Friday, September 27, 2013

Tuesday, September 24, 2013

Monday, September 23, 2013


I don’t like to read, watch, or listen to the news, and it’s not because the media concentrates on bad news (like the possibility that an asteroid might wipe out humanity) and trivialities (like Miley Cyrus’s twerking). I don’t like it because I hear very little good analysis and a great deal of fractured logic.

I was flabbergasted by a headline from The Week, an online magazine. The headline read: "The GOP's Stunning Hypocrisy." I suspected from the headline that I was going to find some stunning demagoguery in the article. I did. I counted approximately 21 points made by the article, and only two of them were germane to the stated topic—the GOP’s responsibility for the US tottering on the brink of fiscal disaster.

Of the 21 points made, the only germane point came when the article correctly debunked an advertisement run by an unidentified opponent of Obamacare. According to the article, the ad consisted of a creepy looking Uncle Sam giving a woman a vaginal examination. Since I am relatively certain that Obamacare doesn’t require gynecologists to dress up like Uncle Sam, the ad was obviously an attempt to stampede people into supporting the repeal of Obamacare by appealing to emotion.   

The other valid point was an admission that Obamacare is flawed, with a listing of some of its defects. (Let me hasten to point out that the simple fact of a program's being flawed doesn't make it a bad program. Nothing is perfect, and imperfection does not decisively invalidate a program. It's a question of how flawed it is and whether there is a less flawed alternative available. The jury system is a terribly flawed method of resolving legal issues, but it stands head and shoulders above any other method which has ever been devised).

The remaining points all contained logical fallacies. At the end of this post I’ll catalog the arguments and their flaws, but first I want to challenge the main point of the article—that if we go over the fiscal cliff, it will be because of those villainous Republicans.

I’ll be the first to say that there are some villainous Republicans—probably as many as there are villainous Democrats. But as the article admitted, there are many Republicans who want to work this issue out without going over the fiscal cliff. From the article, it seems that there is a faction within the Republican party who, according to the article, rabidly champion the defunding of Obamacare and are willing to shut down the government to achieve that end. I haven’t done a headcount, but I suspect that there are enough non-rabid Republicans who are willing to work with non-rabid Democrats to hammer out a compromise. The problem comes about because they cannot muster a veto-proof majority. This is tragic because of the next point I'm going to make.

On the other side of the issue is a President who has pronounced himself as steadfastly opposed to compromise as the anti-Obamacare faction of the Republican party. He says he won’t negotiate: “It’s my way or the highway.” If those Republicans who steadfastly oppose Obamacare to the point of government shutdown are insane (the article’s words, not mine), then the Democrat who just as steadfastly opposes compromise is also insane.

As I see it, neither side is insane, they’re just selfish. They have placed winning their point above the welfare of the country. It seems to me that both sides are satisfied to crash the ship of state because both sides believe that they’re going to  derive political benefit from the wreckage. I think that the President is the one who has correctly assessed the political landscape. He sees a win/win situation. His calculus probably goes something like this: Either he proves he is a tough guy by forcing Congress to bow to his will or he comes out looking like the victim of Republican irresponsibility. Whichever happens, the news media vilifies the Republican party, and the Democrats retain control of the Presidency and Congress when Hillary Clinton gets elected and hordes of Republican Congressmen are voted out of office. This is one reason I don’t like reading, watching, or listening to the news. I see selfish politicians making political hay and harming the welfare of the American people in the process.

Now for the article's fallacious reasoning:

[1] Lawmakers could fix all this today if they really wanted to. Really? Lawmakers can’t get anything done expeditiously. The statement is a gross oversimplification of the legislative process.

[2] "Uber-conservative" House Republicans are threatening to shut down the government. All House Republicans? Or just a small group of politicians which the article later calls uber-conservatives. This is the genetic fallacy, attributing to an entire group a trait exhibited by only a portion of the group. Also, these villainous Republicans can't possibly shut down the government. They can be outvoted by a coalition of Democrats and Republicans who are willing to compromise. The only person who can shut down the government is the President, by vetoing the compromise or by using his threat of veto to stymie compromise.

