There ARE Skinny People Too, and Some Stuff Is for Them

OK, so that's a pretty ridiculous caption for the last piece of this week (as I think harder about the Eighth Amendment).  But I had a little fluff piece appear on TV this morning that got my best girl mad, and as I thought about it, I figure she was right -- always a good inference.

The piece had to do with a clothing chain called Topshop with stores in the New York area which, in fairness, I had never heard of.  Apparently a lady went in there looking for jeans, and found a mannequin of a rather tiny size.  It is photographed here:



As you can see in the picture, it certainly is thin.  So this woman, Laura Kate Berry, an admitted "size 10/12" shopper, sent Topshop a very long rant (and if you've read this column, you trust that I know what a long rant looks like), complaining about the damage this mannequin does, because today's girls have such issues with body image, etc., etc.  You can read it if you have a few hours and a lot of tolerance for repetition.

Now, in point of fact I bow to few males in terms of my bona fides to discuss this topic.  Having once owned, with my best girl, the nation's largest plus-size bridal shop, I think I can blend a sympathy with Miss Berry's argument, with an understanding of the market.

And I've already written about the silliness of the way women's clothes are sold right here.

Here's the thing -- this argument is going to creep into some crevices that are going to depart from Miss Berry's complaint.  That mannequin is almost impossibly thin, and she is pretty evidently complaining that it is quite over the top in its portrayal of the female form.  And in that, she's probably right -- there is little to be gained by using a size negative-4 mannequin.

But what will come of this is going to be a mass victimization drive -- OK, it actually already exists -- where the whole thing is about stores selling skinny clothes and why aren't they carrying items that flatter larger figures which, of course, are far more typical.  This is just driving girls to eating disorders and issues with body image, that sort of thing.  True though it may be, we will surely create another oppressed group, no doubt, for Democrats to try to find a way to suck votes from.

But this is far, far more nuanced a discussion than it sounds.  The jeans in that picture above were designed by some designer, somewhere, in a particular way.  I'm not the expert, but my best girl swears that such a design as they have in the picture, simply would not look good on women above a certain size, and I assume that she's quite right.  Now, whether those particular jeans only look good on size-6 and below figures, I can't tell you.  But my wife does, and she has years of experience in the industry.

Her point was simple -- women's shapes vary tremendously, with an average around size 12-14 or so.  More important, the further you move up toward average, and then larger, sizes, the more variety in the "shape" of the woman becomes possible, such that more different options have to be available to flatter the different shapes that an array of size-16 women, say, can have.  While  pretty much all size-2 women can wear something designed to flatter a size-2 woman, that's not the case as the sizes rise to, and above, average -- because the shapes of larger women vary so much.

What that means, then, is that the stores need to have a bigger variety in larger designs to cover the different shapes of the non-skinny, and variety means more stock, which means higher investments (I'll reference this point next paragraph).  In short, it's a heck of a lot easier, and way cheaper, if women's clothing stores carry primarily designs that flatter smaller figures.  We get that.

So where is the "fault", such as there may be fault -- and given that this is creeping quickly into a victimization argument, someone will be looking for fault -- to be found?  Well, that's a bit complex, too.  Stores have buyers, who decide on and acquire the clothing to be sold.  They have guidelines set by the chain and operate within them.  So if you find that a store has only skinny mannequins, and only skinny clothing on them, and only skinny versions of that clothing on the racks, then you can expect that either:
- The store operating model is to sell a particular style, and it only flatters smaller women
- The buyer likes the profit margin on styles that only happen to flatter smaller women
- The margins are really tight, so the store only wants to carry smaller sizes (see above)
- The stores' floor space is really tight, so the chain only carries smaller sizes (same)

Again -- it is a lot more expensive to cater to average-size and larger women because a store needs a lot of different styles to flatter the diversity of larger shapes.  If you don't quite get that, read it again because it's critical.

You get the idea.  None of this is about body image, it's about business.  There are stores that specialize in providing a variety of designs which were specifically designed to flatter certain shapes of larger sizes.  We owned one and lost our life savings at it.  That's a hard business -- in our bridal salon, we only had samples above size 10, and to provide samples above size 20, we literally had to have a lot of samples which flattered a half-dozen completely different body types.  No wonder typical bridal shops in the USA only carry size-8 samples!  It is way cheaper, even if the average bride has to drape the sample in front of her to see what it might look like.

