Great article in the New York Times about how technology is turning the rules of evidence, which have been established over the past 400 years, on its head.
Its a standard admonition from a judge to jury. Do not read any newspapers, watch any television, or investigate for yourself. Do not discuss the case with fellow jurors, or talk to anyone about the matter on which you are deciding. The purpose of the instruction is to ensure that a case is solely decided on the admissible evidence permitted in the court room by an untainted, unbiased and impartial jury.
Problem is that in this day of the Blackberry and iphone, accessing information has never been simpler. Go to any court room, any day and you will see just about everyone: clerks, lawyers, jurors, even judges plugged in and surfing the net. Whether they are checking emails, texting, updating facebook status, Twittering, or just playing games or catching up on headlines the courts are not excluded are saturated with interconnected activity.
Last week the conviction of former Pennsylvania state senator, Vincent J. Fumo was threatened, and still might be on appeal, because one of the jurors was using Twitter to send messages to his followers about the trial. He was questioned by the judge and the attorneys and insisted that no one passed any information to him about the case so the judge allowed the guilty verdict to stand. But how easily could it have been otherwise? that question will be dealt with on appeal.
In a less publicized case, a Federal drug trial in Florida was overturned when a juror was confronted, and admitted having done independent on-line research, in violation of the rules of evidence and the judge's instructions. However in a twist showing the pervasiveness of the potential problem, 8 of the other 11 jurors admitted having done the same thing. An isolated incident? Perhaps. But perhaps not.
My perception is there has always existed a frustration among jurors that they believe they are not getting a full story and that it is not fair to them to exclude what they perceive to be pertinent information. Often it is true that they are not given all the details. In the case of a criminal defendant, his past crimes cannot come into evidence unless he testifies and only then for the purpose of attacking his credibility. But jurors can't ordinarily know about past bad acts because the rules say a person has to be tried on the charges before him and not because a thief is always a thief. The rules make sense but that doesn't make it any less frustrating.
The bias today is towards information -- all information and the more, the better. People go on WebMD before visiting their doctors. They go to Edmunds or carfax before buying a car and if they can access information about a matter in which they could very well be deciding someone's freedom the temptation to find out more than what hired representative is telling you can just be too much.
The legal profession generally does not like change, certainly not quick change. The legal principle of stare decisis, letting established law stand, is well grounded and well meaning but right now the hands of judges are being forced. The legal system is not going to be able to ignore the impact of technology much longer. It's one thing to say that all outside influences should be ignored at a trial; it's another to ignore reality. And right now the reality is the jurors want to know more. Somehow we need to find a way, with fairness for all, to give it to them.
Wednesday, March 18, 2009
Tuesday, March 17, 2009
Rosen: A Modern Purim Story
It seems almost too much of a coincidence that the complaint was filed just prior to Purim. Last week a modern day Purimspiel, not on stage, but in pleadings, was filed in District of Columbia Superior Court. While it by no means is the final chapter, the story appears to be reaching an end, and it is fascinating that Steven Rosen seems to be positioning himself as Mordecai seeking exoneration not through hanging, but through judgment.
Our story begins in August, 2004. when it was first reported that there was a spy in Washington delivering top military secret information to Israel. It turns out that there were three alleged spies, two employees of the lobbying group, AIPAC, an Israeli advocacy group based in Washington and a staffer from the Department of Defense.
Former AIPAC employees Steven Rosen and Keith Weissman were accused under the seldom used Espionage Act. The act's purpose is to prohibit Americans from taking classified information that could be used to harm the United States and giving it over to foreign governments. In Rosen and Weissman's case that were accused of meeting with Lawrence Franklin, a Department of Defense staffer, who gave Rosen and Weissman information about America's military, intelligence and defense strategy in dealing with Iran. Rosen and Weissman are accused of turning the information over to Israel.
At first AIPAC stood by their employees. According to Rosen, he even received a performance bonus in March 2005. However AIPAC was under heavy pressure from the feds. Their offices were raided and their records were subpoenaed. There was talk of an indictment against the organization and possibly they would even be charged as a foreign agent. AIPAC took the path of least resistance, they caved. In April, 2005 AIPAC fired Rosen and Weissman and issued a statement that they were fired because thier activities "did not comport with standards that AIPAC expects of all its employees.”
In the meantime Rosen has been fighting back on his own, and without the help of AIPAC, and winning round after round against the Federal Government. First, he won the right to call high government officials as witnesses at trial. Then it was ordered that the Government must answer information subpoenas regarding foreign policy strategy and directives. If the case ever gets to trial it is quite possible that Condoleeza Rice and Paul Wolfowitz will be required to give testimony under oath.
Most recently Rosen won an appeal requiring the Government to prove that any information passed was a "closely held secret." That creates a catch-22 for the government. How do you prove top-secret information in open court without exposing the secret? On the other hand part of the defense's argument is there was no information turned over that was really closely held. So far the government is reluctant to expose their case.
Like Megillat Esther, our story takes a detour. Charles Freeman, a former Saudi Ambassador was named earlier this year as the nominee designate for chairman of the National Intelligence Counsel. He seemed to be a sure-shot confrimation. Which would make him a chief advisor to President Obama. That was until Steven Rosen, independent of AIPAC and despite criticism from the usual suspects, pointed out that Freeman in his estimation was an Arab apoligist and an Israel basher. There is no doubt that he is a huge fan of Saudi Arabia and said of the Saudi King, "I believe King Abdullah is very rapidly becoming Abdullah the Great," Freeman vehemently critcizes Israel's policy in dealing with its Arab neighbors and the Palestinians. Freeman has even gone so far as to say that America's relationship with Israel was the main cause of the Al Queda Terrorist Acts on September 11, 2001.
