For the GOP, it's 1967 all over again

GOP Senators on the Judiciary Committee, bereft of any meaningful criticism of Solicitor General Elena Kagan, have given up attacking her. Instead, they've chosen an easier target - Thurgood Marshall.

The GOP goes after Thurgood Marshall

Posted to The Week by Danny on June 29, 2010

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Wow, just wow.

Here's what I wish Kagan's response had been:

Senators Sessions, Kyl, and Grassley, with all due respect, if I am not worthy of confirmation because I am too much like former Justice Thurgood Marshall, then I would rather not be confirmed. I am honored to be associated with him, though I know that I do not deserve to be. If confirmed, I will do my best to live up to the standards he set, with the hope of someday deserving that association.

It's like it's 1967 all over again. Apparently, still smarting from the passage of the Civil Rights Act of 1964, the 2010 GOP has decided to revisit the confirmation of Justice Marshall. Perhaps it is in honor of the passing of Sen. Robert Byrd, one of the 11 Senators to vote against Marshall's confirmation.

Perhaps Mitch McConnell should give Trent Lott a call and ask him to reprise his 2002 speech honoring Strom Thurmond and saying that if he'd been elected President "we wouldn't have had all of these problems over the years, either." After all, Sen. Thurmond also voted against Thurgood Marshall's confirmation back in 1967. On second thought, that might be a bad idea. Trent Lott might start asking uncomfortable questions like "explain to me how I lost my leadership position by being nice to an old guy, while these chowderheads get away with this stuff?"

Follow me on Twitter @aaronklemz

The stain of injustice

Further update: In an editorial on July 1st, the Star Tribune called for the grant of a new trial for Kuoa Fong Lee.

Update: Susan Gaertner says no evidence of unintended acceleration. But of course, that isn’t true.

o  O  o

I’ve written three posts about Kuoa Fong Lee and the treatment he got at the hands of Susan Gaertner and the Ramsey County Attorney’s office.

Pay no attention to the man behind the curtain
Not Gaertner’s finest hour, and yesterday,
Comes now the prosecutor

What is the job of a county attorney or any prosecutor? Lock up everyone s/he can? Well, obviously not. Here’s just the briefest description of a prosecutor’s role from Dallas AUSA Shane Read:

[T]he prosecutor’s role is not to get a conviction at all costs, but to seek justice so that no innocent person is wrongfully convicted.

He’s writing for America.gov, the State Department’s website about American life and culture for an international audience.
If you’ve read Not Gaertner’s finest hour, you may recall that I cited the example of Robert Morgenthau, a courageous — and legendary — D.A. in New York who moved to have the convictions of six young black men set aside (not merely that they be retried) for the brutal rape and near killing of the Central Park jogger, when new and exculpatory evidence arose.

Unlike Gaertner, who, when confronted with new exculpatory evidence, found experts who offer a buffet of speculative explanations as to why the new evidence was “not inconsistent with” the conviction. This is odious and miserable dissembling, and it is “inconsistent with” the role of a prosecutor.

This is of interest to all of us — not merely Kuoa Fong Lee who is rotting away in a prison cell — because the office of a public prosecutor is a powerful one, and it’s a role easily abused, especially by the politically ambitious.

The prosecutor acts on our behalf, and the stain of an injustice by a prosecutor is a stain on us all.

Technorati Tags: role of a prosecutor,America.gov,Susan Gaertner,Robert Morgenthau,Central Park jogger,unindended acceleration

Comes now the prosecutor

With a new expert.

Kuoa Fong Lee, who got eight years for a rear-end accident, petitioned for a new trial, and his new lawyer submitted the report of an expert who did more than have the brakes inspected at Midas. The case has been in the news many times, both since the accident and since Lee petitioned for a new trial. You could go here or here for summaries of the case here on the Stool.

The expert, Richard Dusek, found that the

"accelerator-to-engine-throttle cable and pulley system does not move freely, stays stuck and does not return to idle position." He said the throttle and cruise-control mechanisms were initially stuck together at the start of the inspection, which could have contributed to the failure of the release of the gas pedal to slow the engine.

In the first of the posts linked above, I mentioned there was also evidence that the brakes were being applied at the time of the collision.

Now, Susan Gaertner and the Ramsey County Attorney’s office has new experts, too, by golly. They really slam the cell door shut on Kuoa Fong Lee! Well, not really.

Neither the prosecution's experts nor an expert brought in by Toyota to observe the inspection dispute two other reports released previously that show Lee was, in fact, stepping on the brake, based on the condition of the brake lamp filaments.

But they appear careful to parse the issue.

"The damage sustained by the left brake lamp filament does not indicate how long before the impact the brakes had been applied... the brakes may have been applied very late in the scenario," Sonye wrote.

Or, he continued, "The deceleration forces resulting from the first collision (with the Oldsmobile) caused the brake pedal to move forward sufficiently to turn on the brake lights."

Bartlett [one of the new prosecution experts] agreed that the brake lamp circuit was "energized." [that means “on”] But, he wrote, that "does not indicate whether the driver's foot was on the brake and pressing intentionally, or the pedal was actuated by some other means, such as movement resulting from the collision ... or inadvertent contact by the operator's leg." [or maybe God pressed on the brake, but got there too late to do any good!] [italics are mine]

"It's almost embarrassing," Schafer [Lee’s new lawyer] said Monday. "It's like these guys got together and said, 'How else can we explain this?' I almost fell out of my chair when I saw that."

Bartlett is also — not coincidentally — on record as a sudden acceleration “denier.”

Shorter prosecution: “Lee was pressing on the accelerator. What, he was pressing on the brake? Okay, he was pressing on the brake, but he didn’t mean it.”

It cannot be said often enough that the prosecutors said unequivocally at trial that Lee (shown here in a Pioneer Press photo holding his little daughter while he talked to police about the accident) was not braking at the time of the accident, but that he was accelerating to upwards of 72 to 92 miles per hour.

There was a famous, and now deceased, trial lawyer named Louis Nizer. He had a rule — that he made up, I think, but it works — that he called the “rule of probability.” Here’s an exposition of the rule from an old newspaper article in the Modesto Bee:

There is another term for this: common sense.

A man is driving home in the middle of the day from church with his family, including the little daughter in the picture. No alcohol involved, but in an act of homicidal wantonness [meaning he was indifferent as to the outcome], he drives up the off ramp and accelerates and rams the car in front of him.

That is the prosecution’s theory of the case.

Unless you think that as an Asian, Lee doesn’t value human life the way we Caucasian people do, it’s an unbelievable stretch.

Now, the Gaertner gang has found experts who will speculate on theories that are “not inconsistent with” the conviction. They are just trying to explain away facts that a jury ought to at least hear. A competent defense lawyer could make reasonable doubt out of the prosecution’s own experts.

It would not surprise me that if a new trial is granted, the prosecutors won’t ever bother to retry Lee.

It really is time for the bullshit to stop.

