because the book was written by Valerie Plame and her husband Joe Wilson assisted her.  They had a huge stake in knowing every detail of this report and Wilson testified before the commission and is cited in the report. And probably the script-writer read a lot more of it than did anyone associated directly with the Newsbusters article.


Then Newsbusters proceeds with more obfuscation.
But other blatant falsehoods pervade the film that could be disproven with a simple Google search. For instance, it is near-common knowledge by now - except among politically interested Bush-bashers - that neither Libby nor then-White House advisor Karl Rove leaked Wilson's wife's name to the press. In fact, State Department official Richard Armitage dropped the name to the late columnist Robert Novak, setting off a political firestorm.
But according to Weinstein,
You wouldn’t know this by watching Liman’s “Fair Game,” since Armitage is nowhere to be found — except in script at the very end. The narrative that Karl Rove and Dick Cheney’s Chief of Staff Scooter Libby were nefarious behind-the-scenes players intent on destroying innocent reputations while pushing the nation into war on false pretenses fits too nicely into Liman and Hollywood’s leftwing vision. You can’t, after all, let facts spoil a cinematic anti-Bush diatribe.
OK,  neither Rove nor Libby contacted the media and directly told them. And the movie doesn't say they did. But it is also 'near-common knowledge' that Armitage worked closely with them both and would never have leaked the information exposing the identity of an active undercover CIA agent on his own, without their assent.   Newsbusters conveniently fails to mention that Libby was convicted and President Bush commuted his sentence because of his actions portrayed in this movie.  Here's what Fox News wrote (yes, that Fox News) about the conviction:
I. Lewis 'Scooter' Libby Guilty on Four of Five Counts in CIA Leak Trial

Libby was accused of perjury, obstruction of justice and lying to FBI agents and the grand jury about how he learned about Valerie Plame's identity and whom he told. Plame is the CIA employee whose husband. Amb. Joe Wilson, was sent to Niger by the agency to investigate claims that Iraq had tried to buy yellowcake uranium.

The Newsbusters article continues with more twisted truth:
According to Weinstein, the fictional Wilson "suggests his report to the CIA definitively debunked the Iraq-Niger claim." In fact, Bush's statement was accurate: British intelligence had discovered just that. A bipartisan report from the Senate Intelligence Committee found in 2004 that Wilson's report "did not refute the possibility that Iraq had approached Niger to purchase uranium” and "did not change any analysts’ assessments of the Iraq-Niger uranium deal."
Wait, wait, wait.  The movie didn't dispute that the British reported this.  But the movie said that the British report was wrong.  Which it was. 

Here's the paragraph from the  Report of the Select Committee on Intelligence on the U.S. Intelligence Community’s Prewar Intelligence Assessments on Iraq the first quote is lifted from:
When the former ambassador [Joe Wilson] spoke to Committee staff, his description of his findings differed from the DO intelligence report and his account of information provided to him by the CIA differed from the CIA officials' accounts in some respects. First, the former ambassador described his findings to Committee staff as more directly related to Iraq and, specifically, as refuting both the possibility that Niger could have sold uranium to Iraq and that Iraq approached Niger to purchase uranium. The intelligence report described how the structure of Niger's uranium mines would make it difficult, if not impossible, for Niger to sell uranium to rouge [sic] nations, and noted that Nigerien officials denied knowledge of any deals to sell uranium to any rogue states, but did not refute the possibility that Iraq had approached Niger to purchase uranium
The movie didn't deny the possibility that Iraq might have approached Niger for uranium, only that if they did, Niger never sold or gave them any.  And even if this allegation about the movie were true, it's a relatively minor point compared to the ones I listed above. It's like disputing that the man had dirty fingernails and skipping the fact that he murdered someone. 

The second quote is also shown to NOT support Newsbusters contention:

(                )                                                              PARAGRAPH DELETED                                                             
(                )                                                              PARAGRAPH DELETED                                                             
(                )                                                              PARAGRAPH DELETED                                                             
(U) Conclusion 13. The report on the former ambassador's trip to Niger, disseminated in March 2002, did not change any analysts' assessments of the Iraq-Niger uranium deal. For most analysts, the information in the report lent more credibility to the original Central Intelligence Agency (CIA) reports on the uranium deal, but State Department Bureau of Intelligence and Research (INR) analysts believed that the report supported their assessment that Niger was unlikely to be willing or able to sell uranium to Iraq.
The three paragraphs before this conclusion are deleted, so we have to go from the little that is there.  But it is clear if you read this, that analysts' assessments weren't changed because they already believed there was no uranium deal between Niger and Iraq.  His report "lent more credibility to the original" CIA reports.  The only way that could be true is if those reports said the deal didn't take place.  And the quote clearly says the INR didn't think Niger would sell the uranium to Iraq.

So everything in these two quotes is consistent with what was in the movie.  But not too many Newsbusters readers are likely to go to the original source to check on a narrative they already want to believe.

This attack on the Fair Game, in my mind, is the same as claiming Obama is a Kenyan citizen and a Muslim.  The point is to raise questions about clear, factual events that you don't want people to believe.  To destroy the good name and character of people who oppose you.  To raise questions about their message.  What don't the Newsbusters folks want people to believe?

1.  People close to Karl Rove and VP Cheney, people who would not have acted without Rove's and probably VP Cheney's approval (of course it would be given with plausible deniability) exposed an active CIA agent, a serious violation of the law and breach of US Security.  An action that the conservatives would have lynched a Democratic White House had it done the same thing. 