Last week Freeman was not designated chairman but rather 'resigned.' But he wasn't content to 'resign' for the typical 'personal reasons.' He chose to elaborate, and as is typical with Israel haters, it was the fault of the Jews: Freeman wrote:
And Freeman son, Charels Freeman chimed in as well,
"His appointment is being challenged these days by a small cabal of folks that believe first and foremost in the importance of allegiance to Israel as a core U.S. priority. Putting aside my natural instinct as a son to want to punch some of these guys in the face for some of the things they are saying about my father, for heaven's sake, I'm more deeply angry about the lack of guile some of these people have."
Yes, a 'cabal' with 'guile' who show an 'allegiance to Israel', but mind you we are not talking about Jews. Just 'the Israel lobby.' The Freemans were apparently talking about those other supporters of Israel. To the Freemans' way of thinking, supporting Israel as a core U.S. priority disqualifies one from being 'objective' on America's role in the middle east. But blaming Israel for terrorist acts exclusively involving Arabs makes one the most appropriate candidate for the head of the National Intelligence. "And the Ten Sons of Haman were hung on the same gallows of their father" (Esther 9:7).
The main theme of Purim is that the Jews were able to turn their fate upside down. On March 2, 2009, less than a week before this year's celebration, Rosen made a stab at completing his personal exoneration. He filed suit against AIPAC to clear his name and accused the organization of doing the government's bidding. Rosen asserts that his actions were directed by AIPAC. He maintains that he provided his superiors with regular briefings about his efforts to gather information from government officials. He goes on to talk about AIPAC's information gathering techniques and its role in international diplomacy. He threatens full disclosure.
Truth be told, don't ever expect to see Rosen v. AIPAC to get to trial. Both sides have too much to lose and without any personal inside knowledge, I have a feeling that both sides would prefer to keep their secrets, well, secret. I expect the case will settle, although for far less than the $11 Million that Rosen is demanding in his complaint.
In the meantime, trial on the Government's case against Rosen and Weissman is scheduled to open on June 2. It's already been delayed for more than a year. My guess is it will eventually be voluntarily discontinued. One more nail in the secrecy policies of George W. Bush. I get the sense an Obama administration would rather that this case goes away. So once again, let it be said: they tried to kill us, we survived, let's eat.
Our story begins in August, 2004. when it was first reported that there was a spy in Washington delivering top military secret information to Israel. It turns out that there were three alleged spies, two employees of the lobbying group, AIPAC, an Israeli advocacy group based in Washington and a staffer from the Department of Defense.
Former AIPAC employees Steven Rosen and Keith Weissman were accused under the seldom used Espionage Act. The act's purpose is to prohibit Americans from taking classified information that could be used to harm the United States and giving it over to foreign governments. In Rosen and Weissman's case that were accused of meeting with Lawrence Franklin, a Department of Defense staffer, who gave Rosen and Weissman information about America's military, intelligence and defense strategy in dealing with Iran. Rosen and Weissman are accused of turning the information over to Israel.
At first AIPAC stood by their employees. According to Rosen, he even received a performance bonus in March 2005. However AIPAC was under heavy pressure from the feds. Their offices were raided and their records were subpoenaed. There was talk of an indictment against the organization and possibly they would even be charged as a foreign agent. AIPAC took the path of least resistance, they caved. In April, 2005 AIPAC fired Rosen and Weissman and issued a statement that they were fired because thier activities "did not comport with standards that AIPAC expects of all its employees.”
In the meantime Rosen has been fighting back on his own, and without the help of AIPAC, and winning round after round against the Federal Government. First, he won the right to call high government officials as witnesses at trial. Then it was ordered that the Government must answer information subpoenas regarding foreign policy strategy and directives. If the case ever gets to trial it is quite possible that Condoleeza Rice and Paul Wolfowitz will be required to give testimony under oath.
Most recently Rosen won an appeal requiring the Government to prove that any information passed was a "closely held secret." That creates a catch-22 for the government. How do you prove top-secret information in open court without exposing the secret? On the other hand part of the defense's argument is there was no information turned over that was really closely held. So far the government is reluctant to expose their case.
Like Megillat Esther, our story takes a detour. Charles Freeman, a former Saudi Ambassador was named earlier this year as the nominee designate for chairman of the National Intelligence Counsel. He seemed to be a sure-shot confrimation. Which would make him a chief advisor to President Obama. That was until Steven Rosen, independent of AIPAC and despite criticism from the usual suspects, pointed out that Freeman in his estimation was an Arab apoligist and an Israel basher. There is no doubt that he is a huge fan of Saudi Arabia and said of the Saudi King, "I believe King Abdullah is very rapidly becoming Abdullah the Great," Freeman vehemently critcizes Israel's policy in dealing with its Arab neighbors and the Palestinians. Freeman has even gone so far as to say that America's relationship with Israel was the main cause of the Al Queda Terrorist Acts on September 11, 2001.
Last week Freeman was not designated chairman but rather 'resigned.' But he wasn't content to 'resign' for the typical 'personal reasons.' He chose to elaborate, and as is typical with Israel haters, it was the fault of the Jews: Freeman wrote:
"The tactics of the Israel Lobby plumb the depths of dishonor and indecency and include character assassination, selective misquotation, the willful distortion of the record, the fabrication of falsehoods, and an utter disregard for the truth."
And Freeman son, Charels Freeman chimed in as well,
"His appointment is being challenged these days by a small cabal of folks that believe first and foremost in the importance of allegiance to Israel as a core U.S. priority. Putting aside my natural instinct as a son to want to punch some of these guys in the face for some of the things they are saying about my father, for heaven's sake, I'm more deeply angry about the lack of guile some of these people have."