I get Laura Kate Berry's point, I really do.  But I seriously doubt that Topshop is overtly trying to sell a particular body image.  It is far more likely that they simply decided to carry a certain style of product, and that product happens to look good on the skinny, and not on others.  If she wants to do something really productive, she should patronize those stores that offer designs for her size, and take to Twitter and publicly salute the designers who create them.  That's why God created social media.

Now, that sounds less like a victim and more like someone trying to solve the problem.  Shoot, a few more people patronizing that kind of store and we might still be in business.

Copyright 2015 by Robert Sutton
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You Didn't Do It, Mr. Speaker

As you may have seen from the "crawl" low on your TV screens, there was a proposal being put forth, a motion of some odd parliamentary kind in the House of Representatives, to remove John Boehner as Speaker of the House.  The motion "to vacate the chair" will go nowhere, but what the heck -- it sums up what a lot of Republicans and conservatives are thinking.

I was thinking about this before the last election when it looked like the Republicans might add the Senate along with the House.  In fact, I wrote about it in the linked piece, because I was really concerned.  Here, after all, was a Congress for four years, with the House passing bill after bill to die a-borning on Harry Reid's desk.  Clearly that was not what the populace wanted.

But if the Republicans did take both houses and failed to lead, they would have almost zero chance of recapturing the White House in two years, in 2016.  In fact, I wrote these words and italicized them to make the point:

"The clearest path to another Democratic president in 2016 will be if a Republican majority in Congress is not united in its legislating and looks just as impotent as the current gridlocked one."

I meant that. I meant that one of the best things that Republicans ever did -- as Republicans -- was to pull off the 1994 House election coup and then go to work on the Contract with America, the famous Newt Gingrich-led platform that included a set of conservative legislative ideas.  It was leadership from Congress, and it was bloody refreshing, at least until self-preservation took over and the term-limit idea stalled, which pretty much dried up the public's faith.  Still, much of what Bill Clinton takes, or is given -- OK, "takes" credit for in terms of the balanced budget is because he was forced into it by Congress.

In 2014, we all celebrated the Republican capture of both houses, but I warned in that piece that winning was only the first step.  Mr. Boehner and Mr. McConnell, the new Senate Majority Leader, would be abject failures if they did not go straight to the nation and sell a legislative agenda that would force Barack Obama either to sign or veto its content, very publicly.

Clearly, the nation does not agree with Barack Obama even as it votes for him.  2014 was the time, after the big win, for Republicans to go to the public with plan for what a Republican agenda would be like -- in other words, offer up bills that Obama would likely veto, and then tell the people to give them a president who would sign them, because they are good for the country.

I couldn't have been more explicit, although granted this column was being read a heck of a lot less than I am now.  So maybe they didn't get my memo.

But it appears that Mark Meadows (R-NC) got the message; it is he who put forth the motion to vacate the chair.  And I, for one, don't blame him.  I want a Republican president and a Republican Congress, but with electoral politics being what they are, that's a hard sell.  But John Boehner and Mitch McConnell have not even knocked on the door, let alone stuck their foot in the doorway.

They have not tried to sell the country on their vision of what Republicans would do to make their lives better.  They have not put forth a vision of that "new America" that Donald Trump wears on his hat.  They have not energized a soul.

Someone has to, lest we suffer through a Hillary administration.

We have 15 months for this Congress's leadership to convince the USA -- or at least Ohio, Nevada, New Mexico, Florida and Virginia -- that its vision for leadership is better than that of the people who sit in the White House now, better than that of Nancy Pelosi or Harry Reid.  They had better get off their butts and do something.  Because to date, they have done nada, as in "nada darn thing".

Pass some laws.  Put them on the president's desk and make him do something.  Put him on the defensive.  If he vetoes things, make a speech and dump it on him -- our side has people who can write compelling stuff, right?

That, of course, won't happen.  Speaker Boehner deserves to be removed.

Copyright 2015 by Robert Sutton
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Here You Go, E.J., You Asked and I Got You Covered

Last week, in an otherwise routine op-ed column in the Washington Post, the regular op-ed writer named E. J. Dionne inserted an aside, while comparing and contrasting GOP presidential candidates and fellow governors John Kasich and Scott Walker.  The aside was this, and I quote:

“As governor, Kasich pushed big tax cuts that included repealing the estate tax. (The Republican obsession with protecting large fortunes is beyond me.)”

