Blog Ipsa Loquitur

Paige Williams, writing in The New Yorker, on Alabama judges with superpowers. Specifically, in Alabama, judges sitting specific courts can exercise the “Judicial Override.” An override is when a judge sentences a guilty defendant to death after a jury declines to impose the death penalty.

In effect, there are two opportunities for defendants to be sentenced to death: once by a jury and another time by a judge, sua sponte. In addition to all the usual concerns over the death penalty, like how black criminals are over 300% more likely to be executed than white criminals, and how there are hundreds of innocent people on death rows right now, there are extra problems with Alabama’s override system:

Every six years, Alabama elects circuit judges (who hear capital cases) and members of the Alabama Court of Criminal Appeals and the Alabama Supreme Court. Judicial overrides tend to spike in and around election years. According to a 2011 study by E.J.I., thirty per cent of the state’s death sentences in 2008, an election year, were imposed through override, compared with seven per cent the previous year.

I’m reminded of the Israeli parole boards, which grant fewer and fewer applications the longer their day goes. Humans aren’t machines, and seemingly trivial factors can have significant effects on our cognitive processes.

In this case, it’s not difficult to see the connection. Elected judges order the execution of more people in election years to make for cool TV:

Every election season for decades, television ads have shown aspiring judges posing with a hunting rifle or saying things like “I’ve looked killers in the eye and sentenced them to death.”

Yeah, that’s pretty horrifying.

It Gets Worse

Like most states, Alabama has egregiously loose campaign finance laws. When judges are elected (on the basis of sentencing people to die after a jury decided the opposite), there’s often an absurd campaign finance angle.

For example:

The state allows lawyers to contribute money to the campaigns of judges who may preside over their cases, and they do so routinely. Randy McNeill, the prosecutor who asked Judge Gordon to sentence Shonelle Jackson to death, had contributed to Gordon’s campaign fund.

McNeill, a deputy district attorney who some thought would make a good D.A., donated the money in April, 1991, with his wife, Margaret, who had clerked for Gordon. The McNeills gave fifty dollars, because Gordon, who was running unopposed, had personally capped contributions at that amount.

Oh, good. The judges have created their own campaign finance regulations, for money they accept from lawyers who argue in front of them.

You know, in other states, judges can’t even be Facebook friends with lawyers. Alabama’s letting them flat out exchange money. That’s an interesting twist on that whole “impartial judge” thing.

Published on under The News

A thought experiment: you’re the attorney for one of the largest school districts in America. The parents of a student in one of your schools are suing the district because one of your teachers sexually assaulted their child, a student at your school. The teacher was convicted of the crime a few years back, so you’re going to have to get a little creative here. From CBS Los Angeles:

“Why [isn’t] it her fault that she planned on having sex with her teacher? That she lied to her mother so she could have an opportunity to have sex with her teacher,” attorney W. Keith Wyatt said in a radio interview with KPCC. “That she went to a motel in which she engaged in voluntary consensual sex with her teacher. Why shouldn’t she be responsible for that?”


The LA School District actually won the case. The jury found that the school district had no knowledge of the assaults and therefore should not be liable for them. The article notes the teacher had a reputation for being handsy with students. Whatever the jury decided, their verdict probably had nothing to do with:

Remarks by attorney W. Keith Wyatt that crossing the street was more dangerous than deciding to have sex with a teacher.

spit take noise goes here

Now that is a really interesting argument. On the one hand, yes: I would be willing to bet that no one has ever been hit by a car while being assaulted by a pedophile. That is some sound statistical reasoning. On the other hand, you’re shockingly devoid of basic human empathy and seem hell-bent on blaming a kid for being assaulted.

All right, I can’t. Let’s roll up our sleeves. You want a stupid argument based on statistics? Let’s go, W. Keith Wyatt of the California law firm Ivie, McNeil & Wyatt. You and me. It’s a good ol’ fashioned stats-off.

Statistics For Lawyers 102

Take a gander at this other tragic story from a few weeks back. A small plane crashed into a building in Kansas and killed three people who were inside a flight simulator in that building.

This year, about 650 million people will get on a plane in America. According to a 2013 census of non-military flight simulators, there are about 330 commercial simulators (like for a 747 or Airbus) in America.