Technorati Tags: Kuoa Fong Lee,Susan Gaertner,Phil Carruthers,new trial,Toyota,Louis Nizer,rule of probability

Sinking in the Holy See

Update: Here’ an article in the NYT online today: Church Office Failed to Act on Abuse Scandal. The piece prominently features then Cardinal Ratzinger, now the Pope. The photo is from the article. The failure of the Vatican to act will be examined more closely as a result of the Supreme Court action (or rather inaction) described in the post.

o  O  o

I’ve had two recent posts about the efforts of the Vatican to avoid responsibility for sexually-abusive priests in the United States:

Pig Latin (respondeat superior)

And, on top of that, it’s good to be King (sovereign immunity)

The United States Supreme Court has denied a petition for a writ of certiorari to hear the Vatican’s appeal of a federal circuit court’s denial of the claim of sovereign immunity. This is in the National Catholic Reporter today:

John V. Doe was allegedly abused multiple times in 1965, when he was a minor, by Father Andrew Ronan, in Portland, Oregon. Before Portland, Father Ronan was caught by Catholic Church officials sexually molesting seminarians in Ireland and children in Chicago. John V. Doe brought suit against the Servites, a religious order, and the Holy See, which is the head of the Catholic Church. [italics are mine]

The claims against the Holy See included vicarious liability for the acts of its instrumentalities and domestic corporations, respondeat superior for the actions of Ronan as an alleged employee of the Holy See, and direct liability based on the Holy See’s own negligence in retention and supervision of Ronan, and its failure to warn of his harmful propensities. In response, the Holy See claimed sovereign immunity from suit under the FSIA [Foreign Sovereign Immunities Act] and moved the court to dismiss the case.

The district court denied the motion to dismiss and the 9th Circuit Court of Appeals also denied the Holy See’s motion. As a result, the Holy See petitioned the U.S. Supreme Court to hear the case on appeal. Today’s action denies the petition and therefore allows the case to move to discovery and trial in the United States District Court for the District of Oregon.

The implication of the refusal to grant the writ is enormous. It is the falling of the citadel. It compares in importance to the first time a tobacco company lost a trial. Remember when R.J. Reynolds seemed invincible, too?

In addition to the prospect of substantial damage awards against it, and perhaps more important, is the airing of the Catholic church hierarchy’s dirty laundry on this issue. (It ain’t called “discovery” for nothing.) The church’s ability to make moral pronouncements — to pontificate, so to speak — on a variety of topics is going to take a hit.

You have to wonder, though, whether the “we’ve got a Pope” stove in the Vatican will be pressed into service for another use.

A thump of the tail to Spot’s friend Jack for the link to the article.

Technorati Tags: Holy See,Vatican,respondeat superior,Foreign Sovereign Immunities Act

Charlie Shrugged

Charlie Weaver in the Star Tribune today:

If we increase the burden on the moneyed class, we will extinguish it, and who then will look after the serfs or give alms to the poor?

That’s a paraphrase. Weaver is responding to Mark Dayton’s op-ed piece, also in today’s paper, stating that the wealthy in the state can afford to pay more in taxes:

I believe it's wrong that the richest Minnesotans pay a smaller share of their incomes in state and local taxes than the rest of the state. It's unfair, and it costs us the money we need to reduce our state's budget deficit and to invest in the educations of our children.

Gov. Tim Pawlenty has protected the rich from paying their fair share of taxes, and the results are chronic budget deficits, drastic cuts in funding for education and other essential services, and increased property taxes.

Dayton stakes out the moral position, and Weaver endeavors to rebut it with the same trickle down patent medicine that Republican hucksters have been selling out of horse-drawn paneled wagons for years.

Weaver is a proponent of The Law of Comparative Shitholes which states:

It is an iron law of economics that given a choice between two shitholes, the wealthy will always flee to the larger one.

Here’s Weaver again:

For the state of Minnesota, which is competing for jobs and business investment in a mobile, global economy, it's [raising the top marginal rate on the personal income tax] exactly the wrong message at exactly the wrong time.

I have to ask, Charlie, if taxes are the key, why isn’t business in Bangladesh or Somalia red hot? Or why Canada’s economy, having higher tax rates than the US in general, is doing rather well (and better than ours):

The report by the International Monetary Fund (IMF) Mission on Canada acknowledges that Canada's economy has outpaced those of many of the major industrialized countries. The report points out that Canada has solid economic fundamentals and a "sound policy framework" that positions the Government to weather future economic challenges.

The economies in New York, Massachusetts, and yes, Minnesota, outperform Mississippi, Arizona, and many other tax Shangri Las you could mention, by a wide margin, in terms of median per capita income.

Weaver’s condition is a form of economic autism. He is so caught up in the “rational actor” (well, “man,” but I’m being ecumenical) theory of human behavior that he cannot observe the real world examples staring him right in the face.

This may be because Weaver is so unempathetic, so self absorbed, and so consumed with avarice himself that he doesn’t understand that there are other people who operate on a different set of principles.

But it is a mistake to permit people of Weaver’s limited vision to set the agenda in Minnesota. It is the road — so to speak — to ruin; most of us drive the road to ruin to work every day.

To Weaver and his fellow travelers, taxes paid are just money down a rat hole. But public investments make it possible for all of us to live more pleasantly and safely, and Charlie, believe it or not, they make it easier for people to make money.

Adequate transportation, public utilities, an educated workforce, and a world class research university, inter alia, are all things that contribute to the success of the moneyed class; it is how most of them got there.

One could pick on Weaver’s sky-is-falling arithmetic, or point out that taxes paid to the state of Minnesota are deductible from one’s federal income. Or, one might point out that taxes are low in the shitholes at least partly because it’s the only way to get people to come and live in them.

But these are distractions. We’ve listened to the pikers and scrubs like Charlie Weaver, Tim Pawlenty, and Tom Emmer and the “no new taxes” mantra far too long. We’ve dug a hole ten years in the making, and Charlie just wants us to keep digging. Knaves and blackguards, every one of them.

The graphic is a Star Tribune illustration from Mark Dayton’s op-ed.

Technorati Tags: Charlie Weaver,Tim Pawlenty,Tom Emmer,Mark Dayton

RIP Katherine Kersten

The world as we knew it has come to an end

It is Spot’s sad duty to report that Katherine Kersten has been sacked.

It sure seems that way, anyway. All of the posts on her blog at the Strib? Vanished. Any reference to her as a columnist there? Ditto.

Katie was last seen laying an enormous egg about two Sundays ago in a column that I commented on in a post entitled Lusting after the mitre and ermine.

In that column, Kersten entirely mischaracterized the writing of Professor Richard Flory of USC, and apparently did so based on plagiarizing from, perhaps inter alia, Fr. John Neuhaus, Marvin Olasky, and the Discovery Institute (at least that’s where the smart money is).