2.  That there was clear evidence that there was no uranium deal between Niger and Iraq and the aluminum tubes were not for rockets to launch nuclear weapons, yet President GW Bush used this as a key justification for going to war against Iraq.  In fact, Secretary of State Colin Powell knew it was false and did not mention the Niger uranium in his speech to the United Nations. (See the Robb-Silbermann report, footnote 210 on page 213 - and no, I didn't read the whole report either, I just know how to use 'search.')

3.  The attack on Valerie Plame clearly came from the White House, most probably Rove and Cheney were involved, and was in retaliation for Plame's husband publicly refuting the lies the White House was using to justify going to war against Iraq.

4.  Scooter Libby was convicted - presumably as the fall guy to protect Rove and probably Cheney - and then his sentence was commuted by President Bush.
The point of this post is NOT to have a pissing match over facts with people who don't care about seeking out truth.  You can't win a game like that against people who have unlimited resources and no shame.  The point is to illustrate where we are in the US today - nearing a dark age when truth is suppressed ruthlessly and the common good is trashed for private gain. Over and over again.  In every sector from religion to oil to banking, and yes, even in academia. 

The attack on the movie attempts to make readers think the movie is total fiction, but it doesn't acknowledge or refute these facts I've outlined that the movie clearly presents. Facts that should raise a hue and cry from anyone who believes our leaders should obey the law, be fiscally responsible, and that human life is sacred and should not be sacrificed needlessly. (The war in Iraq has killed about 100,000 Iraqi civilians.)

But we shouldn't  be surprised they would attack the movie.  If  Rove and Cheney's people were willing to expose an active undercover CIA agent in retaliation for her husband telling the truth, there's probably little they wouldn't do to defeat their perceived enemies.  Newsbusters behavior here isn't that different from what the movie is about - attack the messenger to suppress the truth. 

Their tactics to replace 'truth' with their own version of reality is working.  People who oppose them are attacked and have to 'prove' their innocence (a traditional American value, right?) and so much mud is thrown that most people throw up their hands and say, "They're all corrupt."  And that's a victory for the corrupt.  Because their corruption isn't as problematic if the voters think that the honest folks are corrupt too.

And lots of writers think twice before posting on something like this out of fear they will be attacked.  This blog is off-the-radar enough I don't think I have to worry.   I'm not pointing out the inconsistencies because I think anyone will change their mind.  I'm doing it to illustrate how public discourse has been horribly polluted so that truth becomes totally indistinguishable - for many - from fiction. 

Yes, Valerie Plame was declared by Karl Rove to be "Fair Game" for this sort of nasty, democracy destroying attack.  But Plame, thanks to her husband, didn't fold.  She did what President Obama needs to do.  They fought back.  So, put Fair Game on your movie list.











Thursday, August 12, 2010

Link Clickers Beware - But You Can Opt Out

[Update, August 12]:  An anonymous comment provided a link to the FTC guidelines covering endorsements and testimonials. You can see the relevant section for bloggers in the third comment at the end of this post. It sure looks to me that this totally violates those guidelines.]

BloggerBuzz had a post recently announcing a new way to 'monetize' one's blog:


. . . Any time you write about a product or service, you're connecting your audience to that product. If someone makes a purchase, the seller benefits from your written wordyou influenced a purchase. There are thousands of websites that will pay you a fee for any business you bring them through a form of online advertising called affiliate marketing. With affiliate ads, web publishers are compensated for driving online actions.

VigLink is a content monetization company that makes affiliate marketing very easy for bloggers. We offer a simple snippet of code you can install in your blog that automatically and transparently does all the work for you. We've catalogued and signed up for more than 12,500 affiliate programs and we collect all the performance information and deliver you a single integrated payment. In return, VigLink takes 25% of the incremental revenue you earn. [emphasis added].
There's also a two minute video.




What's wrong here?    Most might say, nothing at all.  This is the American way of life.  Nothing has value unless it has a price.  Unless we can make a buck off of it.  People who blog for free are losers.  Well, here are the problems I have:

1.  The reader doesn't know the blogger is being paid and thinks the endorsement is uninfluenced by a payoff.


When I was a cab driver in LA, a fare once wanted to go to a strip club.  When I dropped him off, the club guy came to my window and gave me $5 and told me it was always $5 per person I dropped off.  So if someone asked me if there were any good clubs around, you know where I'd take him.

This is the same sort of problem these unmarked links set up.  The reader thinks it's a genuine endorsement uninfluenced by the promise of a payoff. Currently, there are ads in some blogs, but they are labeled as such.   Readers suspect or know that the blogger gets a commission on these. 

In their FAQ's, the company writes this about reader awareness:

Will my users notice?

Likely not. VigLink does not change the user experience one bit. No links are inserted or removed on the page, there are no double-underlines or pop-ups, and mousing over a link looks "clean."

But, it's really dirty is what they seem to be saying.

This is like tv shows and movies that pay film makers to embed their products in their shows.  So buying Full Circle Farm produce no longer is an integral aspect of the character, but rather they wrote that in because FCF has paid them for this stealth ad.

I've gotten emails offering me payments if I plug a product on my blog and they will pay more if I don't say that I'm getting paid.  The advertisers believe that if the readers don't know the bloggers are getting paid, they are more likely to believe.

In the FAQ's, they even tell merchants:
Additionally, VigLink increases confidence, click-through rates and conversions by making the links to your site appear to be "natural" links instead of obviously embedded affiliate codes. [Emphasis added]
They are selling the fact to merchants that they are deceiving viewers into thinking these are natural links.