Yes, a 'cabal' with 'guile' who show an 'allegiance to Israel', but mind you we are not talking about Jews. Just 'the Israel lobby.' The Freemans were apparently talking about those other supporters of Israel. To the Freemans' way of thinking, supporting Israel as a core U.S. priority disqualifies one from being 'objective' on America's role in the middle east. But blaming Israel for terrorist acts exclusively involving Arabs makes one the most appropriate candidate for the head of the National Intelligence. "And the Ten Sons of Haman were hung on the same gallows of their father" (Esther 9:7).
The main theme of Purim is that the Jews were able to turn their fate upside down. On March 2, 2009, less than a week before this year's celebration, Rosen made a stab at completing his personal exoneration. He filed suit against AIPAC to clear his name and accused the organization of doing the government's bidding. Rosen asserts that his actions were directed by AIPAC. He maintains that he provided his superiors with regular briefings about his efforts to gather information from government officials. He goes on to talk about AIPAC's information gathering techniques and its role in international diplomacy. He threatens full disclosure.
Truth be told, don't ever expect to see Rosen v. AIPAC to get to trial. Both sides have too much to lose and without any personal inside knowledge, I have a feeling that both sides would prefer to keep their secrets, well, secret. I expect the case will settle, although for far less than the $11 Million that Rosen is demanding in his complaint.
In the meantime, trial on the Government's case against Rosen and Weissman is scheduled to open on June 2. It's already been delayed for more than a year. My guess is it will eventually be voluntarily discontinued. One more nail in the secrecy policies of George W. Bush. I get the sense an Obama administration would rather that this case goes away. So once again, let it be said: they tried to kill us, we survived, let's eat.
Thursday, March 12, 2009
This One Goes to 11...The Tale of the Worst Man Ever to Live
So Bernie Madoff is off to the slammer. Go to jail, go directly to jail, do not pass go, do not collect $200. Well, he's already made off with the "go" money, that plus an estimated $64,999,999,800 according to the charges to which he pleaded guilty earlier today.
We won't have Bernie Madoff to kick around anymore. Jail isn't good enough. He's going to solitary...he's facing 150 years...he's going to rot. He's done. Elie Wiesel, the iconic Holocaust survivor, the author of 'Night' lost a reported $15.2 million through his foundation to Madoff. As a colleague Jonathan Fox put it "Stealing from Wiesel is like stealing from the Dalai Lama." If you believe in that sort of thing stealing from Elie Wiesel is your e-z pass to hell. Weisel called Madoff a "sociopath" who should spend the rest of his days staring at continuous slide projections of his victims.
We get it, Bernie Madoff is officially the worst man ever to live in the history of the world. He destroyed the economy of the western world. He has eliminated the New York Mets chances at a pennant run this season, by stealing from their owner Fred Wilpon, and he is a shonda for the goyim, even if the majority of his victims were fellow Jews.
And get this. It's all Bernie, it's all his fault, and only his fault. Everything! He was not charged with a conspiracy, so apparently no one else knew. $65-Billion and Bernie cooked the books all by himself. Not with the help of his wife who was busy mailing out millions of dollars in Chanukah gifts to friends and family (where can I get friends and family like that)? Not even his children who were shocked, shocked that their father's business, whom they were executives in, was not in reality a legitimate trading room. And not the employees of Bernard L. Madoff Investment Securities LLC , the 6th largest investment business in Wall Street prior to the end.
So now that we know how the story ends, the question remains, how could this have happened? I'm sure that tale will be told over the upcoming months if not years but you can start with the following principles:
1) THE SPINAL TAP PRINCIPLE: Most of Madoff's investors had no clue and no care what it was they were investing in. The genius was the simplicity. Those who understood the math, apparently could tell Madoff was cheating rather quickly. People like Harry Markopolos. Markopolos explained in a 60 Minutes interview that he figured out Madoff was cheating in "about 5 minutes." He tried to warn the SEC several times but they "just didn't care." There were others (I would bet more than we will ever know) who invested in Madoff because they assumed he was cheating. But most investors did not know what they were doing. They trusted Madoff, completely. We are talking about educated people, people who many assume were sophisticated wealthy financially involved people. But they did not know, even if they pretended they did. And Madoff thrived off of the ignorance. So long as the statements went out showing what it turns out were manufactured bogus huge profits, even in an impossible down market, these people were blissfully ignorant. They thought they were doing fine, they bought the investment because they liked the amp with the shiny dials. While other companies had standard amps, the madoff model went to 11.
2) THE BILLY JOEL PRINCIPLE: They say that Madoff would often tell people that they were not 'worth' his time . Although at the time of his arrest, Madoff's records indicated he had approximately 4,800 clients, each client felt that their access to Madoff was part of a secret fraternity; they were part of an exclusive club. Being with Madoff put you on the inside, and it felt good to be the big shot, the master of the world over all those other suckers . This was one of the strongest weapons Madoff had. Whenever one of Madoff's clients recommended him to a friend, a neighbor, a colleague, a business associate. Madoff was already vouched for and the new victim felt like he was in with the in crowd. At that point the sale was made and the scam could continue with fresh money.
3) THE IRVING BERLIN PRINCIPLE: When it comes down to it. Bernie Madoff represented the American dream. Child of immigrants. Grew up in middle class Queens. Product of public school. Worked hard, started a business and struck a fortune. He looked like your neighbor who made good. And people wanted to be with him, people wanted to be like him.
He personified what we are told from our first day in school. If you do well in school, if you work hard you can be anything you want. You can have anything you want. It doesn't matter who your parents are or how much money you grew up with. It doesn't matter what your race and religion is. Everything is up to you. God bless America.
Perhaps, in the end, admittedly with a pinch of cynicism and a dash of restrospect perhaps there is some truth to the Irving Berlin Principle. Bernie Madoff, if we think about it, maybe was just like us a little more than we'd like to admit. This nation is leveraged to the hilt. We have more debt than any of us can ever imagine, the real estate market has collapsed, the stock market is in free fall, the banking industry is being propped up, the auto business is on a respirator and the government seems powerless to fix any of it.