Professor Flory, in fact, wrote a comment to my post protesting what I had written; based on the fact that I had taken Kersten at her word, he was justified in being put out with ol’ Spot.  I had intended to write a follow up post and apologize to the professor, but now I’ll just combine it with this death notice.

Kersten may be gone, but it is going to take a while for the Strib to live her down.

A thump of the tail to MNO, who is the only crewmember here to notice the satisfying lifting of a weight from our shoulders.

Technorati Tags: Katherine Kersten,Star Tribune newspaper,Richard Flory,Fr. John Neuhaus,Marvin Olasky,the Discovery Institute,laying an egg,sacked,fired

Drinking Liberally (6/24)

It looks like we’ll have a warm and agreeable evening for DL at the 331 Club in Northeast Minneapolis tonight. We’ll probably be outside, from six to nine or so. You can stop by anytime.

Technorati Tags: Drinking Liberally,331 Club

What if we treated businesses like schools?

In his column yesterday, Jon Tevlin reports his impressions of an education forum attended by some of the candidates for governor that took place on Tuesday. Rob Hahn, the unpleasant IP candidate (that’s as close as Tom Horner is ever going to get to an endorsement from Spot) is said to have whined, Why can’t we treat a school like a business?

You hear claptrap like this all the time, but schools are not businesses. They are organized for an entirely different purpose: educating student to, inter alia, become participating citizens in a democracy, and not merely Plato’s “obedient mob.” You cannot measure education the way you measure profit, although NCLB pretends you can, with predictably horrific results.

But I thought it might be instructive to turn the paradigm around and ask, Why can’t we treat a business like a school?

After all, most business “entities” are just that: legal constructs that owe their very existence to a government enabling act.

If the Legislature hadn’t provided for them, there wouldn’t be corporations or limited liability companies with all the attendant powers of raising capital, buying and owning property, hiring employees, and, very importantly, limiting the liability of the shareholders of the corporation to the amount they have invested, that is, no personal liability for the shareholders for deeds of the corporation.

Businesses use the state’s infrastructure. In some ways are harder on it than individual citizens; they benefit from fire and police protection, and they are big users of the court system and sheriffs to enforce contracts and debts.

We tolerate them — nay, encourage them — because they provide employment. In fact, business says it's our most attractive feature!

If we enable and encourage business because it provides employment, don’t we have some right to expect that it does a decent and equitable job of it? Of course. That’s why this article in the Strib is so troubling:

Blacks are more than three times as likely to be unemployed as whites in the Twin Cities, giving the area the worst racial disparity in unemployment among the country's largest cities, according to a new study released this week.

Unemployment among blacks was 20.4 percent, second highest in the United States behind Detroit, compared with 6.6 percent among whites, which ranked the Twin Cities 36th among the 50 areas surveyed.

"Even if blacks had the exact same educational profile as whites in Minneapolis, they would still have a much higher unemployment rate," said the study from the Economic Policy Institute, a Washington, D.C., think tank that focuses on conditions for working class Americans.

What if lawmakers looked at the employment “gap” the same way they want to look at the education “gap?” If we borrowed the NCLB rules, we’d sack the CEO and the rest of the management, break up the corporation and sell the pieces to others who claimed they could close the gap.

Seems fair.

The Economic Policy Institute and academics like Professor Myron Orfield — whom I have cited a lot; just put his name in the search box — will tell you it is segregation that creates the gap, not the teachers.

Until lawmakers get that through their thick heads, we’ll never close either the education or the employment gap.

Technorati Tags: segregation,Economic Policy Institute,Myron Orfield,education gap,employment gap

Minnesota Incandescent Light Bulb Freedom Act

Because Tom Emmer is finally being revealed for the constitutional idiot and litigious scrub that he is, I am going to repost this, originally published on the Stool on March 17th of this year. The Minnesota Incandescent Light Bulb Freedom Act is, of course, one of Tom Emmer’s bright ideas.

o O o

A few years into the future:

[click] Farnsworth? Get down here. I have a case for you.

Is that you, G?

Of course it’s me; who else would it be?

I don’t know; I just got here a few days ago.

Farnsworth, the newest and greenest assistant in the AG's office, can hardly believe it. He thought it would be weeks before he even saw the AG in the hallway. But to be called to the AG’s office this soon!

Hi, G, you said you’ve got a case for me?

Yes, come in and sit down.

Well, who am I up against?

The Commerce Clause of the United States Constitution.

I beg your pardon?

That’s right, you weren’t here when the Minnesota Light Bulb Freedom Act was passed. A few years ago, the Legislature passed a law to say that Minnesota could produce and sell incandescent light bulbs even after they were supposed to be phased out by federal law. Well, some fools have been making them, and the Justice Department wants to shut them down. Since it involves the invalidation of a state law, we have to intervene.

Oh, now I get it. The Commerce Clause, which authorizes the federal government to regulate interstate commerce, is the section of the Constitution relied on by the Congress for the Energy Independence and Security Act, sort of like the Clean Water Act, the creation of the EPA, and so on. This, um, doesn’t sound like a winner, does it?

Well, the bright lights — so to speak — at the Leege said to the feds when they passed the statue, “If you got a lawsuit, bring it on.” And now they have.

I’m flattered, G, but don’t you think this case needs someone with more experience?

Why? The result will be exactly the same. As it is, this will be an expensive enough fiasco for the taxpayer. You’re the cheapest one I’ve got.

But G!

It’s called taking one for the team, Farnsworth.

[shoulders sagging, Farnsworth gets up to leave] All right, G.

And Farnsworth —

Yes, G?

Godspeed.

The photo is from the Strib.

Update: You might also enjoy Governor Emmer, federals are massing at the border.

Technorati Tags: Tom Emmer,incandescent light bulbs,Commerce Clause

What would George Orwell think of iCollege?

Most of you have heard about Governor Gutshot’s idea to replace colleges and universities with a complex web of tubes to just pipe learning into the heads of “students.” Just like as (excuse me; that was a regrettable lapse) Dairy Queen pumps soft serve ice cream into empty cones.

Tim Pawlenty calls it “iCollege,” but the royalties on that would probably exceed any cost savings he imagines. Here’s a little of what John Croman of KARE television wrote about Pawlenty’s description of his idea when he appeared on the Daily Show:

"It wasn't as funny as Daily Show usually is," University of Minnesota political science professor Kathryn Pearson told KARE, "But, nonetheless, I think he portrayed himself as a credible presidential candidate and he stayed on message."

She said he may have taken a hit with college professors around the nation, however, by promoting the notion of replacing traditional college courses with "iCollege" courses that could be downloaded on a portable device, such as an iPhone or iPad.