As a viewer, YOU CAN OPT out.  There's a page where if you click on the button, it says
If you'd like to disable VigLink on sites that you visit, click the button below.
I'm not sure what that means.  I have no idea how the average viewer would ever find the page, or even know there is something to opt out of.  Does it mean they won't collect data on you?  Does it mean that the blogger doesn't get his payoff if you purchase something through his link?  There's a link there to a long privacy policy which includes statements like:
We do not knowingly collect personal data from children under the age of 13. If you are under 13, please do not give us any personally identifiable information.  [Emphasis added]

How many kids read privacy policies?  How many adults read privacy policies?  How many people even know this company exists? 


2.  The blogger starts pushing products, not because he really likes them, but because they will make him money.

Behavioralism is a school of psychology that tells us, among other things, that people repeat behaviors that are rewarded.  So, if bloggers get paid for writing posts that get people to click on links and buy products, they will start writing more such posts.  And eventually, some bloggers will recommend products they don't really believe in because they know they will get rewarded.  


3.   Trust in Blogs Will Turn to Suspicion

Before this new company arrived, readers knew that if they clicked on an ad, the blogger would get some small amount of reimbursement, but if they clicked on a link in the post, there was no compensation.  They could reasonably assume that the blogger put in the link because he believed it was in the reader's interest to click on the link.

Now though, as surfers begin to understand this new system, they will become suspicious of all blogs and bloggers (and probably the websites of newspapers and everyone else will do this as well.  Maybe they already do.)

Even if bloggers, like me, post announcements saying that we do not have paid links, there's nothing to stop people who DO have paid links from putting up the same announcements. 

Note:  People should be skeptical about what they read on blogs.  But there has been a sense of innocence in many blogs that are written by people who just enjoy sharing their ideas and without the corrupting influence of money. 

4.   Bloggers are probably also being ripped off

So, if VigLinks is willing to hide from the viewer the fact that the blogger is getting paid, why should we be surprised that they are also snookering the blogger?

  • Blogger pay is probably pretty tiny.  One reason putting up ads is not even a temptation is that I know I would get so little revenue from the ads anyway.  If I'm going to sell out it's going to be for a lot more than $50.   I looked into google-ads  when I first started blogging and learned that only blogs with at least thousands of daily hits are likely to make any real money.  The ads for this company don't talk about how much a blogger would actually get.  I looked through more of the links on the website.  You get vague things like:

How does payment work?

VigLink will pay by check in the United States and PayPal anywhere it is available. We are expanding our payment options over time. VigLink will ask for payment information and pay publishers as soon as their balance reaches $25. VigLink typically takes 25% on commission earned by publishers. Often publishers still receive higher payouts due to collective bargaining and high volume commission levels. We will issue an IRS Form 1099 to any publisher who makes more than $400 in a fiscal year.
What percent of bloggers will even earn that $25?  If they don't, what happens to the money?  So, we don't really know how much you get per click.   Actually, another FAQ says you get paid if someone makes purchase only.  It doesn't say how much.  Instead it says,

How does VigLink make money?

You earn a commission for every sale made on a linked site. VigLink takes a small fee from that commission and then passes on the rest to you.

Small fee?  It's true it will be a small fee in absolute cents.  But it is 25% of what the blogger earns.  Gryphen at Immoral Minority said that Tank Jones and Rex Butler's commission from Levi Johnstons' earnings is only 20%.  I don't know if that's true, but Gryph seemed to think that was a significant chunk.  This company takes 25%.

But if the blogger doesn't make much money at all, what's 25% of nothing?  Well, there's something called the salami technique:
Employee embezzles large amount of money by stealing small sums from many different accounts.
This linking scheme isn't stealing because they tell the blogger and the blogger agrees to it. Though they intentionally do not want the viewer to know what is happening.   But, the vast majority of bloggers who might sign up for this probably wouldn't make much money.  It's possible a lot won't even reach the $25 threshold necessary for them to write the first check.  And as I asked earlier, what happens to this below threshold accumulation?  Why don't I think they'll donate it to decrease our national budget? 

I'm guessing, based on talking to people who have google ads, most people won't make more than, say, $50 a year, and that's probably high.  A few of the very big blogs with  thousands of hits a day, might do well.  But if this company got a million blogs to sign up - and it's really easy to add the code - and they get 25%, and if that amounted to about $10 per blog, that would be $10 million per year. (Hatrickassociates claims there are 400 million active English-language blogs in 2010, so my estimate is probably way low.)

So a scheme like this would
  • pollute general trust in blogs with 
  • minor benefit to most bloggers who sign up, 
  • cause deception for readers, and 
  • cause companies to pay a salami slice commission for links that they had in the past for free. 

The main beneficiary would appear to be this new company, and, probably Blogspot, WordPress, and TypePad also get a cut.  I couldn't find any mention of that.  


It seems to me that blogs with stealth links like this should post a notice at the top of the blog:

"This blog may receive kickbacks from merchants if you click from here and our reviews of products may be biased because of that."

Wednesday, April 07, 2010

House Judiciary - On Crime Evidence and Campaign Expenditure

(H)JUDICIARYSTANDING COMMITTEE *
Apr 07 Wednesday 1:00 PMCAPITOL 120
+SB 284 CAMPAIGN EXPENDITURES TELECONFERENCED
+SB 110 PRESERVATION OF EVIDENCE/DNA I.D. SYSTEM TELECONFERENCED
+ Bills Previously Heard/Scheduled TELECONFERENCED

THIS IS MY VERY ROUGH NOTES.  DON'T RELY ON THIS.  I'LL POST THE AUDIO WHEN IT IS AVAILABLE.  