Was that a challenge for someone to explain the "Republican obsession with protecting large fortunes", at least in the context of inheritance and estates?  I doubt it, but for God's sake, don't write it if you don't want someone to answer, least of all an M.I.T. guy when the columnist went to Harvard.  Oil and water, y'know.

Dionne could not possibly have written that line without some kind of innate belief that the possessions of an American default to the Government upon his or her death.  He uses the term "protecting" in the sense that we think "from something", so from what does he seem to think that is?  General Motors?  The State of Idaho?  Al Sharpton?

No; the only way that "protecting" makes sense is in his implication that either a decedent's possessions by definition belong to his or her heirs, or to the Federal Government.  So clearly one could turn the tables on Dionne and ask him the opposite question, or at least make the statement -- "The leftist obsession with confiscation of the personal possessions of the dead, over their desires to provide for their heirs is beyond me."

I can hear him now.  "But nobody needs to leave millions and millions to their heirs", or something like that.  Well, I don't mind putting words in his mouth, because it appears to me to be precisely what he is saying.  And I do think that needs to be answered, so here goes.

This is the United States of America.  It is a free country; free for its citizens to reach for and achieve their goals, not for the government as in Soviet Russia or Cuba, or other countries that people try to escape from, or whatever structure E. J. Dionne thinks is appropriate.  No, we mean free from the government.  We mean that government does only what it is, in the case of the USA, constitutionally allowed to do, and that taxation is at the lowest level required to provide the amount needed to fund it.

But possessions belong to the citizens, and taxation of possessions and income is a grudging action on the part of a free people's government to pay for it to perform its functions of defense, regulation of interstate commerce, the post, etc.  Taxation is the sad reality we pay for a free society.

But unless government concedes that, its lifers and their sycophants in the press will push to tax more and more.  They will tax until eventually, as has happened with E. J. Dionne and with the entire left, their conventional wisdom becomes one where possessions default not to the citizen but to the government, because everything innately belongs to the government and we hold them only with the government's grace.  What a sad, sorry existence such people must have if they have come to that.

So Mr. Dionne, here is your answer.  The "Republican obsession" is neither Republican nor an obsession.  Rather, it is a conviction, and a conservative one that is not associated with membership in a party.  It is a conviction that our earnings and property are to be protected -- from theft and from excessive taxation equally.  That our property, whether billions or one cent, innately belongs to us, and that it is government's role to protect it rather than to seize it in taxation.

I fear that if you have to make the statement you made, sir, you will never get it.

Copyright 2015 by Robert Sutton
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The Seventh Amendment and the Supreme Court

Apologies to all for having wandered into some other minefields amidst this series on the Bill of Rights.  Needless to say, there is always something outrageous or idiotic enough to trump a simple musing on the Constitution, as far as a daily topic.  If it isn't Obama babbling on Comedy Central about the IRS, he's off giving taxpayer money to Kenya that's actually going to get borrowed from China because the taxpayers money was already blown.

The Seventh Amendment doesn't get a lot of air time, because -- heck, who even knows what it means from its text?  That text is a bit dense in places and the translation to conversational English seems a bit discontinuous from the original.

Here it is:

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.

The first part is pretty easy -- if you are defending a civil suit in federal court, you are entitled to a jury to hear the case (as long as the matter at hand is at least $20).  I am going to save you the research; according to the Consumer Price Index, the equivalent amount today would be about $520, still small enough that such a dispute would be settled in small claims and not in front of the Federal bench.

It is the second half of it that is of more interest.  If I am reading the various interpretations of the oddly written text correctly, it is saying that, again in the context of a civil trial before a jury in a Federal court, whatever a jury finds -- not the verdict, but the facts of the case -- is golden and cannot be reversed or even looked at in a higher court. 

Now, I think that's interesting as heck, if only because I didn't know that to be true.  After all, the most contentious case to get to the Supreme Court involving the Seventh Amendment was Colgrove v. Battin about 40 years ago, and that one was only about how many jurymen it took to screw in a light ... oops, sorry -- how many jurymen were needed to comply with the Amendment's provision requiring the court to offer a jury trial.

The answer, by the way, was "six."  I don't know how they decided that six was a magic number, and why seven would work but five would not.  Those are magical and mystical people that sit on the Supreme Court, even the ones there in 1973.

But I digress.