The program everyone points to as a model for the future is the New Deal. The iconic program from the New Deal is social security, which is essentially a nationwide ponzi scheme. Afterall, social security's model is that a current workforce pays for a former workforce's retirement. Take from present investors to pay for the past. It works so long as you have a fresh pool from which to draw. Once new money dries up the program collapses. If Madoff had found a new pool he could continue being the 'model philanthropist' that the conventional wisdom thought he was 6 months ago. Let's be clear, Madoff's acts were dispicable, hypocritical and awful. They are also a cautionary tale.
We won't have Bernie Madoff to kick around anymore. Jail isn't good enough. He's going to solitary...he's facing 150 years...he's going to rot. He's done. Elie Wiesel, the iconic Holocaust survivor, the author of 'Night' lost a reported $15.2 million through his foundation to Madoff. As a colleague Jonathan Fox put it "Stealing from Wiesel is like stealing from the Dalai Lama." If you believe in that sort of thing stealing from Elie Wiesel is your e-z pass to hell. Weisel called Madoff a "sociopath" who should spend the rest of his days staring at continuous slide projections of his victims.
We get it, Bernie Madoff is officially the worst man ever to live in the history of the world. He destroyed the economy of the western world. He has eliminated the New York Mets chances at a pennant run this season, by stealing from their owner Fred Wilpon, and he is a shonda for the goyim, even if the majority of his victims were fellow Jews.
And get this. It's all Bernie, it's all his fault, and only his fault. Everything! He was not charged with a conspiracy, so apparently no one else knew. $65-Billion and Bernie cooked the books all by himself. Not with the help of his wife who was busy mailing out millions of dollars in Chanukah gifts to friends and family (where can I get friends and family like that)? Not even his children who were shocked, shocked that their father's business, whom they were executives in, was not in reality a legitimate trading room. And not the employees of Bernard L. Madoff Investment Securities LLC , the 6th largest investment business in Wall Street prior to the end.
So now that we know how the story ends, the question remains, how could this have happened? I'm sure that tale will be told over the upcoming months if not years but you can start with the following principles:
1) THE SPINAL TAP PRINCIPLE: Most of Madoff's investors had no clue and no care what it was they were investing in. The genius was the simplicity. Those who understood the math, apparently could tell Madoff was cheating rather quickly. People like Harry Markopolos. Markopolos explained in a 60 Minutes interview that he figured out Madoff was cheating in "about 5 minutes." He tried to warn the SEC several times but they "just didn't care." There were others (I would bet more than we will ever know) who invested in Madoff because they assumed he was cheating. But most investors did not know what they were doing. They trusted Madoff, completely. We are talking about educated people, people who many assume were sophisticated wealthy financially involved people. But they did not know, even if they pretended they did. And Madoff thrived off of the ignorance. So long as the statements went out showing what it turns out were manufactured bogus huge profits, even in an impossible down market, these people were blissfully ignorant. They thought they were doing fine, they bought the investment because they liked the amp with the shiny dials. While other companies had standard amps, the madoff model went to 11.
2) THE BILLY JOEL PRINCIPLE: They say that Madoff would often tell people that they were not 'worth' his time . Although at the time of his arrest, Madoff's records indicated he had approximately 4,800 clients, each client felt that their access to Madoff was part of a secret fraternity; they were part of an exclusive club. Being with Madoff put you on the inside, and it felt good to be the big shot, the master of the world over all those other suckers . This was one of the strongest weapons Madoff had. Whenever one of Madoff's clients recommended him to a friend, a neighbor, a colleague, a business associate. Madoff was already vouched for and the new victim felt like he was in with the in crowd. At that point the sale was made and the scam could continue with fresh money.
3) THE IRVING BERLIN PRINCIPLE: When it comes down to it. Bernie Madoff represented the American dream. Child of immigrants. Grew up in middle class Queens. Product of public school. Worked hard, started a business and struck a fortune. He looked like your neighbor who made good. And people wanted to be with him, people wanted to be like him.
He personified what we are told from our first day in school. If you do well in school, if you work hard you can be anything you want. You can have anything you want. It doesn't matter who your parents are or how much money you grew up with. It doesn't matter what your race and religion is. Everything is up to you. God bless America.
Perhaps, in the end, admittedly with a pinch of cynicism and a dash of restrospect perhaps there is some truth to the Irving Berlin Principle. Bernie Madoff, if we think about it, maybe was just like us a little more than we'd like to admit. This nation is leveraged to the hilt. We have more debt than any of us can ever imagine, the real estate market has collapsed, the stock market is in free fall, the banking industry is being propped up, the auto business is on a respirator and the government seems powerless to fix any of it.
The program everyone points to as a model for the future is the New Deal. The iconic program from the New Deal is social security, which is essentially a nationwide ponzi scheme. Afterall, social security's model is that a current workforce pays for a former workforce's retirement. Take from present investors to pay for the past. It works so long as you have a fresh pool from which to draw. Once new money dries up the program collapses. If Madoff had found a new pool he could continue being the 'model philanthropist' that the conventional wisdom thought he was 6 months ago. Let's be clear, Madoff's acts were dispicable, hypocritical and awful. They are also a cautionary tale.
Monday, March 9, 2009
It's a Marvelous Morning(?) For a Moondance
I woke up this morning to darkness, as I will wake up tomorrow morning to darkness, and the next day and the day after that. Each morning during the work week for the next several weeks it'll be dark. This morning I looked towards the sky through my closet window and could clearly see the moon. Ah, the wonders of "Daylight Savings Time." The time of year where we 'spring' (winter?) forward to gain a manipulated hour of sunlight.