This would not have seemed like such a hot idea to Plato or Socrates:

In his final self-defense, Plato’s Socrates says that like a gadfly who attaches himself to a horse to sting it, so he attaches himself to the young minds of his polis. In another dialogue, Meno, Socrates is compared to a stingray who strikes his target, numbing it. Both of these passages are puzzling at first reading, but his meaning is plain enough. The stinging may indeed leave its target bewildered, feeling helpless and ignorant, but Socrates wants to provoke: he craves a response, a sign of life, a contradiction, proof of intellectual activity. The essence of the Socratic method, so much beloved by law professors, lies in this–an education that consists of rote learning produces docile products that may serve the interests of the state but are not likely to seek to make society any better than they found it. An education that trains the mind to question, to think critically, also has the potential to advance society, transforming it into something better. Plato’s Socrates challenges his students to describe what they have observed, to expose what they “know,” and to examine the premises of their knowledge. [italics are mine]

That’s Scott Horton, writing on his blog No Comment.

You can put ice cream in the cone, but you can’t make it think. That’s perhaps pushing the metaphor a little far, but it isn’t any sillier than the notion that you can authentically replace the challenge of sitting in a college classroom and interacting with the professor and other students with a telephone.

To me, iCollege is Orwellian. A recent study made the troubling assessment that modern college students are already less empathetic than the generations before. Here’s one of the reasons:

According to one of the lead researchers, Ed O’Brien, “It’s harder for today’s college student to empathize with others because so much of their social lives is done through a computer and not through real life interaction.”

In his Daily Show appearance, Pawlenty apparently joked about college students not wanting to get off their “keisters” (it always makes him feel naughty and hip when he uses that word) and go to class.

If all you want is a cadre of unthinking and uncaring Deltas (careful, don’t trip over the stray Huxley reference), perhaps iCollege is just the ticket, but if you want democracy to be more than just an obedient mob — again, Plato’s words — you’ll shop elsewhere.

UPDATE: Now Pawlenty says he only means iCollege as a supplement to college, not a replacement for it but Rachel Stassen Berger seems skeptical. So am I. Here’s what he said originally on the Daily Show:

Do you really think in 20 years somebody's going to put on their backpack, drive a half hour to the University of Minnesota from the suburbs, haul their keister across campus, and sit and listen to some boring person drone on about Econ 101 or Spanish 101?

Technorati Tags: iCollege,Governor Gutshot,Tim Pawlenty,Daily Show,keesters,George Orwell,Plato,Socrates,distance learning,empathy

Foreclosures One Area Where Emmer has "Detailed" Plans

Tom Emmer has represented a Minnesota House district (19B) that includes areas of the Twin Cities exurbs hit hardest by the foreclosure crisis, Including eastern Wright and southeastern Sherburne counties and the cities of Otsego, St. Michael, Albertville and Delano. Both Wright and Sherburne counties have yearly foreclosure rates in 2008 and 2009 exceeding 2%; Emmer's district is at the epicenter of the foreclosure crisis in Minnesota. You would think that he would take this issue seriously.

Of course not. When it comes to reducing foreclosures, when your only tool is a machete, every problem looks like a jungle! In this clip from the Minnesota News Council gubernatorial debate in January you can witness Tom Emmer's response to the question - "Minnesota has experienced 76,000 foreclosures since 2006. What can state government do to address housing concerns, specifically?"



Here's his conclusion, and the extent of his substantive "solution" to the massive wave of foreclosures across Minnesota:

"Let's reduce the size of government, redesign it, let's reduce the cost of doing business in the state, so we keep our jobs and start attracting new jobs."

In recent days, Stonewall Emmer's been, well, stonewalling on the details of this "reduce and redesign" project, and every time he gives details, he gets them wrong. Perhaps the most egregious example was his assertion that by eliminating the Minnesota Housing Finance Agency he could save Minnesotans $1.6 billion! Wow, if that we're true, I might even support it! But alas:

During a debate in March, Emmer said the state could save a lot of money if the Minnesota Housing Finance Agency were eliminated. "If you get rid of the Minnesota Housing Finance Agency, ladies and gentlemen, and move it to a rent subsidies thing, that's a $1.6 billion item," he said. But that calculcation is wrong, according to Tim Marx, who ran the Housing Finance Agency under Gov. Tim Pawlenty from 2003-2008. Marx said less than 10 percent of the agency's budget comes from state tax dollars. The other funds come from selling bonds to the private market, the federal government, or from borrowing money at one rate and lending it at another.

Marx said the agency doesn't use state money to employ staff or rent office space. Instead, the $84 million in state taxpayer funds spent on the agency is dedicated to affordable housing. "The agency is self-supporting, and the appropriations that the agency receives do not go to the operations of the agency," Marx said. Emmer also said he doesn't understand why the state is involved in using public money to compete with private businesses. But Marx and Jim Solem, who ran the agency from 1978-1994, said the Housing Finance Agency's mission is to provide housing help to those who can't get it from the private market. Solem also said the state would be faced with multiple lawsuits if the agency were completely shut down.

"The agency has pledged to those bond holders and folks who have invested in Minnesota that it will be a good steward of their money, and will actively work to make certain they get repaid," Solem said. "So the agency has to be in business for as long as those bonds are outstanding, or the bond holders would sue the state of Minnesota and probably win."

Well, at least Emmer would understand being sued. And he was only wrong on the amount saved by nearly a factor of 20, but that's just accountant speak, and he's not running for State Accountant.

Even more offensive than Emmer's apparent inability to understand what state agencies do or how much they actually spend is that one of the very few examples he actually gives of how to save money is an agency working to prevent the foreclosures plaguing his district. One program that is partially supported by state grants is Minnesota Home Ownership Center, which in 2009 prevented 536 foreclosures in Wright and Sherburne counties, and 8,339 foreclosures statewide. This represented a savings to Minnesota of over $600 million in 2009 alone.

Stonewall Emmer's not being very forthcoming about what his grand plans are that will allow him to "easily" cut 20% from the state budget. But every little detail that he does release demonstrates his lack of understanding of what state government does, and what it accomplishes. Going after MHFA is particularly reckless, considering that it is one of the agencies that nearly pays for itself, provides needed access to housing finance that the private market can't or won't, and is working with a network of government agencies and nonprofits to help prevent foreclosures. That's the way government is supposed to work. But to Stonewall Emmer, that's the problem, not the solution.

Follow me on Twitter @aaronklemz

He has a secret plan to end the war, too

There are advantages to being, well, older. Not many, but there are a few. Like remembering another stonewalling politician from a generation ago, but I’ll get to that in a moment.

In recent days, Stonewall Emmer has whined about the media asking him pesky questions about the state’s budget and the big deficit we face. Not gonna go there, says Stonewall. I’m not running for State Accountant.

This presents two possibilities: Stonewall has no idea what to do with the budget, or he does, and he knows that people aren’t going to like it.

It puts me in mind of Richard Nixon in advance of the 1968 election when he said he had a secret plan to end the Vietnam war, but that he couldn’t tell us what it was. The Vietnam war dragged on for several more years after Nixon was elected; he really didn’t have much of a plan to end it. What he did plan to do, though, was try to cut off the Ho Chi Minh trail by an illegal bombing campaign in Cambodia that played a role in the rise of Khmer Rouge.