[3] Sane Republicans know the uber-conservatives are wrong. This point defeats the previous point by showing it to be false. It is also an argumentum ad hominem. You don’t logically advance your point by calling the opposition names.

[4] Republican Senator Richard Burr calls it "the dumbest idea I've ever heard." More argumentum ad hominem. Actually it is not a dumb idea. If you put your personal agenda above the public welfare, it is a quite rational course of action.

[5] Conservative columnist Charles Krauthammer says they are "out of their minds." and are flirting with political "catastrophe." Same critique as point (4) above.

[6] Karl Rove thinks it's stupid, too. Same critique as points (4) and (5) above. Arguments (2) through (6) are actually the same argument stated five different ways.

[7] The uber-conservative Republicans think Burr and Krauthammer aren't true Republicans. Non sequitur. The party affiliation of Burr and Krauthammer is irrelevant to resolution of this mess. The article is going to continue the non sequitur in the next point. Also argumentum ad hominem, calling the

[8] The uber-conservatives are “flat earthers” who don’t think Abraham Lincoln, Richard Nixon, and Ronald Reagan were true Republicans. More argumentum ad hominem, calling the uber-conservatives flat-earthers.

[9] This was the valid point about the tasteless ad depicting Uncle Sam doing a vaginal examination."

[10] The uber-conservatives want to force women to have transvaginal ultrasounds before having an abortion. This is just a continuation of point (9) above which relies on a species of ad hominem argument known as tu quoque, accusing the opposition of doing exactly the same thing they’re advocating against. .  

[11] This point is the admission that Obamacare is flawed.

[12] A USA Today poll shows that only 25 percent of Americans understand Obamacare. Probably a larger percentage than the percentage of legislators who read the bill before passing it. (The point I have just made is an argumentum ad hominem). The author made point [11] to set up point [12].

[12] The confusion is a “golden opportunity for Republicans. Non sequitur. How is it a golden opportunity for the Republican party? The author has already called it “the dumbest idea . . . ever heard,” (point [4]), conceived by people who are “out of their minds” (point [5]) and engaging in behavior which is “stupid” (point [6]).

[13] The super-smart president is engaging in a high-tech outreach strategy like the one he used to get re-elected. Characterizing Obama’s stubborn insistence on government shutdown before compromise as a high-tech strategy seems to me to be quite a stretch. Looks like the author is gilding the lily.   

[14] Republican holier-than-thou hypocrisy doesn't end with Obamacare. Ad hominem and irrelevant. We’re talking about Obamacare, not the human worth of Republicans. Republicans could all be hypocrites and Obamacare could still be a bad idea
[15-21]. More irrelevant ad hominem argument. It reminds me of a maxim attributed to the Roman orator Cicero: "If you have no case, abuse the plaintiff."


I got an inquiry the other day concerning a case where a police officer ran his police cruiser over a suspect fleeing on foot. The officer was immediately fired, and a grand jury subsequently declined to file charges against  him. You can find the article which discusses the grand jury's action here: Warning: the dashcam video is both graphic and disturbing.

The reporter, Frank Fernandez of the Daytona Beach News Journal, asked me to  comment on what in general guides prosecutors to present cases to the grand jury rather than making the charging decision within the office. For editorial reasons, not all of my response was quoted in the paper. The quote was accurate, but it did not expound my full rationale for the position I took. Reporters only have limited space for each article, and they consult multiple "experts." They cannot include everything every "expert" says. (I put expert in quotation marks because I feel the term is over-used. A person who is knowledgeable about a subject is not necessarily an expert on the subject).

Here is the article:

Here, then is most of what I wrote:
It is fairly standard practice for SAO’s to refer such cases as this to a grand jury. The prosecutor in a case like this is in a damned-if-you-do-damned-if-you-don’t situation. If the prosecutor makes the decision unilaterally, no matter what decision the prosecutor makes, it will be criticized. A no-file decision will be criticized as being motivated by friendship of prosecutors for law enforcement officers. A decision to file is open to the criticism that the prosecutor is trying to gain political advantage by engaging in the prosecution. Sending the case to a grand jury somewhat ameliorates, but does not eliminate, these criticisms.
I left out some of my comments because they did not support the point I was making, but were introductory to my second point. Within the comments I made, I did not include a full discussion of the rationale for taking the case to the grand jury. I said taking the case to a grand jury only ameliorated the possible criticism rather than eliminating it. I made this statement because there is a standard criticism of grand juries: The standard criticism of grand juries is that a prosecutor can manipulate a grand jury into doing anything the prosecutor wants. This is true.
If a prosecutor uses the grand jury in this way, I believe the prosecutor is misusing the grand jury. Just as anyone who owns a firearm can misuse it to commit murder, any prosecutor can manipulate the evidence to get a grand jury to do what the prosecutor wants. This is summed up in the old saw attributed to the Hon. Saul Wachtler, a former judge on the New York Court of Appeals. Wachtler supposedly said that a "good" prosecutor can get a grand jury to indict a ham sandwich. To which I make the reply: A prosecutor who would do that is not a good prosecutor. In fact a prosecutor who would do that is dumber than a ham sandwich.
The vast majority of firearm owners never commit murder. The vast majority of prosecutors never ask a grand jury to indict a ham sandwich. The standard objection to taking cases to a grand jury, although colorfully stated, weighs should be accorded little weight.
I gave another reason for taking the case to a grand jury, and I think it is a powerful reason:
Simple negligence will not support a conviction for vehicular homicide. I can see where a prosecutor evaluating this case would come to the conclusion that you might have difficulty convincing a jury that this is more than simple negligence.  When the case is iffy, a grand jury can provide a very good barometer of what a petit jury will probably do. If the grand jury decides to no bill the case, that means you have no chance of getting a verdict of guilty before a petit jury. If the grand jury indicts, that means you have a shot at getting a conviction. I’ve taken many iffy cases to grand juries for just this reason, to better evaluate my chances of getting a conviction at trial. Taking the case to a coroner’s inquest isn’t going to accomplish this second purpose. In Florida the county judge is the coroner, and there is no coroner’s jury. The county judge decides, and you still have no feel for what a petit jury will do with the case.
A grand jury is a jury. A petit jury is a jury. A grand jury is probably going to think like a petit jury. A lawyer is not a juror and doesn't think like a juror. A grand jury will have better sense about what a petit jury will do than a lawyer. It makes sense for prosecutors, who are lawyers, to appeal to grand juries for help in sorting out whether a case should be filed. I have tremendous faith in the wisdom of grand juries. They have saved me from making terrible mistakes in filing, and they have caused me to prosecute case I would otherwise have no-filed.
I was also asked whether it wouldn't be better to take the case to a coroner's inquest. We don't have coroner's juries in Florida. Coupling this fact with the above argument for taking iffy cases to grand juries, you can immediately see one reason not to take the case to a coroner's inquest: The coroner is a judge. A judge is a lawyer. Lawyers are not as good as grand juries in predicting what a petit jury will do.
There are other reasons which I gave the reporter:
The only reason to take the case to a coroner’s inquest is to have the judge rubberstamp a previously made decision to no-file the case. You don’t think the case is worth filing, and you want the evidence out there for people to see so that they will agree with your decision to no file. I’ve taken a couple of cases to coroner’s inquests for this reason. Sometimes it works well, but sometimes it blows up in your face. Following the dictum “if it bleeds, it leads,” news outlets tend to report the salacious details from a coroner’s inquest, ignoring the more mundane evidence. If the salacious details work in favor of a no-file, there’s no problem, but if they work in favor of filing you can wind up causing more problems than you solve. Based on prior bad experiences with such inquests, I would not take a case to a coroner’s inquest unless the salacious details militated in favor of a no-file. In my experience, judges get very upset about being asked to hold a coroner’s inquest. They think that the prosecutor has decided to no-file the case and wants to shift the blame for the no-file to the judge.
Here are a couple of examples. I considered these cases no-brainers as far as the decision to no-file, but I also considered them cases which could result in an erosion of trust in the criminal justice system if we made the decision unilaterally. In both cases I felt it was better to sidestep the "ham sandwich" argument by going to a coroner's inquest. If the case were a no-brainer for filing, no purpose could be served by taking the case to a coroner's inquest. I would have taken both of these cases to a grand jury if the case were iffy OR if it were a no-brainer for filing. If the cases had not been homicide cases, and they clearly should have been filed, I would have simply filed charges.