It is apocryphal that Benjamin Franklin is the father of the concept behind Daylight Savings Time (DST), however when the man most famous for flying a kite in a lightning storm (also probably apocryphal) wrote of shifiting the clock, it was a satire. (He talked about conservation of candlewax and taxing shutter makers). Aux auteurs du Journal" (in French). Journal de Paris (117)
DST was not instituted for the first time in the United States until 1918. It was repealed a year later and did not return until 1966. During the 1970's, during an energy crisis, it was proposed to institute DST year round, and in fact, in 1973 it was. However it soon became apparent that there was no benefit to dark winter mornings where the sun would sometimes, not appear, depending on the time of year till 9:00 A.M. or later.
Tomorrow sunrise in New York City is 7:17 A.M. Buses in school districts all across the region are already on route at that time. Many kids are waiting at bus stops in the dark, others are walking to school in the dark. Without the benefit of daylight, accidents are inevitable, as are criminal opportunities.
While the safety issue has always been of subordinate concern (although I'm not sure why that is or should be) to the goal of conservation, it is fanciful to believe that significant energy savings are occurring while it is still winter. While there is certainly a diminished need for electricity and fuel during daylight hours, in geographic locations where there are cool temperatures and people are waking up in the dark, the conservatory effects of DST are negated. Most people need to see and most people don't like to freeze.
While its dark, the morning commute begins. Headlights must be illuminated. In our cities and suburbs congestion is already forming. It's safe to assume that most people wake up at least 30 minutes before they start their commute. So as people are waking at 6 or 6:30, a time when a week ago there would have been natural sunlight (and will be again in about a month) , people are using more electricity and perhaps turning up the heat, in order to get out of bed and getting prepared for their day.
Energy saver? More like energy shifter. The energy that might have been consumed in the evening is now delayed an hour, but it is certainly used in the morning, in abundance. In fact a California study confirmed that Daylight Savings Time as currently implemented does not have a noticeable effect on conservation. Adrienne Kandel; Margaret Sheridan (2007-05-25) (PDF). The effect of early daylight saving time on California electricity consumption: a statistical analysis. CEC-200-2007-004. California Energy Commission. http://energy.ca.gov/2007publications/CEC-200-2007-004/CEC-200-2007-004.PDF. Retrieved on 2008-03-08.
Even Congress can't seem to ever make up its mind: First the clock shift in 1918, again in 1966. Then full year DST in 1973, followed by a return to 6 months and 6 moths in 1974. It stayed that way till 1987 when DST was extended from the end of April to the beginning and lasting until the end of October. In 2007 it was extended again. DST currently goes from the 2nd Sunday in March till the first Sunday in November. The time shift in 2007 wasn't even extensively debated. It was passed as a minor provision in a comprehensive piece of legislation. The Energy Policy Act of 2005. How can you debate policy when its titled 'Energy Reform'? Who wants to be labeled as anti-conservationist? Incidentally, the original draft was set to extend DST in 2007 all the way till Thanksgiving which would have plunged us back into darkness until mid-morning thoroughout November mornings.
As it stands now DST is the time for 8 months out of the year. In fact, perhaps the DST should be considered the new standard. How can a time be 'standard' when it is only used for 4 months?
Look, I love long days and early evening summer daylight as much as anyone and I love the idea of saving and conserving energy. DST certainly has its time. I just cannot believe that its goals are achieved when the thermometer is still barely cracking freezing and even the roosters haven't signaled the sunrise. I wouldn't mind sleeping an extra hour in the dark and if it means that it's unpleasant to go outside when I come home in the frigid evening, I'm willing to make the sacrifice... it would be a sacrifice that only would need to be extended for a few more weeks when it will be warmer anyway.
It is apocryphal that Benjamin Franklin is the father of the concept behind Daylight Savings Time (DST), however when the man most famous for flying a kite in a lightning storm (also probably apocryphal) wrote of shifiting the clock, it was a satire. (He talked about conservation of candlewax and taxing shutter makers). Aux auteurs du Journal" (in French). Journal de Paris (117)
DST was not instituted for the first time in the United States until 1918. It was repealed a year later and did not return until 1966. During the 1970's, during an energy crisis, it was proposed to institute DST year round, and in fact, in 1973 it was. However it soon became apparent that there was no benefit to dark winter mornings where the sun would sometimes, not appear, depending on the time of year till 9:00 A.M. or later.
Tomorrow sunrise in New York City is 7:17 A.M. Buses in school districts all across the region are already on route at that time. Many kids are waiting at bus stops in the dark, others are walking to school in the dark. Without the benefit of daylight, accidents are inevitable, as are criminal opportunities.
While the safety issue has always been of subordinate concern (although I'm not sure why that is or should be) to the goal of conservation, it is fanciful to believe that significant energy savings are occurring while it is still winter. While there is certainly a diminished need for electricity and fuel during daylight hours, in geographic locations where there are cool temperatures and people are waking up in the dark, the conservatory effects of DST are negated. Most people need to see and most people don't like to freeze.
While its dark, the morning commute begins. Headlights must be illuminated. In our cities and suburbs congestion is already forming. It's safe to assume that most people wake up at least 30 minutes before they start their commute. So as people are waking at 6 or 6:30, a time when a week ago there would have been natural sunlight (and will be again in about a month) , people are using more electricity and perhaps turning up the heat, in order to get out of bed and getting prepared for their day.
Energy saver? More like energy shifter. The energy that might have been consumed in the evening is now delayed an hour, but it is certainly used in the morning, in abundance. In fact a California study confirmed that Daylight Savings Time as currently implemented does not have a noticeable effect on conservation. Adrienne Kandel; Margaret Sheridan (2007-05-25) (PDF). The effect of early daylight saving time on California electricity consumption: a statistical analysis. CEC-200-2007-004. California Energy Commission. http://energy.ca.gov/2007publications/CEC-200-2007-004/CEC-200-2007-004.PDF. Retrieved on 2008-03-08.