1:35pm Senator French is walking the committee through SB110 on Perservation of Evidence/DNA ID System.  The meeting opened with Chair Ramras warmly welcoming Sen. French and praising him and his office for being so easy to work with.

There are a number of people on the list to testify, but Rep. Ramras also wants as much time as possible for SB 284.  This is not a bill I've prepared for.

Online testimony:
Mr. Oberly, Executive Director of the Innocence Project:  The task force reviewing this will be helpful and police will hold up decisions until the task force does its study.

Jeffry Mittman, ACLU Alaska:  We support this bill as well.

Gruenberg:  Concern about length of time evidence is kept.  His concerns were with who decides the crime is solved.
French:  The concern that someone would peremptorily declaring crime solved, is covered.
Ramras:  We know of Rep. Gruenberg's propensity for belts and suspenders.
French:  These issues will be looked at by the task force.
Gruenberg:  It looks like you are right relating to biological evidence.  We're talking about non-biological evidence.  The house bill had this on p. 3 beginning of line 7.  The two bills seem to treat the non-biological evidence seperately.
Ramras:  As I recall there was a focus on biological evidence.
Gruenberg:  The bills themselves deal with both biological and non-biological evidence.  Will we have any fall out between now and when the task force makes its report.
French:  In the six years I was with the Prosecutors I am unaware of anyone disposing of evidence and I would be stunned if it happened in the next year.
Ramras:  Chair is satisfied with the discussion.
Gruenberg:  Is there anyone else concerned?  I don't see it among other committee members.

Gatto:  An agency ... may destroy biological evidence if ....   - that's not a complete activity - mailing a notice - makes no requirement of the recipient ever receiving the letter.
French:  I think the certified delivery implies that it was received.  If you continue reading - no person notifies after 120 days after receiving the notice...
Gatto:  Line 27 page 3.  Key word is mailed.  Doesn't matter they got the wrong address, or person can't read English.  If you wanted to have a certainty the letter was received and failed to act is not something the agency can control.

Heron:  We did amend that in other hearings and require a receipt.
French:  Would a proof of receipt help?   That seems reasonable.
For completeness.  I appreciate your desire to move this down track.

Language requiring applicants to pay costs of evidence retrieval have been romoved.  We've gotten approval/acceptance from department of law.
Timeliness provisions also changed.  p. 15 - were three years.  Not from this day forward, but looking back.  People now in prison have ten years after we pass the bill.  Otherwise people have unlimited amount of time.
Gruenberg: I'm still troubled by same issue.  If they got the perpetrator and say the crime is solved and destroy the evidence.  Now prosecution could say we are permitted to do this under this law.

French:  I don't share your concern.
Ramras:  Would you care to do a member swap from now to April 18? 
French:  [Something about the person not admitting guilt.  I'm not sure what this is about.]
Deleting attorney affidavit.  ????
Requiring evidence ???? deleted.
Page 8 lines 22-27 - right out of the federal bill.  We leaned on the Fed bill which is called the Gold Standard.  It was passed by Republican Congress and signed by Pres. GWB.

Gatto:  Subsection C.  Applicant did not admit or concede guilt under oath.  Admission of guilt is not not acceptable as a plea for this bill?
French:  What you'll hear from public defenders is that some people plead guilty with regularity.  They take a fall for someone else, doesn't understand English, lots of reasons to plead guilty falsely.

Ramras:  Two conceptual amendments = #1 page. 14.  Anyone else who wants to testify?
Public testimony closed.
Conceptual Amendment #1  - add to duties of task force -
Gruenberg:  think that should go in subsection D, lines 2?
Ramras:  Withdraw #1
#2 standards for return of property added to duties of task force [changed where to add it]
#3 page 7 line 31-p. 8 line 3 - subparagraph D3 page 7 lines 10-14  should conform (I have no idea what this is about).  Withdraw.
Holmes: CA #4 p. 7 line 31 delete 31-p. 8 line three and replace with applicant did not admit or guilt in ...except for the court in the interest of justice... nolo contendr plea is not an admission ... that is currently on p. 7 lines 14.
Passes.
Gatto:  CA #5 - p. 3 line 27 - return receipt requested  passes

Passes.  Concurrent resolution adopted.  At ease.

That's it for CSSB 110.  At ease and then I'll be back for SB 284.

Here's the audio. You can get the exact words used. CSSB 110 is the first 42 minutes.

Wednesday, August 19, 2009

Scalia Puts Form Over Substance - Innocence isn't a Defense

An apparently innocent man is about to be executed. But even if he can prove his innocence, Scalia says that innocence isn't a defense (from Time):

In his dissent, Scalia wrote, "This court has never held that the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is 'actually' innocent."
Basically, as I understand this, Scalia is saying that in the Supreme Court processes, innocence is not a defense against being executed.

Yes, the rules of law and the procedure, GENERALLY, need to be the way to go. This is true in all 'rational' organizations, that is, organizations based on the idea of the rule of law. The intent is to make sure that people are all treated fairly. People in the same circumstances should get the same treatment. Officials shouldn't arbitrarily decide who gets benefits and who doesn't.

But systems are just systems. When it is clear that the system has failed - a student's application was turned down because the system wasn't designed to account for her atypical situation - it's time for humans to step in, use their judgment to show that the intent of the rules is being subverted by the rules.

And when it comes to executing an innocent man, it would seem more than obvious, except to people who are so wrapped up in the process that they miss the whole purpose of the process.

Here's one overview of the whole story from Time.

[This is a post I normally would spend a lot more time on to make sure I have my facts right. But my image of Scalia is such that I believe this outrageousness and I've checked several sources (albeit briefly) that I'm just going to post.]