Stay with me here: even if there are a thousand “prosumer” flight simulators for each commercial simulator (there aren’t), and each of those hundreds of thousands of hypothetical prosumer simulators used three times a day every single day (they aren’t), there are still many orders of magnitude more people on planes than people in flight simulators in America each year.

About 25 people die on random, non-commercial flights in America every month. But because there are so many more people in the air every month, for the month of November, you were more likely to die in a flight simulator than on a plane. Statistically speaking.

Boom. How you like that stupid argument?

Oh also

Yeah, LA fired that firm so hard. What kind of jackass shows up to a sexual assault trial to blame the victim like that? That’s disgraceful.

Published on under Irreverently irrelevant

Margaret Sullivan, the Public Editor of the New York Times, writing about perceptions that the Times is only for the wealthy:

So who is The Times written for — the superwealthy, or for citizens of all income levels? Is the paper trying, in the axiom about journalism’s mission, to “afflict the comfortable and comfort the afflicted”? Or is it plumping the Hungarian goose-down pillows of the already quite cozy?

I asked the executive editor, Dean Baquet, whom he has in mind when he directs coverage and priorities.

“I think of The Times reader as very well-educated, worldly and likely affluent,” he said. “But I think we have as many college professors as Wall Street bankers.”

Oh, good. The audience runs the gamut of the net worth spectrum, from upper class to upper middle class. Glad you see yourself as catering to both sides.

Meanwhile, from the Nieman Reports, 16% Percent of Americans live in poverty (49.7 million total), but 0.2% of news stories covered poverty between 2007-2012.

Published on under The News

Remember that Reagan-era punchline about ketchup being classified as a vegetable for school lunches? I grew up thinking it was just a joke, but it has a 7,000 word Wikipedia article. This is probably how archaeologists in the future will measure the social impact of everything in the pre-nuclear wasteland: the length of the wikipedia article. As of this writing, the most important thing in society are… Supreme Court clerks. Huh. Well, I guess we know what those folks do in between terms.

So ketchup is a vegetable. Sure. Why not. But apparently, we’ve reducto’d this ad a little bit more absurdum:

Pizza is one of the school-food companies’ most popular products; schools purchase more than $450 million worth every year. Under the old rules, companies could market pizza slices as a product combining grains, protein and a full serving of vegetables.

This was possible thanks to a longstanding loophole: Rather than count the two tablespoons of tomato paste on a serving of pizza as two tablespoons of tomato paste, they could count it as eight tablespoons of tomatoes, the theory being that at some point before being processed, the two tablespoons had existed in the form of several whole tomatoes.

I love it when the pull quote is its own punchline.

Seriously, the New York Times Magazine wrote a surprisingly engrossing piece about this, titled How School Lunch Became the Latest Political Battleground. I’m surprised at how complicated it gets and how strange the bedfellows become, but that really comes with the territory at a certain point.

Published on under Not The Onion

By way of the always excellent Pirated Thoughts comes news that the Supreme Court of the United States has refused to hear the Sherlock Holmes case. Well, with all the questionable evidentiary issues, I’m more surprised it took this long for it to hit the high court, really. All right, so which one is this? The Blind Banker? The Lady in Pink? The Noodle Incident?

Actually, it’s about whether Sherlock Holmes is copyrighted or not:

Beginning in the 1880’s, [Sir Arthur Conan] Doyle authored and published four novels and 56 short stories about the exploits of detective Sherlock Holmes and his trusted sidekick, Dr. John H. Watson. When Leslie Klinger, an author and co-editor of a series of short stories of new and original stories in the Sherlock Holmes universe, sought to publish his book. The estate of Doyle soon came a’ knocking and stated Klinger must be licensed to use the characters and their likeness.

Now, I know what you’re thinking. “Dominic, the first Sherlock Holmes story appeared in the same year that earmuffs and phonograph were patented. That’s basically the Stone Age.”

Yes, but, via SCOTUS Blog, the stupid argument which birthed so many billable hours. As they wrote over the summer:

Doyle has been dead for eighty-four years, but because of extensions of copyright terms, ten of his fifty-six short stories continue to be protected from copying. All of the short stories and four novels were published between 1887 and 1927, but all of the collection except ten short stories have entered into the public domain as copyrights expired.