As I said, I was startled in that I did not know that what a jury says to be a finding of fact -- the "facts of the case" -- is obliged to be held as true in any appeal of the verdict in a Federal civil suit.  An appeal may result in a determination of errors by the court in the lower court's rulings, but it cannot reverse what the lower jury determined to be the outcome of the review of evidence and testimony.

Here's the perfect example.  Roger Goodell, the commissioner of the NFL, is about to ... eventually going to ... well, he has to rule sometime on appeal of the Tom Brady case, involving deflated footballs.  We know from the investigation that Goodell's investigators found no evidence that Brady ever asked for footballs to be deflated below the 12.5 PSI minimum.

So if Goodell does not drop the suspension, and Brady is not completely exonerated, he will take a case to Federal court (the NFL is interstate commerce).  The jury will see that Brady was punished inappropriately and will, at the very least, find that Brady did not conspire to set football inflation outside the league rules.

That finding is what would stop Goodell from appealing, because the jury's determination of no specific intent to violate the league rules could not then be challenged in a higher court.  Bingo, back on the field, possibly with a second "back atcha" suit against the NFL, at which that finding would be a very strong part.

We know now -- OK, I think I understand this to be the case -- that the insertion of that clause was actually to reflect a desire by the Framers to keep the Supreme Court from doing the job of the lower court(s) and keep them focused on looking at applicable law (vice looking at the facts of a case).  Soon enough, the judicial principle would arise under which the Supreme Court would rule on questions of constitutionality, but either way the Framers wanted their high judicial noses out of the role of finding fact.

The purpose of this series has been to look at what kind of responsibilities fall on us as a society or individuals, and what kind of complications can arise as a result of a free society having the Bill of Rights as part of its founding document.  And I think this one is probably a bit cryptic, since it is actually saying what the courts can and cannot do.

But I like to think that the obligation of this Amendment falls, in fact, on the citizenry as we serve as members of the juries of these cases.  I've been, as I mentioned, on juries before and, while I am certain we took our awesome responsibility extremely seriously, it was not because anyone told us that whatever we found to be factual was cast in stone thereafter.

It was because we had an innate, American belief in our role in the free society, and that jury service was indeed an awesome responsibility.

And that's a fact.

Copyright 2015 by Robert Sutton
 Like what you read here?  There's a new post from Bob at www.uberthoughtsUSA.com at 10am Eastern time, every weekday, giving new meaning to "prolific essayist."  Sponsorship inquiries cheerfully welcomed at bsutton@alum.mit.edu. 

Let Beijing Do It, Mr. President!

So now we hear that the president is going to give more aid to Kenya to help with "counter-terrorism" and security and that sort of thing.  We all think this is supposed to be a noble act on the part of Mr. Obama and a hat tip to his country of, at least, ethnic origin, at least on the side of the parent who didn't raise him.  Go figure.

So let us translate this to a "standard" household economy -- one, that is, which is spending every dollar that comes in, is unable to save a penny, and is currently running up balances on credit cards to pay for the spending which currently exceeds income.  In other words, pretty much the typical American household.

Now let's suppose that household decides to take on an additional expense, say, building a new deck.  Well, obviously it can't afford a new deck, since it is not bringing in enough money to pay for the things it already is spending on.  So the household will go to the bank and beg for a loan for a deck it already can't afford.

You have to think that's a pretty stupid thing to do.  I would agree with you; you might as well just let the bank build, pay for and keep the deck.  If you don't have the money, after all, you can't spend it unless you borrow it.

Unless, that is, you are the United States Government, particularly under the leadership of Barack Obama.  Since it can print all the money it wants, and can borrow as much as lapdog Congresses will raise the debt ceiling to allow it to, it can act without the least concern about where money will come from.

Back in the 2012 presidential debates, Mitt Romney famously -- or at least it should have been famously -- noted that when he became president, he would look at every spending line in every spending bill with the test of whether "it was important enough to borrow money from China to pay for it."  By that standard, of course, a whole lot of pork would fly out of Federal spending and we would have a balanced budget pretty darned quick.

So now every time Obama proposes -- or declares -- that we shall spend more on something, I apply the Romney China test to it.

In order to send money to Kenya to help in fighting counter-terrorism, we have to go hat in hand to Beijing to borrow the money.  Imagine that -- to fight the exact kind of thing that China is already doing to us, we have to borrow money from them and then send it to Kenya.

Really?