Update, August 20: I put the bracketed note above because I know that Scalia, however much I might disagree with him, is very smart, and that there must be more to the case. My son sent me a link to a commentary on this at Obsidian Wings by an attorney who gives more background. While he seems to support my conclusion, there is some legal precedence involved that does make it a little more complicated. Partly he's saying Scalia's view follows someone named Bator who argues that guilt and innocence are ultimately unknowable and so our proxy for the truth here is the jury's verdict. But this argument was made before DNA offered us another test of truth. There's a lot more. You can read the whole analysis at the link. Here are a few quotes:

The Court’s “original habeas” jurisdiction is one such exotic source of authority. To give you an idea of just how obscure it is, the Supreme Court had not exercised its original habeas jurisdiction since 1925. You have probably heard about Supreme Court “habeas” cases, but those are all cases that were decided by a lower court and that the Supreme Court has adjudicated pursuant to its certiorari jurisdiction.

The explosion of Warren-era habeas litigation provoked several conservative critiques, including a particularly influential article by Professor Paul Bator. Bator’s position remains the modern “conservative” (or “federalist”) paradigm for habeas adjudication. Bator argued that “ultimate truth” is unknowable. What we mean by “guilty,” Bator argued, is that some quantum of reliable procedure has produced a legal determination that someone has committed a crime. Bator’s point really an epistemic one [Ah yes, the post the other day on the need to study philosophy talked about epistemology which studies 'truth' and how we know it] involving the limits of human inquiry – that the criminal justice system ensures correctness by proxy of reliable procedure.

Here’s the rub. Under that paradigm, the question of whether someone is “actually innocent” is incoherent, because it presumes a god’s-eye view of guilt that is not tethered to the judicial processes that produce that verdict. Those subscribing to Bator’s paradigm (including Scalia) argue that the freestanding innocence question is not “whether a state may constitutionally execute an offender known to be innocent,” but “whether an offender, whose guilt has been determined beyond some threshold of certainty, has a constitutional right to a federal forum to retest his conviction when guilt seems less probable.”. . .

Bator's argument has several problems. First, Bator’s critique is persuasive only within a certain band of uncertainty, and we don’t always operate in that band anymore. When the only thing that a freestanding innocence claim demanded was consideration of new (often stale) witness testimony, then one could persuasively argue that federal habeas review created incremental procedure without a corresponding incremental benefit.

That argument is dated in the era of DNA evidence. DNA evidence, while not that panacea many seem to think it is, brings us as close to “ultimate knowability” as we can come. . .
Second, one of the central but implicit conceits of the Scalia/Bator argument is that state and federal process produce equally accurate results. State postconviction review and clemency – so the argument goes – render concerns about executing innocent offenders moot. That position is virtually indefensible, especially in capital cases. We know that innocent people are convicted of crimes, both as a matter of statistical certainty and with respect to specific defendants (Timothy Cole). State judges are elected, often running with “tough on crime” platforms. Allowing a murder to go unpunished is a cardinal sin in many jurisdictions. For a murder conviction to be set aside on state postconviction review, an elected judge would have to let a convicted murderer go free. In many states, the postconviction judge reviewing the conviction is the same judge that presided over the convicting court. State court systems sometimes include separate civil and criminal supreme courts. A state criminal supreme court faces even more intense political pressure to be “tough on crime,” because criminal matters are its docket’s exclusive subject matter.
The whole discussion is at Obsidian Wings.

Saturday, June 20, 2009

Internet Imperative and Media Disintegration


My son sent me a couple of links worth checking. I'm sure a variation of this scenario from XKCD has happened in many households of my blogger compatriots.

And J1 also sent me to Roger Ebert's blog. Here he is conveying pretty much my own concerns about bully radio talk show hosts. In this post, for example, I talk about pollution of public discourse. And I've also discussed bullying as an aspect of this. Here's a bit from Ebert:

I am not interested in discussing O'Reilly's politics here. That would open a hornet's nest. I am more concerned about the danger he and others like him represent to a civil and peaceful society. He sets a harmful example of acceptable public behavior. He has been an influence on the most worrying trend in the field of news: The polarization of opinion, the elevation of emotional temperature, the predictability of two of the leading cable news channels. A majority of cable news viewers now get their news slanted one way or the other by angry men. O'Reilly is not the worst offender. That would be Glenn Beck. Keith Olbermann is gaining ground. Rachel Maddow provides an admirable example for the boys of firm, passionate outrage, and is more effective for nogt shouting.


Much has been said recently about the possible influence of O'Reilly on the murder of Dr. George Tiller by Scott Roeder. Such a connection is impossible to prove. Yet studies of bullies and their victims suggest a general way such an influence might take place. Bullies like to force others to do their will, while they can stand back and protest their innocence: "I was nowhere near the gymnasium, Sister!"


The whole piece is worth checking out.

Wednesday, August 20, 2008

Ted Stevens' Trial Stays in DC - Now What?

NPR also just announced on the air that the Stevens trial won't move to Alaska.
[11am update: ABC News has a report, but not much detail. So does Alaskan Abroad.]
Based on no hard evidence whatsoever, here are some thoughts on what might happen with the Stevens trial.

The idea that the defense wanted a speedy trial so Senator Stevens could be acquitted before the November election makes sense. This has also allowed them to ask for the trial to be moved to Alaska - where they probably assume, quite reasonably, he might get a friendlier jury - and to drop some things. Now that option has been closed off.


The ADN has also said that they've requested the Prosecutors do a better labeling job of all the audio and video tapes they have to listen to.