The nickname “Stonewall” is revealing itself as more and more inspired all the time.

Technorati Tags: Tom Emmer,Stonewall Emmer,Richard Nixon,Ho Chi Minh trail,Khmer Rouge,Vietnam war

Profiles in Freedom(TM): The Freedom to Kill Others With Secondhand Smoke

A statewide smoking ban in Minnesota is a dangerous constitutional precedent. If the new regime wants the ban to pass, it very likely will pass. But we should at least call it what it is as we plummet further into the nanny-state formerly known as Minnesota. [. . .] The first law on the DFL legislative agenda is a statewide smoking ban. The real issue is much larger. The real issue is how far we are willing to let government rules erode our freedom.

-Tom Emmer, Letter to the Editor, St. Cloud Times, 12/26/06

(Image from banthebanminnesota.com)

The passage of the Freedom to Breathe Act, which banned smoking in bars and restaurants statewide, is yet another example of an oppressive anti-Freedom(TM) policy that Stonewall Emmer opposes. It's worth examining in some detail, since at the time it was debated in 2006-2007, a number of dire predictions about the creeping fascism that would result were bandied about the Capitol. Many of these predictions came from the mouths of Stonewall and his campaign manager, Rep. Buesgens. Lucky for all of us, the "regulatory engineers" haven't subsequently turned their sights on restricting speech, religious expression, using genetics to dictate who can reproduce, or telling farmers what they must plant - all predictions that Emmer made in that op-ed. This is the problem with slippery slope fallacies - the act that begins the slide does not lead to the "hellish" end result, and the specter of the "hell" at the end of the slope is nothing more than an appeal to fear. Like restrictions on teen drivers and mandatory seat belt laws, banning smoking in public places is sound public health policy, now the law of the land in 26 states.

I think that illustrating the cost of the Freedom(TM) that Stonewall Tom would bring us if elected is important. I've had enough with the bumper sticker slogans about freedom and individual responsibility from his campaign - when the rubber hits the road, Emmer is willing to let the practice of Freedom(TM) by "sovereign individuals" kill and injure innocent bystanders. The problem with libertarian thought generally, and Tom Emmer's thought process specifically, is that the collateral damage from the practice of Freedom(TM) is none of their concern. The Freedom(TM) to smoke at a bar or restaurant runs up against the right of workers to work in a safe environment where they are not exposed to second-hand smoke. But what do these workers know? They must hate Freedom(TM)!



It's absolutely crucial to put Tom Emmer's crusade for Freedom(TM) in specific contexts, to be able to explain concisely that the choice is not between Freedom(TM) and totalitarianism, but rather between whateverthehelliwannado and reasonable community standards. His opposition to the Freedom to Breathe Act provides a vehicle to do exactly that. And the bonus is that the smoking ban is enormously popular, and most popular among Republicans.



September 2008 poll conducted by Decision Resources Ltd. for Clearway Minnesota

So, go on, ask Stonewall Emmer if he plans on repealing the smoking ban if he's elected! After all, he's received the full-throated endorsement of "Ban the Ban Minnesota," an organization devoted to overturning the Freedom to Breathe Act. Emmer's described as "one of our greatest supporters" and ban opponents feel they have a "good shot" to elect a "governor who will fight to remove or alter the destructive smoking ban from Minnesota's lawbooks."

It's not news that Tom Emmer opposed the smoking ban, and the endorsement from Ban the Ban Minnesota was made in February. The key here is developing clear examples of exactly what Freedom(TM) means for Tom Emmer.

For Tom Emmer, Freedom(TM) means the freedom to kill and injure others with secondhand smoke.

Pining for Stephen A. Douglas

Here are the opening words of Stephen A. Douglas (one of Lincoln’s three opponents in the 1860 election and a windbag of epic proportions; remind you of anyone?) writing in the September 1859 issue of Harper’s Magazine:

UNDER our complex system of government it is the first duty of American statesmen to mark distinctly the dividing line between Federal and Local Authority. To do this with accuracy involves an inquiry, not only into the powers and duties of the Federal Government under the Constitution, but also into the rights, privileges, and immunities of the people of the Territories, as well as of the States composing the Union.

He sounds like a Tea Partier, doesn’t he? Just like Stonewall Emmer, Mike Parry, Michele Bachmann and the whole bunch.

But you don’t need to read much further in the article — Douglas does reel off a nineteen page diatribe, but you don’t need to read all of it, by any means — to see what Douglas’ constitutional tut-tutting is really all about:

The political organization which was formed in 1854, and has assumed the name of the Republican Party, is based on the theory that African slavery, as it exists in this country is an evil of such magnitude-social, moral; and political-as to justify and require the exertion of the entire power and influence of the Federal Government to the full extent that the Constitution, according to their interpretation, will permit for its ultimate extinction.

*  *  *

Thus it will be seen, that under the auspices of a political party, which claims sovereignty in Congress over the subject of slavery, there can be no peace on the slavery question-no truce in the sectional strife-no fraternity between the North and South, so long as this Union remains as our fathers made it-divided into free and slave States, with the right on the part of each to retain slavery so long as it chooses, and to abolish it whenever it pleases [that is, never].

(Douglas was addressing, in part, the issue of the power of the federal government to prohibit slavery in the Territories of the United States.)

Douglas cannot imagine a federal government with the power to right such a monumental outrage as slavery. He shakes his head sadly at the loss of freedom — and never mind the valuable property — that would be suffered by white slave owners if the Peculiar Institution was abolished, or indeed stunted from flourishing in the territorial possessions of the United States.

Just as Stonewall Emmer cannot imagine the idea of the loss to his “personal freedom” if some of his tax money goes to help insure that people don’t die in the streets from lack of health care. But the “I don’t care if people die in the streets because of lack of health care” frame seems, well, a little heartless; it has to be dressed up in the Constitution before it can be taken out on display.

But make no mistake: the Tea Party fanciers differ in degree but not in essential kind to the slavery apologists like their windy pal Stephen A. Douglas.

Technorati Tags: Stephen A. Douglas,Harper's Magazine,slavery,Stonewall Emmer,Tea Party,Mike Parry,Michele Bachmann

Wisdom teeth get impacted

Elections get affected. Somebody didn’t meet AYP this year:

Freshman Republican Rep. Erik Paulsen recently jumped into the ever-growing crowd of representatives with political action committees designed to support other candidates. His is called "ICE PAC," which stands for "Impacting Crucial Elections."

The grammar section anyway.

Technorati Tags: Erik Paulsen,grammar,ICE PAC

Show us your papers

This should have a little resonance with people who are afraid of turning local police into immigration agents:

The Fugitive Slave Act of 1850 imposed a fine ($1,000) on law enforcement personnel who refrained from detaining runaway slaves. They were directed to do that on the basis of a claimant’s sworn statement only; there was no hearing or trial for the person who was claimed to be someone’s property.