Even Congress can't seem to ever make up its mind: First the clock shift in 1918, again in 1966. Then full year DST in 1973, followed by a return to 6 months and 6 moths in 1974. It stayed that way till 1987 when DST was extended from the end of April to the beginning and lasting until the end of October. In 2007 it was extended again. DST currently goes from the 2nd Sunday in March till the first Sunday in November. The time shift in 2007 wasn't even extensively debated. It was passed as a minor provision in a comprehensive piece of legislation. The Energy Policy Act of 2005. How can you debate policy when its titled 'Energy Reform'? Who wants to be labeled as anti-conservationist? Incidentally, the original draft was set to extend DST in 2007 all the way till Thanksgiving which would have plunged us back into darkness until mid-morning thoroughout November mornings.
As it stands now DST is the time for 8 months out of the year. In fact, perhaps the DST should be considered the new standard. How can a time be 'standard' when it is only used for 4 months?
Look, I love long days and early evening summer daylight as much as anyone and I love the idea of saving and conserving energy. DST certainly has its time. I just cannot believe that its goals are achieved when the thermometer is still barely cracking freezing and even the roosters haven't signaled the sunrise. I wouldn't mind sleeping an extra hour in the dark and if it means that it's unpleasant to go outside when I come home in the frigid evening, I'm willing to make the sacrifice... it would be a sacrifice that only would need to be extended for a few more weeks when it will be warmer anyway.
Friday, March 6, 2009
Is Mazoltuv's luck running out?
The tale of Dr. Mazoltuv Borukhova is turning into a tragedy straight out of Shakespeare, or perhaps Law and Order.
Her name, literally 'good luck, woman of blessings' is growing more ironic by the day. Dr. Borukhova, a specialist in internal medicine, is an Uzbek immigrant living in Queens. She married Daniel Malakov, himself an Uzbek immigrant. They had a child in 2003. Somewhere along the way the marriage broke down and in 2005; they divorced. The break up was bitter and as typical, the mom got primary physical custody and the father visitation.
But for whatever reason Borukhova did not want the child with her ex-husband. She had interfered with his visitation schedule and in a seemingly punitive move, Judge Sidney Strauss awarded temporary custody of his daughter to Dr. Malakov. The child did not want to go. The scene was videotaped by Boruknova: it showed a child crying, screaming, clinging to her mom. Borukhova persuaded her daughter to let go, assuring her, "You're going to stay there a few days and I will take you back."
Less than a month later, Malakov and Borukhova met in a Forest Hills playground to transfer their daughter to her mother for visitation. Suddenly Malakov was shot 3 times, he died on the pavement as his estranged wife administered CPR.
Borukhova, proclaiming her religious nature, denied involvement in her husband murder immdiately. She continues to maintain her innocence while on trial this week. Who knows what the jury is thinking but it seems to me that her defenses and justifications are growing more strained by the day.
1) Phone records indicate she spoke to a relative living in Atlanta, Mikhail Mallayev, approximately 65 times during the weeks leading to the murder, but only twice on the week of the killing, after $20,000 had been deposited into a bank account in his name. Mallayev is accused of pulling the trigger. Dr. Borukhova claims that the conversations were relating to a heart condition Mallayev's wife was having.
2) In the weeks prior to the murder Mallayev and his wife came to New York. His presence in New York, Borukova claimed was so that she could do an EKG of her heart. However the EKG showed a time stamp of August 21, 2006. Borukhova tried to explain that the EKG machine had not bet set with the accurate time but prosecutors were able to show that other EKGs she had performed accurately reflected her appointment book relating to other patients' visits.
3) Borukova flew to Atlanta and met Mallayev in the weeks before the murder. She claims she went because Mallayev was a builder and she wanted to build a house in the Atlanta area. Prosecutors then showed that the property she was allegedly buying already had a house on the lot.
4) Finally yesterday she said she didn't hear or see any shots eventhough by her own testimony she was standing 'shoulder to shoulder' to her husband and prosecutors pointed out that police officers standing 2 blocks away heard the shots.
Although Borukhova's overriding defense, that she was not, and could not be involved in murder because she is too religious, anyone familiar with the story of Yehudit will instantly realize that this absolute defense is specious. http://www.tsel.org/torah/yehudit/eindex.html. Judaism is generally peaceful, but it is not pacifist. And even a devout woman, who may truly believe she is protecting her daughter, can act out in violent calculating fashion.
The final sad piece of the puzzle is what of the daughter? There are no happy endings here. The girl's father is dead, and her mother is likely going to jail. Even if somehow, her mother gets off, as the girl grows older she will assuredly have doubts in her mind regarding her mother's innocence and although in time, the story will fade from the headlines, the destruction of the little girl's innocence will never be repaired.
Her name, literally 'good luck, woman of blessings' is growing more ironic by the day. Dr. Borukhova, a specialist in internal medicine, is an Uzbek immigrant living in Queens. She married Daniel Malakov, himself an Uzbek immigrant. They had a child in 2003. Somewhere along the way the marriage broke down and in 2005; they divorced. The break up was bitter and as typical, the mom got primary physical custody and the father visitation.
But for whatever reason Borukhova did not want the child with her ex-husband. She had interfered with his visitation schedule and in a seemingly punitive move, Judge Sidney Strauss awarded temporary custody of his daughter to Dr. Malakov. The child did not want to go. The scene was videotaped by Boruknova: it showed a child crying, screaming, clinging to her mom. Borukhova persuaded her daughter to let go, assuring her, "You're going to stay there a few days and I will take you back."
Less than a month later, Malakov and Borukhova met in a Forest Hills playground to transfer their daughter to her mother for visitation. Suddenly Malakov was shot 3 times, he died on the pavement as his estranged wife administered CPR.