I'm guessing, that given the piles of things they have to read and listen to, there is no way they can be ready by September 24. (I could be wrong. They could hire a whole slew of young, smart attorneys to listen to those tapes 24/7 - but they have to all be up-to-speed and clever enough to catch important tidbits on the tapes.)

So now since the trial is not being moved to Anchorage, there will not have to be an automatic delay to send out notices for jurors, etc. Finding 12 Alaskan jurors who haven't heard about this case would have taken a while. Maybe someone back from a year in Antarctica or someone living in a cabin outside of Chicken. It took 2 1/2 days to select a jury in Anchorage for Pete Kott.

With the trial staying in DC, we'll find out how much he really wants a speedy trial, or whether this was all dependent on moving back to Alaska.

Saying they want a speedy trial to prove Sen. Stevens' innocence before the election is a good political move. It's been well reported. But being convicted before the election won't be a good move.

So they can now argue that they wanted a speedy trial, but, damn, the prosecutors dumped so many boxes of materials on them that to ensure Sen Stevens gets justice, they'll need more time before they can be ready for the trial. It's not our fault, it's the Prosecutor's fault for collecting so much irrelevant material, but we still have to go through all of it to protect our client

So what happens if Stevens gets convicted before the election? A couple of lawyer friends say he would be forced out of the Senate if he's conviceted. If that happens, the Governor can appoint his replacement as Senator.

BUT, I believe the Republican party chooses who his replacement as candidate would be. Not totally sure on this, but I think this is the case.

Since Governor Palin and Republican party head Ruedrich don't get along too well, it is conceivable if all this played out just right, that they could appoint different people.

Thursday, May 08, 2008

Kohring Sentencing -Notes as it happened

Below are my notes. I can type pretty fast, but not fast enough. But this should give you a sense of what happened today. There are gaps, but I think I've caught the essence. I'll make comments and point out highlights in the next post. The previous post has video of Kohring talking to the press after the sentencing.






Vic Kohring Sentencing

U.S. District Court for the District of Alaska


9:30 AM 3:07-CR-00055-JWS Judge Sedwick ANCHORAGE COURTROOM 3

USA vs. VICTOR H. KOHRING

(Joseph Bottini) (John Henry Browne)

(Edward Sullivan) (Wayne Anthony Ross)

IMPOSITION OF SENTENCE

9:35am Judge Sedwick is explaining why we are here
List of Felonies Vic Kohring convicted of
Pre Sentence Report Prepared which I’ve read
Vic Kohring have you read the presentencing report?
Yes.

Presentencing Report. Vic Kohring has mentioned three objections:

A. Not one of allegations predating 2006 is relevant for sentencing
B. Since related PPT bill, related to only one subject matter, …. Unwarranted
C. Sum total of payments Vic Kohring received was less than $5000 so …..

Sedwick, I will take up these later, but first all other findings of fact I find supported by preponderance of evidence.
I’ll hear from lawyers.
Then others.
Then Kohring
Then Determine sentence.
Then hear argument on his motion to be released pending appeal.

Mr. Browne: [Kohring's defense attorney. Although Wayne Anthony Ross is also listed, he hasn't been actively involved in the courtroom]

John Henry Browne: You have everything we’ve filed, more detailed than presentation. You summarized objections right.
Vic Kohring accepted $1000 and some food, so no basis for upward adjusting under law. Guilty of $10,000-30,000 - he didn’t accept nearly that amount of money - neither the loan or job for his nephew not criminal conduct. Since the jury found not guilty on ??? Not guilty. Not clear exactly what conduct the jury found illegal. According to the newspaper….




Sedwick: I only mentioned newspaper articles because you mentioned them in your appeals.
John Henry Browne: No, in your order about our conflict of interest argument you mentioned the newspaper articles. Unusual to rely on newspaper article - I should point out there are jurors here present today - $1000 got on way home from the pub.

For the court to suggest that there was $5000 or more would be a guess what the jury decided.

Whether there is more than one bribe or not, the Govt.’s case supports our permission - “If you find a series of payments” that is usually considered just one bribe. If you accept my reasoning, his sentencing raise would be 17- 23 months, series 18?

Otherwise level 20 - 33- ? Months

Bottini - [Prosecutor #1]
Pre 2006 , or course relevant, in the indictment, charged, jury convicted on him.
Multiple bribes, we argued this in Anderson and Kott unsuccessfully so we understand reasoning. But this is different. This had nothing to do with ppt. What Allen did was from time to time give Kohring money when he needed it. He remembered giving Vic Kohring $600-700 on several occasions. Doesn’t mean they weren’t a bribe. Giving the money because he felt sorry, but also to grease him. Knowing full well he would have a time to come and ask him for something. Vic Kohring was choking the bill? And he asked him to let it go. He asked him not to run against Lyda Green. Clearly a multiple bribe situation.

Sullivan: [Prosecutor #2] Browne’s arugment that there should be no enhancement, because only took $1000 bribe at Island Pub. Specifically related to $17,000 loan that he was asking for - we charged it as an attempt crime because he didn’t get the amount. Browne says because there was an acquital on Charge 2? - evidence was prsented on other counts, thus there should be a four level enhancement to $29,000.

Sedwick: It seems law clear that court should consider evidence whether it happened. Even the SC says that if preponderance of evidence, the court should consider it even if acquitted. I’ll give Browne a chance to respond. Is it your review I misunderstand the law?