First case: An officer did something stupid and it resulted in an arrestee being accidentally killed. There was a great deal of public sentiment about the case. Some very unreliable witnesses were making statements designed to whip the public into a frenzy of anger. We decided to take the case to a coroner's jury so that the public could see the very clear (but very dull)  scientific evidence indicating the death was accidental. We put on the unreliable witnesses that morning and they made highly inflammatory statements. We thoroughly impeached them, completely nullifying their testimony. The TV cameras were there that morning recording every word that was said. They left after lunch in order to make sure they got the story on the 6:00 PM report. They completely missed the dull, boring scientific evidence we put on that afternoon. What sound bites do you think they ran on TV that night? We had a nightmare aftermath.
Second case: Parents, for religious reasons, did not seek medical attention, and a child died. After we disposed of this case, the appellate courts of Florida held that parents should not be prosecuted in such a situation, but that decision was years in the future. Public sentiment ran high for filing. We took the case to a coroner's inquest, and the mother testified. Her tearful testimony, which was widely reported, caused the public sentiment to cool.

In this particular case, it cannot be said that the prosecutor acted inappropriately by taking the case to a grand jury and relying upon their wisdom to determine whether charges should be filed.


Friday, September 20, 2013


ABRAHAM LINCOLN'S ALMANAC TRIAL: DYING DECLARATIONS: In order to spare anyone embarrassment, I will not identify the parties involved in the story I am about to tell. I was not involved in th...


As a kid, I was a voracious reader of science fiction. I liked the big three, Heinlein, Asimov, and Clarke, but I also read some of the lesser luminaries, such as de Camp, Norton, and Fredric Brown. The late 60’s saw J.R.R. Tolkien’s Lord of the Rings trilogy achieve cult classic status, and I began to shift from more conventional science fiction to the genre of heroic fantasy, sometimes called “sword and sorcery.” I once read an editorial that claimed a story could be very good science fiction and at the same time be very bad literature. It was along about this time that I read City, by Clifford D. Simak. I thought that City was a shining example of the point that the editorial was making. I didn’t think it was a very good book as far as literary merit was concerned, but I thought it was excellent science fiction.

While I was taking the legal writing course at the University of Florida, I got the idea of trying to blend a science fiction motif with a sort of a police procedural. The result was The Killing of Jorm Pelorvis, an imaginary opinion by the Florida Supreme Court trying to decide precisely what the term “human being” meant. How “human” does someone have to be in order for his killing to be deemed murder? I thought it was an intriguing question, and I thought I came up with a rather inventive answer. I put the story aside and completely forgot about it until recently, when I discovered it at the bottom of a box of old papers.

I laboriously transcribed the story from a handwritten manuscript to a digital typescript, carefully removing the anachronisms from the text (e.g., DNA was unknown when I wrote the story). Then I wrestled with what, if anything, to do with the manuscript. I decided to publish it on Kindle. I had enjoyed writing the story, and someone else might enjoy reading it. There was one huge problem with the story. It was written in the form of a legal opinion, and legal opinions are dreadfully dull.

The Killing of Jorm Pelorvis seems to exemplify the proposition that good science fiction is not necessarily good literature. A good novelist could probably turn the concept into a rollicking good story, but I am no novelist. I think I’ll stick to writing nonfiction.

Thursday, September 19, 2013


I blogged a while back that I had sent the final manuscript of my latest book off to the publisher. I thought I had finished and could move on from  Abraham Lincoln's Almanac Trial to my next project--the Lindbergh Kidnapping Case. I was wrong.

When my kids were young, I used to spend Christmas Eve putting their toys together with my hand-dandy tool kit. I took it as a point of honor not to look at the directions unless it was absolutely necessary. With this attitude, I created far more work for myself than necessary. If I had only stopped to read the directions, I would have gotten much more sleep on Christmas Eve. Before GPS, I was the same way about driving directions. I never asked anyone for directions until I was hopelessly lost.