Arizona’s new immigration law provides:

G.  A PERSON MAY BRING AN ACTION IN SUPERIOR COURT TO CHALLENGE ANY OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE THAT ADOPTS OR IMPLEMENTS A POLICY THAT LIMITS OR RESTRICTS THE ENFORCEMENT OF FEDERAL IMMIGRATION LAWS TO LESS THAN THE FULL EXTENT PERMITTED BY FEDERAL LAW.  IF THERE IS A JUDICIAL FINDING THAT AN ENTITY HAS VIOLATED THIS SECTION, THE COURT SHALL ORDER ANY OF THE FOLLOWING:
1.  THAT THE PERSON WHO BROUGHT THE ACTION RECOVER COURT COSTS AND ATTORNEY FEES.
2.  THAT THE ENTITY PAY A CIVIL PENALTY OF NOT LESS THAN ONE THOUSAND DOLLARS AND NOT MORE THAN FIVE THOUSAND DOLLARS FOR EACH DAY THAT THE POLICY HAS REMAINED IN EFFECT AFTER THE FILING OF AN ACTION PURSUANT TO THIS SUBSECTION.

One must assume that you can “implement” a proscribed policy (the statute says “adopts or implements;” you have to conclude they mean different things) by merely being insufficiently zealous in rounding up brown people on “reasonable suspicion.”

Just as the Fugitive Slave Act, the new Arizona law will encourage police forces to err on the side of detaining people — whether they are really detainable or not — to avoid penalty to themselves.

You may be sure there will be anti-immigrant groups watching for the chance to bring suit under this law, just as slave owners and their agents were looking for Northern policemen and federal marshals to accuse of a lack of vigilance under the Fugitive Slave Act.

And remember, everybody, the Arizona statute is the law that Stonewall Emmer said was a wonderful first step.

The image is from the Wikipedia article on the Fugitive Slave Act.

Technorati Tags: Arizona immigration law,SB1070,Fugitive Slave Act of 1850,civil penalties

Profiles in Freedom(TM): The Freedom to Drive and Die

Stonewall Emmer talks a good game about Freedom(TM) from oppressive govmint regulations. And despite his assertions of being an outsider to the political process, his six-year career in the Minnesota Legislature gives shape and definition to what Freedom(TM) means to him. I mean, just look at all of the oppressive laws he's voted against!

This Spring, there was a terrible amount of carnage on the roads involving young drivers, the most extreme example a head-on collision involving a car full of teenagers. Six lives were lost in this accident. The driver had received her provisional license three weeks before the accident, was in violation of the terms of that license, which prohibited driving after midnight and having more than one teenage passenger. These restrictions were adopted by the Minnesota Legislature in 2008. Not that Stonewall Emmer thought it was a good idea - he voted against these restrictions. His campaign manager (Rep. Mark Buesgens) agreed: speaking on the floor of "the long arm of state government taking the rightful role of parents."

And this, ladies and gentleman, is what Freedom(TM) looks like.


It's true that this accident occurred despite of the passage of the graduated license provisions in 2008. It's a graphic and sobering reminder of the consequences of careless disregard of a law that is reducing the number of teenage driver crashes. Studies in other states also indicate this is an effective approach, and that stronger penalties and heightened enforcement adds to their effectiveness. In the wake of the April crashes, some legislators suggested doing more, such as adding stricter penalties or increasing the nighttime restrictions on teen driving. But as the Star Tribune noted, it took twenty years to get any new restrictions on teen driving passed - thanks to the thought process of people like Emmer and Buesgens, who think that teenage driving is exclusively a parenting issue. The family members of the other drivers involved in these crashes might think it is a public safety issue, but what do they know? They must hate Freedom(TM)!

The same thought process applies for Stonewall Emmer when it comes to primary seatbelt laws. We know that seat belts save lives, we know that primary seat belt laws increase the use of seat belts. But dammit, says Emmer, this is just another example of the govmint telling me what to do! It's part of his Tenther schtick - the federal government has no business attaching conditions to federal money that require states to adopt seat belt laws.

Stonewall Emmer's version of Freedom(TM) relies on a paranoid fantasy of a creeping fascism that starts with telling 16 year olds that they shouldn't drive between midnight and 5 A.M. and ends with Stalin's gulags. But on a practical level, what he sees as restrictions on personal freedom are sound public policies that are saving lives. And the adoption of common-sense traffic safety measures, including .08 BAC DUI laws, primary seat belt laws, and graduated license provisions for teen drivers resulted in a 2009 road death toll that was the lowest in recent memory. No thanks to Tom Emmer, who voted against nearly every one of these life-saving changes in the name of Freedom(TM).

Follow me on Twitter @aaronklemz

Tom “Jefferson Jackson” Emmer

Update: There is a winner in the “new name for Emmer” contest, and it’s not Tom “Jefferson Jackson” Emmer, but simply “Stonewall Emmer.” Rather than change this post however, it will just be adopted henceforth.

o  O  o

It is hard to imagine anything less probable than a Tom Emmer “listening” tour. It would be like a listening tour undertaken by Elmer Gantry. The bombastic, evangelical Emmer has never listened to anybody in the Legislature, so it’s a good bet he isn’t going to actually listen to anyone on the stump, either.

Emmer’s specialty is ramming stuff down people’s throats, and then tamping it down with the handle of a hockey stick.

Let’s take, for example, Emmer’s idea that Minnesota should, for all practical intents, secede from the Union. It’s a crazed, crackpot idea, like something that might have been attributed to Berzelius "Buzz" Windrip in the Sinclair novel It Can’t Happen Here.

We’ve been watching the Tenth Amendment antics of Tom Emmer for some time here at the Cucking Stool. For those of you who need to catch up on your reading, I recommend these posts:

The Minnesota Incandescent Lightbulb Freedom Act

In which Rep. Emmer gets a civics lesson

Governor Emmer, the federals are massing at the border

Speaking of dim bulbs

More bon bons from Tenther Tom

And most recently:

A new name for Emmer

I really expected Tom “Jefferson Jackson” Emmer to walk away from his “secession on the installment plan” once he got the endorsement for the Republicans. But his appointment of Mark Buesgens as his campaign manager and his op-ed in the Sunday Star Tribune shows that he going the full crazy route all the way until November.

J.J. Emmer claims that he is channeling the “Founding Fathers” in championing an amendment to the Minnesota Constitution that would make adherence to federal law optional. And like every bug-eyed crazy in the Tea Party, he recites the Preamble to the U.S. Constitution in support of his position.

It’s just too bad that J.J. never read the rest of the document. Fortunately, David Lillehaug, on the other hand, like the authors here at the Stool, has.

I am already weary of writing why J.J. Emmer is such a painful gasbag that I commend the list of links above or David Lillehaug’s piece, also in the Strib Sunday, if you need an explanation. But I will say this.