Browne: That’s a tough questions. Your Honor could consider the weather in Anchorage because it is kind of gloomy today.
Sedwick: I won’t.
Browne: We do not believe that the court can find a preponderance of evidence. Mr. Allen never testified. Interesting, government changed the word ‘loan’ to payment. I thought interesting. That’s the language in the superseding indictment - payment - we know there was no payment. Kohring said, over and over again, everything has to be aboveboard. Nothing from Allen that he considered any requests by Vic Kohring to do anything. I believe it would be a stretch…. [sounding much less certain here]

9:50
Sedwick: Having sat through the trial. I come away with a different assessment than Mr. Browne does. He saw this $17,000 as a way to deal with his financial problems. Despite Mr. Browne’s very able arguments, I overrule the objections and adopt all the statements. That means 24, Criminal history category of 1, the lowest. Advisory is 51-63 months.
If the govt. Knows of any victim that would liked to be heard.

Bottini: No.

Would like to hear the attorney’s ideas for sentencing:

John Henry Browne: No secret we will be appealing whatever happened. Based on what you just ruled, and I assume that you included the multiple bribes.
Sedwick: Yes,
Browne: Object to courts intervening in proceedings at all.
Sedwick: Noted
Browne: We are asking for the court to depart from the sentencing guideline and reasons in our brief.
Sedwick: Principle one being abberant behavior.
Browne: Thank goodness the SC has now given courts discretion. I’m happy to see it back. Doesn’t mean I agree with it. I would...point out, today, Mr. Kohring has hitchhiked to court. The door of the truck he borrowed. The door fell off. He hitch hiked.

He is residing with his parents on a doublewide couch, humiliated. Meanwhile, Bill Allen, with $400million he was allowed to keep, the govt. Perhaps because Veco is so involved in the oil industry, has given Veco a pass. While my client is sleeping on a couch. I note that his sentencing has been continued to July again. You saw examples of Kott, Allen, Smith behavior on tape, how they talk, drink, behave on tape. You certainly never saw that of Kohring. He never used one bad word. No matter what happens, Allen has $400 million in his pocket. Mr. Kohring gets to pass on to his relatives debts. Jurors in the newspaper said if they understood the sentencing consequences, they would have taken their job differently.

He spent a decade as a dedicated legislators. Letters say how hard working he was. There were over 50 bankers boxes or more between Kohring and constituents. The letters also say, though you didn’t allow us to present any of this to the jury. Mr. Kohring has a mantra “Let me know what I can do for you.” I know politicians have a tendency to say things like that, though not to the extent Vic Kohring does. Does have obligations and responsibilities to parents- Alzheimer's dad - and facing divorce from his wife.
No question it is aberrant behavior.
Question for the court whether that should be a basis for departure. Drink of water your honor. The clmate I came to try this case was someone incendiary, because of Anderson case. You were critical of Kott - swearing, etc - and that he wasn’t honest. Not the case here. Kohring didn’t testify. Certaininly 8 months in jail or home detention is a significant penalty… Are there other issues you want me to cover now?

Sedwick: Self surrender. There is a questions about release status pending appeal, I will considere today.

John Henry Browne: Mr. Kohring has preexisting defect in spine in his back. You know because of his surgery reason for $17,000. Mr. Kohring was in an auto accident a week before trial, and I was driving, the only accident in 30 years, I was at fault, and he needs surgery again. He could accomplish that in 45 days, not longer than self surrender takes. You want to hear from Mr. Kohring first?

Sedwick: Yes, but from government lawyers first.

John Henry Browne: Sought advice from myself and Wayne Anthony Ross… He is very concerned about the conflict of interest issue. He’s been advised by some that…. That may not set well with the court. We have put that forward about what you should have told us before and we would have asked for you to be ….. Kohring is not angry. He’s Andy Griffith. He’s not angry, just disappointed. He has a right to talk about his feelings and that the court will listen and understand. I will wait to talk about the bail issue.

Bottini:
aberrant behavior issue: This was a four year conduct. Not aberrant, he knew if he told Allen he needed help, he’d get it. He did this over and over for four years. Mr. Browne says well, compare this to Allen.
Not true. We went over this in detail. Veco didn’t get a pass. He sold the company at huge discount, because government wouldn’t give a pass. His family situation is nothing unusual. The fact is that he has family here, in state, his sister lives in Palmer.

He offers to help everyone. Modus operandi for Kohring. What is different is that the offer is directly to Allen and smith. After Easter Egg money, he offered to help Allen and Veco.

Contrast between the Kott trial and Kohring tapes, granted, he’s not Pete Kott when it comes to the colorful language, but you saw a guy who was politely corrupt. Doesn’t mean he wasn’t corrupt because he doesn’t swear. The fact that he’s - Andy Griffith - I don’t recall any shows where Andy Griffith took cash from anyone. He may be polite, but still corrupt.

Sullivan: Mr. Kohring convicted of multiple instances. I could talk about corrupting public process at great length. But anything I say would pale in comparison to that one snapshot of him taking money from Allen and asking “What can I do for you?” It says it all about Kohring and about the level of corruption in the legislature at that time. You’ve heard a lot about ppt - billions of dollars of tax revenue for the state - that snapshot showed that piece of legislation was being decided in the back room of a hotel. Spoke volumes about Vic Kohring, that he was willing to sell his office for gain,

Videos showed other traits - He was a manipulating and calculating person when it served his purpose. Timed visits when Veco needed something. Those are times he asked for things. He also knows how to play the pauper. He gave Smith and Allen song and dance about his conditions. Never told them that he was making $100K in per dieman and sleeping on couch by choice. Frequent flier at ethics office. He knew what he was doing.
Not aberrant behavior, at least 4 cash payments 2002-2006. How many times did we hear phone calls from Vic Kohring he was willing to help Allen and Smith. Vic Kohring’s illeagal conduct clear and the guilty found him guilty.