I brought this same attitude to the writing of books. I want to write the book without reading the editorial requirements, and it has caused me countless hours of rewriting. I never seem to learn. When I wrote The Last Murder, I did the first few drafts of the manuscript using the wrong citation form. When my editor pointed that fact out to me, I redid the citations without reading the directions for the citation form they wanted me to use. Then I bought a copy of the Chicago Manual of Style (CMS), read the directions, and wound up having to completely redo the citations again.

When I wrote the manuscript for Abraham Lincoln's Almanac Trial, I "knew" what the requirements were, so I merely skimmed over the manuscript specifications without studying them in depth. Not a good idea. Two days ago I got an email from my editor saying that had left out some necessary sections and that I needed to get them sent in. Oops. He also asked me to do a bibliography for the book. The last book I did for Praeger, I was told to dispense with a bibliography, but to do full form citations in the endnotes. I had taken it for granted that's what they wanted for the new book, but experience should have taught me not to take things for granted.

No problem, I thought, I can whip out a bibliography in short order. I got the bibliography done quickly, but then I had another problem. I was now 2,700 words over the contractual word limit. I told my editor about the problem and promised would have the manuscript trimmed down to the limit by Friday of next week. Since my wife Lane has been up in Ohio helping our daughter recover from foot surgery, I have had trouble sleeping. So last night, I pulled an all-nighter trimming the manuscript to get it under the word limit.

I decided that the best way to trim words without trimming content would be to use the CMS short citation form in the endnotes. With the short form, you fully cite the book the first time you mention it in the endnotes and give an abbreviated citation afterwards. The abbreviated citation should be full enough to guide the reader unerringly to the full citation contained in the bibliography.

A full citation looks something like this:

Ida M. Tarbell, The Life of Abraham Lincoln: Drawn from Original Sources and Containing Many Speeches, Letters, and Telegrams Hitherto Unpublished and Illustrated with Many Reproductions from Original Paintings, Photographs, Etc., Volume 2 (New York: Lincoln History Society, 1907),  65, (accessed December 17, 2012).

The same citation in short form would look something like this:

Tarbell, Life of Lincoln, Volume 2, 65.

When you're dealing with books which have multiple authors and long titles, you can save a lot of printer's ink using the short citation form. I didn't get to bed until well after midnight, but I got it done. I trimmed almost 6,000 words from the manuscript simply by shortening the citations. This afternoon, I got an email from my editor. He said that he had talked our word-count problem over with the higher-ups, and they had okayed the overage--no need to trim anything from the manuscript. I wrote him back and said "Too late. I've already trimmed the manuscript."

If only I had gotten the directions straight at the outset, I could have saved myself a lot of wasted effort. I'll do better on my next book. I'll read the editorial requirements before I write the book. Yeah, right.

Monday, September 16, 2013

Wednesday, September 11, 2013


Although I try to follow the old dictum “If you can’t say something good about someone, don’t say anything,” I sometimes (maybe even often) fail to live up to it. I’m about to say something uncomplimentary about our attorney general who, for reasons of convenience, got an execution postponed. Her reason for doing so, as I understand, was to accommodate a fundraiser she was holding on the original date of the execution. She couldn’t be at both, so she postponed the more important event. This example of misplaced priorities raises a question in my mind: If her judgment is so flawed in this area, how flawed is it in other areas? Do we need an attorney general with such abominable judgment?

I began working on the case which she postponed back in 1988 when I was called to the scene of the crime and observed the recovery of the victim’s body and the preservation of the evidence. It was not pleasant. Two years later, I presented the case to a jury and asked them to recommend the death sentence and asked a judge to impose it. I assisted in any way I could with another prosecution which resulted in another death penalty for the same offender. I saw firsthand the anguish of two families whose daughters had been brutally murdered. Those families will never have closure until the execution is carried out, and our state government owes it to them to see that the execution is carried out as expeditiously as possible.
Any politician who, because of considerations of political advantage, causes a delay in that process deserves censure. That politician deserves a double dose of censure if, as is the case here, that politician is familiar with the death penalty process and knows firsthand the anguish caused to victims’ families when the process is delayed.
The death penalty which has been delayed is the result of one of the best, most professional law enforcement efforts I have ever been involved in. Officers from multiple agencies in Kentucky, Tennessee, Florida, and the Federal level showed a level of competence, cooperation, and professionalism unequaled in my 30+ years of experience in the criminal justice system. Multiple prosecutors' offices in two states (Tennessee and Florida) showed a remarkably high level of cooperation and courtesy in working together to obtain two death penalties and to see to it that they were upheld. Now we have (hopefully) come to the end of a much-delayed 25 year process, and it gets delayed one more time because someone wants to attend a political fundraiser. I don't think I will be contributing to her campaign.