The Doyle estate, though, is pressing a quite unusual copyright theory. It contends that, since Doyle continued to develop the characters of Holmes and Watson throughout all of the stories, the characters themselves cannot be copied even for what Doyle wrote about them in the works that are now part of the public domain and thus ordinarily would be fair game for use by others.

You got that, right? The Doyle estate admits Sir Arthur started writing Sherlock stuff in 1887, but he kept writing about it later, and so copyright should extend backwards in time from the very last story all the way to the first story. Like an inverse tachyon pulse phased through the deflector dish. No, that sentence didn’t make any sense, and neither did the other one.

Doyle’s estate even tried to invent the idea of “rounded” and “flat” characters, Holmes and Watson being the former, which deserve to be protected backwards in time. It was… interesting.

Given the way Congress has been all too happy to retroactively extend copyright for dead people, (“to promote the useful arts and sciences,” don’t forget), I guess it was worth a shot. But Judge Richard Posner of the Seventh Circuit Court of Appeals had some choice words for shooting that particular theory down.

Lacking any ground known to American law for asserting post-expiration copyright protection of Holmes and Watson in pre-1923 stories and novels going back to 1887, the estate argues that creativity will be discouraged if we don’t allow such an extension.

If [Doyle] loses copyright on the original character, his incentive to improve the character in future work may be diminished because he’ll be competing with copiers, such as the authors whom Klinger wishes to anthologize.

Of course this point has no application to the present case, Arthur Conan Doyle having died 84 years ago.

Read the whole opinion here. It’s Posner, so you know it’s enjoyable.

Published on under The News

A couple of interesting statistics jumped out at me in this Village Voice story about the rise and decline of illegal cabs in New York City, against the backdrop of the two existing fleets. Essentially, you have the Yellow cabs, which have been around for decades and are licensed to serve the entire city, and you have the newer Green cabs, which are licensed for “everywhere but Manhattan.” You also have the illegal cabs, which are the focus of the story, and it’s very compelling and you should read it but I’m not touching here.

So yes, New York City has two separate taxi fleets. This might seem a little silly if you haven’t spent a lot of time in New York City. If the Yellow cabs serve the entire city, why did they make another set of taxis just to serve a subset of the city? Well, there are reasons. One of them is that the Yellow cabs can serve the entire city, but they don’t:

A [Taxi and Limousine Commission, the regulatory body for all taxis in New York City,] analysis released in 2012 found that 95 percent of yellow-taxi pickups happened either in central and Lower Manhattan or at airports, leaving the outer boroughs badly underserved.

In 2012, there weren’t any Green taxis at all. So that’s almost all of the taxis in New York City serving just one small area of the city. (Specifically, the area with all the money.)

Well, is that because there are just a lot of people in Manhattan? Maybe it has almost all the people?

When the green cabs finally arrived, in August 2013, they were met with immediate praise from residents of the outer boroughs, where more than 80 percent of the city’s population resides, according to U.S. Census data. In the program’s first year, the green cabs collectively made more than 43,000 trips a day. They flocked to popular neighborhoods like Williamsburg and Harlem and Astoria, though they also fanned out into the further reaches of the outer boroughs.

So that’s a no. Most of the people don’t live in Manhattan. Okay. So not only does the vast majority of New York City not live in Manhattan, but when Green taxis hit the streets, there are more than 40,000 people every day that want a ride. It sounds like that’s a lot, but the Yellow taxis do 485,000 trips per day. That’s absolutely insane.

The Yellow taxis do 95% of their pickups in Manhattan, and then when Green taxis are out and about, the Yellow taxis have 93% of the combined Green and Yellow rides. It may be that the 20% of the population living in Manhattan just needs to use taxis more than the 80% living outside Manhattan.

One last fact, I promise:

And [Green taxis] proved that they weren’t a major threat to Yellow taxis, which only saw their fares and tips dip by 2 percent from the previous year.

So, to recap, Green taxis only serve the parts of New York City where 5% of Yellow taxi pickups happen (despite those parts having 80% of the population). Green taxis are now 7% of all taxi trips in the city, a change which has cut into taxi revenues by 2% year over year. Inflation last year was 1.7% – so Green taxis ate into the Yellow taxi business just about as much as a sluggish recovery from a global recession.

Of course, they’re both happening at the same time; the Yellow taxi lobby can’t do anything about inflation, but there are ways to do something about Green taxis.

Published on under Hail Hydra!