Why don't we simply go hat in hand to Beijing and ask them to help Kenya with counter-terrorism and get the heck out of the way?  After all, we appear to be only the middleman, and we end up paying the interest to China so Kenya can do whatever it is going to do with the money -- and this is Kenya we're talking about; we really think we're going to account for that money when we can't even account for the money from Obama's stimulus?

If we really want to address the problem in Kenya, whatever that might be, how about we just do what is needed a lot cheaper -- with American troops, American agents, American intelligence services, and do it with the agreed cooperation of the Kenyan government but under our orders.  After all, if Kenya wants to accomplish something, and we're the best at it, and we would have to borrow money from our enemies to accomplish it, then at least let's spend less and do it ourselves.

Look, I'm not a counter-terrorism expert.  I don't have a clue how that money would have to be spent and I feel comfortable thinking that we would spend it better than Kenya would, at least in the interest of the United States.

I am also, however, reasonably well-versed in bookkeeping.  I know first-hand the impact of being unable to bring in enough revenue to pay for committed obligations.  It grinds at me that we have a government in Washington that doesn't seem to care a whit that we have spent $20 trillion more than we have brought in, half of all of it during the current administration.  It grinds at me that we are ceding control of our economy to our enemies in China, by insisting on spending money we don't have and have to borrow it -- from them.

Now, I have a knee-jerk reaction whenever I see a headline that starts with "Obama to spend ....".  That reaction, thanks to Mr. Romney, is "Is it worth borrowing it from China?".  It's about time that we consider just asking China to do themselves whatever we're borrowing the money to do.  Let them have it.  Then if someone goes bankrupt, it's just as likely to be Beijing, maybe even before Washington.

I could live with that.  Probably won't bother Kenya either way.

Copyright 2015 by Robert Sutton
 Like what you read here?  There's a new post from Bob at www.uberthoughtsUSA.com at 10am Eastern time, every weekday, giving new meaning to "prolific essayist."  Sponsorship inquiries cheerfully welcomed at bsutton@alum.mit.edu. 

Obama SHOULD Be on a Comedy Show If He's Talking about the IRS

Earlier this week, the President of the United States, Barack Obama, chose to give an interview.  It was not to one of the lapdog networks' lapdog correspondents, like George Stephanopoulos, and certainly was not to Fox or Newsmax but, rather, it was to Jon Stewart, whose show is on the Comedy Central network.

Comedy Central.  The President of the United States.  Yep, great country we have.

So in the course of things, Stewart got around to asking Obama something that got the president talking about the IRS.  Now, the IRS is embroiled in a heavy scandal involving their targeting of conservative-leaning groups seeking tax-exempt status -- heck, you know that.

You know that Lois Lerner, the now-retired IRS executive up to her chin in the scandal, pleaded the Fifth rather than testify before Congress.  You also assume that to be prima facie evidence that something happened for which she could be charged; otherwise she would have answered Congress candidly.  You know there was communication between the IRS and the Eric Holder Memorial Department of Justice, to figure out how to avoid getting caught.  So yes, there was wrongdoing at the IRS, and it clearly was political.  We all know that, no matter what Obama says.

However, none of that seemed to have ever been told to Mr. Obama, who laughably blamed Republicans for the whole thing.  In fact, in the course of his deflection of his own political scandal onto his opponents, he actually said this to the guy from Comedy Central:

"[The] real scandal around the IRS is that they have been so poorly funded that they cannot go after these folks who are deliberately avoiding tax payments.”

Oh it is, is it?  The IRS is actually not able to go after "those folks" who are deliberately avoiding tax payments, and it's because it is so poorly funded?  You mean it's not because their model for choosing which cases to investigate is a moronic kludge, that wastes its precious resources on stupid cases?

Evidence follows:

As I've noted before, my wife and I formerly owned a business that closed in 2013.  The business was, in fact, the nation's largest plus-size bridal salon.  In its best years it did nearly a million per year in sales, 3-4 times the volume of most salons -- but it was never profitable.

You see, access to capital dried up as soon as Obama was elected; the banks stopped lending to small business (though they kept advertising that they were, ha ha).   If you doubt that, get 5-6 small business owners in a room and ask them how many banks turned them down in the last five years.  They'll laugh, but only because it hurts.  In our case, thirteen different banks declined to deal with us -- some were candid enough to say that the president's policies made it a challenge for them to take even small risks, ones they would have always taken in previous years to help small businesses.