Borukhova, proclaiming her religious nature, denied involvement in her husband murder immdiately. She continues to maintain her innocence while on trial this week. Who knows what the jury is thinking but it seems to me that her defenses and justifications are growing more strained by the day.
1) Phone records indicate she spoke to a relative living in Atlanta, Mikhail Mallayev, approximately 65 times during the weeks leading to the murder, but only twice on the week of the killing, after $20,000 had been deposited into a bank account in his name. Mallayev is accused of pulling the trigger. Dr. Borukhova claims that the conversations were relating to a heart condition Mallayev's wife was having.
2) In the weeks prior to the murder Mallayev and his wife came to New York. His presence in New York, Borukova claimed was so that she could do an EKG of her heart. However the EKG showed a time stamp of August 21, 2006. Borukhova tried to explain that the EKG machine had not bet set with the accurate time but prosecutors were able to show that other EKGs she had performed accurately reflected her appointment book relating to other patients' visits.
3) Borukova flew to Atlanta and met Mallayev in the weeks before the murder. She claims she went because Mallayev was a builder and she wanted to build a house in the Atlanta area. Prosecutors then showed that the property she was allegedly buying already had a house on the lot.
4) Finally yesterday she said she didn't hear or see any shots eventhough by her own testimony she was standing 'shoulder to shoulder' to her husband and prosecutors pointed out that police officers standing 2 blocks away heard the shots.
Although Borukhova's overriding defense, that she was not, and could not be involved in murder because she is too religious, anyone familiar with the story of Yehudit will instantly realize that this absolute defense is specious. http://www.tsel.org/torah/yehudit/eindex.html. Judaism is generally peaceful, but it is not pacifist. And even a devout woman, who may truly believe she is protecting her daughter, can act out in violent calculating fashion.
The final sad piece of the puzzle is what of the daughter? There are no happy endings here. The girl's father is dead, and her mother is likely going to jail. Even if somehow, her mother gets off, as the girl grows older she will assuredly have doubts in her mind regarding her mother's innocence and although in time, the story will fade from the headlines, the destruction of the little girl's innocence will never be repaired.
Thursday, March 5, 2009
Please Allow Me To Introduce Myself
I'm new to the world of blogging so it may take me awhile to find "my voice." My goal is to inform, but with a bit of bite. I get politics, but I am not overly political, I hope to entertain, but also to discuss, perhaps to leave something to think about.
I'm a lawyer by profession, but a writer and storyteller by desire. I won't go through my credentials, if curious, you can check out my website: www.nylawyer.vpweb.com I work in New York and New Jersey, the states in which I am licensed. I'm kind of a throw-back kind of barrister. I like to deal with how pieces inter-connect. I couldn't come to work each day if I was dealing with one arcane subsection, of one clause, of one statute each day, every day, day in and day out. That holds no interest for me. I like helping people, families, businesses and when I have a successful outcome, my day is made. The fact that I deal with many areas of law has exposed me to a multitude of situations, and this is from where I plan to mine my material.
While I plan to deal mostly with legal issues, I reserve license to veer into other matters of interest. Well, at least interest to me. I want your feedback, your questions, comments, feedback and critiques. The more I get the more lively this forum can be, I think.
So without further introduction lets get to today's docket:
Leading off, this week the Supreme Court decided that drug manufacturers can be liable for the failure to adequately warn about the harm caused by their drugs. http://www.nytimes.com/2009/03/05/washington/05scotus.html?_r=1&ref=us (Wyeth v. Levine)
The background of the case involves a woman, Diana Levine, a pianist, who suffered from migranes. She was prescribed an anti-nausea drug, Phenergan. It was not an issue that the drug was safe when administered properly, through an IV drip. The problem is that when the drug comes in contact with blood flowing from the heart, it can cause gangrene. This is more likely to occur if the drug is injected, which it was in Levine's case. After developing gangrene due to the misadministration of the drug she had to have part of her right arm amputated. End of career. Levine sued in Vermont and was awarded $6 million.
Wyeth appealed on the grounds that States shouldn't have the right to dictate warning labels because the FDA has jurisdiction and it would be unduly burdensome for drugs to have different warnings in different states. Of course, nothing stopped Wyeth from having one warning in all states saying that the drug should not be injected, but no matter. Suffice to say the Supreme Court found in Levine's favor 6-3.
While the result is interesting, I think it's of secondary importance. What's more important is the result is an affirmation that Balance of Powers still works:
For the past 10 years businesses in general and drug companies in particular have been, I think it's fair to say, at war with the judicial branch. Insurance Companies, Drug Companies, Business Groups even the American Medical Association have been talking up "run away juries" and "tort-reform", They have sought "caps on pain and suffering" -- also known as caps on "non-monetary damage." Their main avenue has been contributions to the Republican party which has acquiesced by installing "strict-constructionist" judges, or as they put it judges who "interpret the law" rather than "make up the law." Cute. Who can argue against judges that are merely administering pre-ordained decisions? I suppose the opposite of strict constructionist judges are judges that seek justice, but I digress.
Interestingly 2 of the 3 justices in the minority were appointed by George W. Bush: Samuel Alito and Chief Justice John Roberts. Yet, despite the push the majority of the Supreme Court pushed back; it held that drug companies are responsible to people and must adequately warn. To that I say amen. Antonin Scalia, the captain of Strict Construction played this off by stating the axiom "hard cases make bad law." In this case, they don't. The case is only hard if you make it hard, and the result is fair, in my opinion you can call it justice, and an affirmation of the judicial process.