This is from Emmer’s proposed amendment:

"Citizens of Minnesota are sovereign individuals, subject to Minnesota law and immune from any federal laws that exceed the federal government's enumerated constitutional powers. A federal law does not apply in Minnesota unless that law is approved by a two-thirds vote of the members of each house of the Legislature and is signed by the governor ..."

FROM AN AMENDMENT TO THE MINNESOTA CONSTITUTION PROPOSED IN H.F. 3738, LEGISLATION COAUTHORED BY GUBERNATORIAL CANDIDATE TOM EMMER.

And here are the two opening paragraphs of the Mississippi Secession Resolution:

Whereas, The Constitutional Union was formed by the several States in their separate soverign [sic] capacity for the purpose of mutual advantage and protection;

That the several States are distinct sovereignities [sic] [written by an early Tea Partier, no doubt], whose supremacy is limited so far only as the same has been delegated by voluntary compact to a Federal Government, and when it fails to accomplish the ends for which it was established, the parties to the compact have the right to resume, each State for itself, such delegated powers;

Tom “Jefferson Jackson” Emmer is in great company here.

And it’s not like these guys have thought this through. Senator Mike Parry, one of Emmer’s febrile supporters and a carrier — and I mean that in the most communicable disease kind of way — of Emmer’s bill in the Minnesota Senate was asked (by me) about the implications of Emmer’s proposal for the civil rights laws of the United States. Watch for his reaction.

If a single member of a minority community votes for these drooling idiots, well then God bless you, because you’re going to need it.

Ken Avidor provided the graphic.

Technorati Tags: Tom Emmer,Tom "Jefferson Jackson" Emmer,nullification,Tenth Amendment,Mike Parry,Mark Buesgens,civil rights laws,David Lillehaug,Mississippi Secession Resolution

A new name for Emmer

Rarely does one put up a post saying that a candidate is “a foolish man pandering to foolish voters,” and offer Exhibit A of why, and then have the candidate publish Exhibit B the very next day. In the state’s largest newspaper, and over his own signature, no less. (I will write more about Emmer’s op-ed in the Strib soon; well, I did.)

But Tom Emmer seems committed to the quixotic path — like any other febrile nut in history willing to urge his supporters to mass humiliation, privation, starvation, or suicide — of prying a gem, the North Star, out of the crown of the United States.

There will be much speculation about the intellectual fountains that have watered Emmer’s brain: punitive parenting, vicious preschool playmates, a history teacher who inspired Emmer with tales of daring do in the old Confederacy, satanic fraternity initiation rituals, or maybe missing key lectures in constitutional law in law school.

Or maybe like Athena, he sprang, fully formed, from the forehead of Zeus.

But it doesn’t really matter; we are still left with the task of describing him. And that is where Spot needs your help. I’ve called him “Tenther Tom,” but that seems awfully derivative of “Tenther Tim.”

Help me think of a new and fresh name that has some historical and constitutional resonance, yet captures some of the Yosemite Sam charm of the man. Leave your suggestions in the comments; remember, it’s a family blog.

Time is short.

UPDATE: Ken Avidor contributes a great graphic to the effort to find a new nickname for Emmer. Extra points if you can identify the provenance of the original portrait.

FURTHER UPDATE: Don’t miss the follow up post Tom “Jefferson Jackson” Emmer.

Technorati Tags: Tom Emmer,Tenth Amendment,nullification,Yosemite Sam,Althena,Zeus,Tenther Tim

More bon bons from Tenther Tom

The evidence of Tom Emmer’s antagonism to being a citizen of the United States just keep growing. Already legend are his Minnesota Incandescent Light Bulb Freedom Act bill, and his bill to amend the state’s constitution to make the application of federal law optional in Minnesota. I even imagined the consequences of that one, if it came to pass.

Jeff Rosenberg mentions another one this week. The bill is actually called the Minnesota Firearms Freedom Act. A central provision:

A personal firearm, a firearm accessory, or ammunition that is manufactured commercially or privately in Minnesota and that remains within the boundaries of the state of Minnesota is not subject to federal law or federal regulation, including registration, under the authority of Congress to regulate interstate commerce. It is declared by the legislature that those items have not traveled in interstate commerce.

The idea that a state legislature can unilaterally declare that something is not interstate commerce is ludicrous. But let’s consider it for a moment.

According to Tenther Tom, if somebody makes a gun in Minnesota and sells it to a Minnesotan, it is none of the federal government’s business.

But what if the Minnesotan sells the guns to somebody outside Minnesota? Some Minnesotan like Paul Giovanni de la Rosa? He’s the state resident, one of the few Matador Alumni Association members living in the state, who bought guns at various gun shops in Minnesota and smuggled them into Mexico for use by the drug cartels — who are, not coincidentally, the suppliers of probably most of the illegal drugs sold in the United States. The violence from the cartels is reaching unprecedented levels.

Not our problem, says Tenther Tom.

If not for the federal system of gun sale registration, ATF and the FBI would not have been able to catch de la Rosa. We can change our facts just a little bit and have de la Rosa selling guns to criminal gangs in Illinois, or New York, or even in Minnesota, and the resources of the federal government wouldn’t be available to stop it.

The interstate movement of guns is a serious problem in the United States, and Emmer’s bill is an unserious approach to the issue.

Tom Emmer is a foolish man pandering to foolish voters.

Technorati Tags: Tom Emmer,Paul Giovanni de la Rosa,Matador Alumni Association,Minnesota Firearms Freedom Act,interstate commerce

Not Gaertner’s finest hour

I wrote yesterday in Pay no attention to the man behind the curtain about the case of Kuoa Fong Lee, the Hmong immigrant who was convicted of vehicular homicide, and who received an eight year sentence for an accident that probably wasn’t his fault, much less his crime.

A new defense expert has found that the throttle cable on Lee’s Toyota Camry was sticky and that it could well have caused the conditions in which Lee was unable to stop his car, even when he applied the brakes.

Lee says that is what happened; he’s maintained that all along. The Ramsey County attorney told the jury that Lee hit the accelerator instead of the brake, but that now appears impossible.

Ramsey County Attorney Susan Gaertner says that the new evidence “is not inconsistent with” Lee’s conviction. But of course it is, and it flies in the face of everything the prosecutors told the jury.

Instead of owning up to even the possibility that it convicted an innocent man, the Ramsey County Attorney’s office, and Susan Gaertner herself, have gone into the full defense mode.

I said in the previous post on the subject that I would describe the action of a truly legendary prosecutor when faced with new evidence that had the potential to embarrass the prosecutor’s office. That prosecutor is Robert Morgenthau, who has been either the U.S. Attorney or the D.A. for New York County for literally decades.

He retired recently, and there was an extensive retrospective of his career in the ABA Journal. Here’s an anecdote from the article:

Manhattan is sometimes as much cauldron as melting pot, and [Robert] Morgenthau’s office prosecuted criminal cases that churned in the city’s tabloids as well as in national headlines. In 1990 five black males under age 16 were convicted of raping and nearly killing a woman known as the “Central Park jogger.” But the final headlines in the case would have made Morgenthau’s mentor [Robert L. Patterson] proud—and perhaps would be too shameful for many other prosecutors.