We asked tha integrity and honesty should have some meaning. The only way to make that image of dishonesty goes away when Vic Kohring goes away. We ask for 60 months.

Sedwick: Vic Kohring

Vic Kohring: Honorable Judge Sedwick, not here to plead for mercy. Instead, to plead my innocence. I was stunned to learn you were married to one of my greatest enemies. You were legally bound to excuse yourself. Furthermore you lived across the street from the governments star witness. I’m so disappointed that the person who holds the fate is married to the person whose job I eliminated.
Then this week’s latest motion you denied. The juror who regretted his decision.

I will admit, I showed poor judgment when I accepted cash for my daughter from someone I thought was my friend who betrayed me. I didn’t live up to my high standards. I never once voted for PPT. My words, How can I help? Were my mantra. Ironic that my words are now being used against me. Intended to be helpful.

The resutling conviction has destroyed me. Cost to me is approaching $half a million, all over $1000. But my spirit is not broken. We did all with integrity. Just an honest presentation of the facts. I used to believe in my government. I do not hold it in high regard as I used to. I believe in the principles. I won’t express remorse for something I didn’t do. The truth will only be reviewed if heard before jurors without bias. I thank the jurors but want to let them know they didn’t hear all the evidence.

I for one shall not rest until justice prevails. I didn’ nothing criminal. Iwas naive. I assert my innocence. All I ask for is to be treated fairly. All I ask for is a fair trial which I believe would find me innocent.

10:20am

Sedwick: As lawyers know, sentence requires applying all criteria.
1. Nature and circumstances of offense: Key criterion. Jury shows, Vic Kohring violated the public trust. Reflected in fact Congress has provided that most serious sentence is 20 years.
2. I agree that Vic Kohring’s objective was to serve interests of his constituents. Unfortunately, at the end he sold out the trust he worked so hard to earn, but participating in the relationship with Veco. Browne suggests that he was just doing what he always did - helping people. But difference between lawful and unlawful helpful. Since he spent so much time at the ethics office. It is clear to me, despite what he said, that he knew what he did was wrong.

I think there is no risk of Vic Kohring committing future crime. He has learned he must be careful to help people whose objectives are lawful.

Must consider impact on others. To reinforce message to people elected to serve the public.

Even Mr. Browne believes some period of incarceration is required.

Court has to consider what is available. Probation is legally authorized. Serious nature makes probation outside the bounds. Incarceration and supervised release left.

I have determined guideline 51-62 months. Instructed by congress to avoid disparities. All judges across the country consider the guidelines, even if not absolutely bound.
I have to provide for restitution. No way to pay that here.

Finally, Mr. Kohring's physical condition. Given Vic Kohring’s modest financial condition now, it appears he’ll get as good or better care in prison than he could afford himself. If he does need a surgical procedure soon, and plans on that and apparently has the wherewithal to pay for that.

Taking that all into account, I have to say does not deserve same as Kott or Anderson, behavior not as egregious. Clear to me that his desire to help shouldn’t have included things Veco wanted to do.

Finally, it has to be sufficient but no greater than necessary to achieve goals congress has set forth. Lower range is appropriate, 42 months is appropriate. Is one meets requirements of the statute, is no greater than necessary.

Appropriate to hear motion on Docket 181.

John Henry Browne: In recent past, I know you and most attorneys deal with people not released. Unusual for me. Usually a way uphill battle. Very uncomfortable to make arguments because of what is alleged.

Sedwick: Go ahead.

John Henry Browne: I would suggest there are substantial issues on appeal.

Sedwick: You can speak at length. I’ve read them.

John Henry Browne: There are meritorious issues. Novel, that trial judge has made opinion on his own that he is fair. And it is a meritorious issue. Search warrant issue is serious. Controlling law is 18USC…. Is he a flight risk or danger.

2. Is the appeal meritorious and not for the purpose of delay. You heard what he said to you, sticking to his guns. He believes he has meritorious issues on appeal.

3. Raise serious issues of law and fact.

I think he meets the criteria for meritorious issues on appeal.

He’s a very law abiding citizen outside of this issue.

He doesn’t have the $500,000 fees that Mr. Allen has. I’ll continue to help him.

Sullivan: As the court is aware, we received this motion late last night. Would like to respond in writing.

Sedwick: This is not complicated

Sullivan: We conceded he is not a flight risk

We take issue whether he has raised an issue that will be reversed or reduced sentence. We disagree. Laundry list of issues have all been fully vetted by the parties here. We believe the court has correctly handled them here.

Sedwick: As both noted the statute that controls here 18USC…. With exception of certain crimes irrelevant here.
1. Not flight risk or danger - Vic Kohring meets that
2. I do have to find not taken for purposes of delay that is likely to result in reversal or new trial with lesser penalty.
A. Not taken for delay
B. Reversal

With respect to related issues Browne and others have written. I believe my decisions isn’t at all unusual.

Good candidate for self surrender. He won’t be required to surrender any earlier than…
Monday June 30, 2008. Because Mr. Kohring needs to have surgery. That should give him adequate time to have the surgery and recuperate.

Supervised release for two years. Sentence to run concurrent on each account. Meaning he will serve all sentences at the same time. On release he shall be replaced on supervised…. Speaking way too fast.

1. Cooperate in collection of DNA sample
2. Searches by probation etc. Offers on reasonable suspicion…

Does not have ability to pay fine. Required. $300.

If his condition is such, he may surrender before June 30, I am highly unlikely to extend this no matter what the medical condition might be.

Any other matters before I mention appeal rights.

You have right to appeal….