Is it possible this decision indicates the tide has turned philosophically? Possibly. In another matter reported today, the New York State Assembly voted 96-46 on Wednesday to return discretion to judges in possession and sale of narcotics laws, Currently New York, does not allow judges to consider individual circumstances in drug cases. The result is that 38% of the current jail population in New York is in jail for a drug related offense, and many of those are for first-time felonies with no history of violent conduct. The laws are commony referred to as the "Rockerfeller Laws."
As if on cue, the usual groups. they usually call themselves 'law and order' organizations, are grousing that reform will put "the bad guys back on the street." But the reality is, if the bad guys are smoking pot and have been doing so, now into the third-generation since the laws were supposed to put a stop to it once and for all, it's time to try something new. Now that New York's Senate is in control of the Democrats for only the 2nd year, out of the past 70, there is a chance the law might change. At the very least this is a legislative party considering the role of the judiciary. A positive circumstance, as opposed to the usual knee jerk "tough-on-crime" harrumph usually used by candidates in election cycles.
Don't get me wrong the Possession laws have not been changed, and may never be. But the debate is on. What is the role of judges? What creates a just society? Are we safer by just locking up anyone who may 'cross the line' regardless of circumstances? Are we better off letting judges...judge, or by implementing a code handed to them by lawmakers elected by a Democratic population? Where the debate settles, is unknown, perhaps unknowable. Just the fact that we are talking is, I believe, a good sign.
I'm a lawyer by profession, but a writer and storyteller by desire. I won't go through my credentials, if curious, you can check out my website: www.nylawyer.vpweb.com I work in New York and New Jersey, the states in which I am licensed. I'm kind of a throw-back kind of barrister. I like to deal with how pieces inter-connect. I couldn't come to work each day if I was dealing with one arcane subsection, of one clause, of one statute each day, every day, day in and day out. That holds no interest for me. I like helping people, families, businesses and when I have a successful outcome, my day is made. The fact that I deal with many areas of law has exposed me to a multitude of situations, and this is from where I plan to mine my material.
While I plan to deal mostly with legal issues, I reserve license to veer into other matters of interest. Well, at least interest to me. I want your feedback, your questions, comments, feedback and critiques. The more I get the more lively this forum can be, I think.
So without further introduction lets get to today's docket:
Leading off, this week the Supreme Court decided that drug manufacturers can be liable for the failure to adequately warn about the harm caused by their drugs. http://www.nytimes.com/2009/03/05/washington/05scotus.html?_r=1&ref=us (Wyeth v. Levine)
The background of the case involves a woman, Diana Levine, a pianist, who suffered from migranes. She was prescribed an anti-nausea drug, Phenergan. It was not an issue that the drug was safe when administered properly, through an IV drip. The problem is that when the drug comes in contact with blood flowing from the heart, it can cause gangrene. This is more likely to occur if the drug is injected, which it was in Levine's case. After developing gangrene due to the misadministration of the drug she had to have part of her right arm amputated. End of career. Levine sued in Vermont and was awarded $6 million.
Wyeth appealed on the grounds that States shouldn't have the right to dictate warning labels because the FDA has jurisdiction and it would be unduly burdensome for drugs to have different warnings in different states. Of course, nothing stopped Wyeth from having one warning in all states saying that the drug should not be injected, but no matter. Suffice to say the Supreme Court found in Levine's favor 6-3.
While the result is interesting, I think it's of secondary importance. What's more important is the result is an affirmation that Balance of Powers still works:
For the past 10 years businesses in general and drug companies in particular have been, I think it's fair to say, at war with the judicial branch. Insurance Companies, Drug Companies, Business Groups even the American Medical Association have been talking up "run away juries" and "tort-reform", They have sought "caps on pain and suffering" -- also known as caps on "non-monetary damage." Their main avenue has been contributions to the Republican party which has acquiesced by installing "strict-constructionist" judges, or as they put it judges who "interpret the law" rather than "make up the law." Cute. Who can argue against judges that are merely administering pre-ordained decisions? I suppose the opposite of strict constructionist judges are judges that seek justice, but I digress.
Interestingly 2 of the 3 justices in the minority were appointed by George W. Bush: Samuel Alito and Chief Justice John Roberts. Yet, despite the push the majority of the Supreme Court pushed back; it held that drug companies are responsible to people and must adequately warn. To that I say amen. Antonin Scalia, the captain of Strict Construction played this off by stating the axiom "hard cases make bad law." In this case, they don't. The case is only hard if you make it hard, and the result is fair, in my opinion you can call it justice, and an affirmation of the judicial process.
Is it possible this decision indicates the tide has turned philosophically? Possibly. In another matter reported today, the New York State Assembly voted 96-46 on Wednesday to return discretion to judges in possession and sale of narcotics laws, Currently New York, does not allow judges to consider individual circumstances in drug cases. The result is that 38% of the current jail population in New York is in jail for a drug related offense, and many of those are for first-time felonies with no history of violent conduct. The laws are commony referred to as the "Rockerfeller Laws."
As if on cue, the usual groups. they usually call themselves 'law and order' organizations, are grousing that reform will put "the bad guys back on the street." But the reality is, if the bad guys are smoking pot and have been doing so, now into the third-generation since the laws were supposed to put a stop to it once and for all, it's time to try something new. Now that New York's Senate is in control of the Democrats for only the 2nd year, out of the past 70, there is a chance the law might change. At the very least this is a legislative party considering the role of the judiciary. A positive circumstance, as opposed to the usual knee jerk "tough-on-crime" harrumph usually used by candidates in election cycles.
Don't get me wrong the Possession laws have not been changed, and may never be. But the debate is on. What is the role of judges? What creates a just society? Are we safer by just locking up anyone who may 'cross the line' regardless of circumstances? Are we better off letting judges...judge, or by implementing a code handed to them by lawmakers elected by a Democratic population? Where the debate settles, is unknown, perhaps unknowable. Just the fact that we are talking is, I believe, a good sign.
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