After the teens had served between six and eight years each behind bars, another man confessed to the crime in 2002. DNA evidence bore out his claim. Amid calls to overturn the convictions, the New York Police Department dug in its heels, as did some current and former prosecutors in the DA’s office, including the one who had prosecuted the cases.

Morgenthau moved to have the convictions set aside. And they were.

“I think it was his finest hour,” says Barry Scheck, co-founder and director of the Innocence Project, which promotes the use of DNA evidence to reverse erroneous convictions. “Very few DAs would have done that, but he could with his stature, self-confidence, guts and commitment to principle. In that and other cases I’ve seen, I believe he has asked, ‘Is this the right thing to do?’ ” [italics are mine]

“[S]tature, self-confidence, guts and commitment to principle” are all elements that are glaringly absent here. There are differences in the cases, of course; no one claims that somebody else was driving Lee’s car.

But there are similarities, too. In both cases, a prosecutor is presented with a reality that is different than the one that the prosecutor’s office presented to a jury in obtaining a conviction. Robert Morgenthau takes one course; Susan Gaertner takes another.

Which one, do you think, is the better example of fidelity to the trust invested in a public prosecutor?

As Robert Morgenthau demonstrates, the job of the D.A. — the County Attorney — is not just to obtain and defend convictions. It is to see after the administration of justice. Justice can be an elusive principle, more difficult to obtain than simple convictions.

But it is the difference between a functionary like Susan Gaertner and the real thing like Robert Morgenthau.

Technorati Tags: Kuoa Fong Lee,Susan Gaertner,Ramsey County Attorney's Office,Robert Morgenthau,new evidence,the Wizard of Oz

Pay no attention to the man behind the curtain

Kuoa Fong Lee was sentenced to eight years in prison for vehicular homicide. He was involved in a rear end accident while driving his family home from church one Sunday about four years ago. Three people died (two immediately and one later) in the in the collision when Lee’s car traveled up the freeway off ramp, traveling as police estimated, between 72 and 92 miles per hour, and hit the car in front of him.

Lee said that he had pressed on his brakes, but nothing happened. The prosecution’s expert at trial (the guy in charge of supervising the oil changes for St. Paul police cruisers, if memory serves) said, “Nah, the brakes are fine.”

So the prosecution’s theory of the case is — and I am paraphrasing here — this guy just got off the boat; he must have been pressing on the accelerator instead of the brake. What a dope. And look at the dead people! [accompanied by lots of grisly pictures] You can go the link above to read more about the prosecution’s theory of the case.

Did I mention that he was driving a Toyota Camry?

Kuoa Fong Lee has a new lawyer, and in light of all the news about unintended acceleration and throttle sticking in some Toyota models, the Camry in particular, he had some additional examination of Lee’s car undertaken.

And guess what?

The expert, Richard Dusek, found that the

"accelerator-to-engine-throttle cable and pulley system does not move freely, stays stuck and does not return to idle position." He said the throttle and cruise-control mechanisms were initially stuck together at the start of the inspection, which could have contributed to the failure of the release of the gas pedal to slow the engine.

There is also evidence, apparently not presented to the jury, that the brake lights were on when the collision occurred.

Ramsey County Attorney Susan Gaertner’s reaction to this is summarized in an email she sent to the media:

In an e-mailed statement to the media Wednesday summarizing her stand in the case, Gaertner said, "The fact that Mr. Lee may have braked before the crash is not inconsistent with the facts that led to his conviction, as he was convicted of gross negligence for failing to stop his vehicle and avoid the collision."

“Not inconsistent with,” that’s a key phrase here. She didn’t write “consistent with,” because remember, it was the prosecution’s theory that Lee was just a dumb immigrant who didn’t know how to drive and hit the wrong pedal.

But he did apply the brakes. And the model of the car he was driving has some history of unintended acceleration:

Lee's car was not equipped with electronic throttle controls that have been a focus in Toyota acceleration discussions. His Camry had a traditional gas pedal that controlled the throttle mechanically with a cable.

But some 1996 Camrys also were recalled for acceleration issues. Shortly after the new models hit the market, Toyota recalled 5,145 of them for cruise control equipment that failed "to hold the speed set by the driver, and can accelerate above the intended set speed."

Sean Kane, president of Safety Research & Strategies, a company which does research for trial lawyers, says he's struggled for a long time to get the public to believe that sudden acceleration is a real problem.

"People have been uniformly dismissed by law enforcement, government, the automakers," he says. "The consumer voice has been tamped down by everybody. But for the first time now, it's being taken seriously."

If “not inconsistent with” does not mean “consistent with,” what does it mean? What Gaertner means is “ignore it.” Pay no attention to the man behind the curtain, in other words. Like Dorothy, however, once you see the man behind the curtain, you’d can’t ignore him.

The evidence is entirely contrary to — actually “inconsistent with” — the prosecution’s theory of the case, a theory that it sold to a jury, and a theory for which Kuoa Fong Lee got eight years.

All Susan Gaertner is doing now is obfuscting and dissembling about what seems by all accounts a manifest injustice. Even some of the jurors think Lee should be released, knowing what they do now. (I cannot find the link to the Channel 9 website at the moment.)

This case is blot on the reputation of the Ramsey County Attorney’s Office; one that becomes more indelible with each passing day.

In the next day or so, I’ll tell the story of how a legendary prosecutor acted in another controversial case of new evidence.

Update: The evidence is entirely consistent with the story that Kuoa Fong Lee has maintained from the moment of the accident.

Further update: Here is a follow up post: Not Gaertner’s finest hour.

Yet another update: Mark Gislason links to an article in The Corpus Christi Caller Times about attorney Bob Hilliard who is working on Lee’s case with Lee’s new Minnesota attorney Brent Schafer.

Technorati Tags: Kuoa Fong Lee,The Wizard of Oz,Susan Gaertner

A new mic for Mike

Last night at the Groveland Tap, some of the volunteers and friends of The Uptake got together to mingle, but to recognize the efforts of some of the Uptakers over the last year, too.

Mike McIntee, one of the founders of The Uptake, and probably the best known Uptaker because of his work at the recent state political conventions and anchoring the Quick on the Uptake show on KTNF, got a special award, a beautiful retro-look microphone for his studio. If you watch the webcast of Quick on the Uptake this afternoon, you can probably see it. Listen and decide if it makes Mike sound better.

Mike did say that he was going to work on his James Brown. We’ll see.

Thanks to Mike and the rest of the crew (some of whose names I will forget if I try to list everyone) for all the stories, otherwise untold.

The photo of James Brown is from the blog Tennessee Guy.

Technorati Tags: The Uptake,Mike McIntee,Quick on the Uptake,KTNF,James Brown