ABRAHAM LINCOLN'S ALMANAC TRIAL: INVESTIGATING MOONLIGHT MURDERS REVISITED: I recently posted a description of a long-ago murder case where we had an issue with moonlight and almanacs. My adversary in that trial and ...

Monday, September 9, 2013

Saturday, September 7, 2013

Friday, September 6, 2013


Back in the 1960's, President Lyndon Johnson was confronted with the perceived necessity to take military action in response to the Tonkin Gulf incident. At that time he was embroiled in his social agenda, The Great Society. He elected to take action, but he also decided not to enlist the support of the American population. He reasoned that if popular sentiment were stirred in favor of the military action, it might detract from his Great Society efforts. This was not the only military mistake made during the Vietnam Era, but you could say it was one of the first. A good friend of mine once told me that "It takes three [big mistakes] to make a disaster." In Vietnam our Presidents made many big mistakes, and one of the biggest was not enlisting the support of the American citizenry.

Kings and dictators can wage war without the approval of their subjects, but in a free country warfare cannot be successful without the full support of the population. This was demonstrated by the popular reaction to the Tet Offensive, a tactical victory but a strategic disaster.

When we wage war, we would do well to follow Colin Powell's three rules for military action: (1) Have a clearly defined, obtainable objective. (2) Employ overwhelming force. (3) Have an exit strategy.

Let's take these considerations and apply them to the current situation in Syria. Somebody may have gassed innocent civilians. It may be the government did it. It may be the rebels. Odds are it's the government but we can't really be sure at this point. We can be sure that neither the government nor the rebels are friends of the U.S. The American media is clamoring for some sort of military action because children were killed in the attack. The death of children is deplorable, but excessive emotion over the death of children can lead to abominably bad decisions. Although Machiavelli is not my favorite political philosopher, I do agree with his precept that political decision should not be guided by emotion but rather by logic. Is there some other reason than dead children for us becoming involved in the quagmire of a Middle Eastern war? How many dead Americans might result from our becoming involved? It may sound callous, but I think that keeping Americans alive is a more attainable objective than avenging deaths on the other side of the world.

Our President has decided that he can unilaterally, and without anyone's consent, wage war after the manner of a king or a dictator. He has, however, given Congress the opportunity to rubberstamp his decision. Congress may very well do so, but it appears that the American public disapproves. Our President is busily (and apparently unsuccessfully) courting foreign governments to buy into military action, but he has done nothing to enlist the support of the American people. All this is a huge red flag indicating that military action may very well be ill-advised.

Having decided that military action does not have the support of the American people, let us see how it stacks up against the Powell Doctrine. (1) A clearly defined, obtainable objective. We're going to punish the Syrian government. How? What happens after we bomb them? Is having the Syrian government say "We're sorry. We've been bad boys and won't do it again" our objective? (2) Overwhelming force. Is "no boots on the ground" overwhelming force? Isn't that how we started the Vietnam fiasco? Has any air force ever won a war without putting boots on the ground? One of the big mistakes we made in Vietnam was making repeated decisions to use underwhelming force, which merely incensed the enemy rather than breaking its will to fight. (3) An exit strategy. Okay, we've done limited bombing. Now what?

Nightmare scenario: The Syrian government relocates an orphanage to the site of one of our military targets. We kill far more children with our bombing that the Syrian government did with its gas. Now what?

In Syria right now, we have two forces, both hostile to America, warring with each other. Civilian noncombatants are getting killed. Civilian noncombatants get killed in every war. It is unfortunate, but unavoidable. From a Machiavellian perspective, when your enemies are fighting each other instead of attacking you, you should stand back and let them have at it.

Wednesday, September 4, 2013