Bridal is a very capital-intensive business -- samples are expensive, and you need many more samples in a plus-size salon.  Capital was available when we opened, but when the White House changed, the capital market went dry as a Baptist wedding.  Ultimately, we closed the store and shut down the company, losing every last penny of our savings in the process.

Then, two months back, comes a letter to the deceased company from the IRS.  They were auditing the company for 2013, our last year, questioning an apparent mismatch between reported sales revenues and actual cash and credit-card documentation.

I'll clear this up for you in two seconds ... wedding gowns are normally an ordered item, and take 4-6 months to create and ship.  Brides typically pay twice -- half down and half when the gown comes in.  So a salon can either claim (for tax purposes) all the revenue when the order is placed, or take half at sale and half when the gown arrives.  Either is OK with accountants and the IRS, as long as you do it the same way all the time.

We took all the revenue at the time of sales.  So for a November or December order, we ended up paying tax in the year of the sale, even though we got half the payment the following year -- better for the Government, in fact.  In 2013 we received payments for the back half of a lot of 2012 sales, but stopped taking sales mid-year when we closed.  So our 2013 receipts were higher than our 2013 sales, but we had already paid the tax on those extra receipts the prior year.  Duh.

So as soon as that was shown to the IRS agent, you would think that since, you know, the president thinks the IRS agents are desperately needed to "go after those folks who are deliberately avoiding tax payments", they would have dropped the case, especially given that:
- It was obvious there was no case
- It was obvious the taxes had, in fact, already been paid
- It was obvious nothing had been done wrong
- It was obvious that the business was already shuttered
- It was obvious that the owners, a 64-year-old couple, were broke.

Nope, the IRS doesn't work that way.  Instead of doing a fast preliminary check and seeing that the salon had already paid the taxes on the revenue in question, they ordered us to provide over 300 pages of printed documentation, bank records, sales records (we no longer owned the point-of-sale system), inventory records, personal tax records (what, like IRS doesn't have our earlier filings -- whom do they think we filed our returns with, Greece?), etc.

Worst of all, though, is that we had to have the business's accounting firm represent us to the auditor.  You just don't do that yourself without "CPA" after your name, not if you want to avoid screwing up the process.  You know, if you are in a hole, stop digging. 

Accountants are not cheap, and to date they have accumulated over $3,000 in fee charges to us, to defend against a warrantless audit by the IRS, that could have -- and should have -- been dropped after the first conversation.  We will have to find money to pay for an ever-mounting accounting bill for a warrantless IRS audit.

So let me ask.  How do you think my wife and I felt, seeing the clip of Obama on Comedy Central complaining that his IRS "didn't have enough funding to go after the really bad guys?"

Nope, they can't go after the bad guys, but they can go after an old couple's closed small business from which they will get nothing, since (A) everything was done legally, and taxes were paid perfectly legally, and (B) the business is closed and its owners already lost their savings.

Let me tell you something, Mr. Obama -- don't you dare ask the taxpayers to pay one cent more to fund the IRS, until you figure out a way to set the priorities of its audit troops a heck of a lot better than they're assigned now.  You want more money?  Do a better job with what you have first.

Because they obviously can't figure out who the "bad guys" are.   Hint: it ain't us.

Copyright 2015 by Robert Sutton
 Like what you read here?  There's a new post from Bob at www.uberthoughtsUSA.com at 10am Eastern time, every weekday, giving new meaning to "prolific essayist."  Sponsorship inquiries welcomed at bsutton@alum.mit.edu cheerfully.

Thanks, Mayor Hyphen, But We'll Pass on the Inner Harbor

Last night, although we live in Virginia, I happened to notice a commercial inviting visitors to the National Aquarium, located in Baltimore's Inner Harbor area.  Now, if you have never been to the Inner Harbor, it is a very interesting tourist destination.  Once upon a time, it featured an aquarium, a science museum, a novel place called the Power Plant with all kinds of exhibits, lots of places to eat and an unending supply of crabs cooked about any old way you'd like.

The overall setting on the water in the harbor was really great, especially on a summer's day.  Camden Yards is nearby, and we loved to go to baseball games there.  If it sounded like a great place to spend a whole day, well, it was.  My family went up to the Inner Harbor a lot when our kids were younger.  You'd never get through all that was there to see, but we pretty much always went to the aquarium every trip up there.

So it was with a bit of wistfulness that my best girl and I watched the commercial last night.  When it was over, we looked at each other and shook our heads, thinking the same thing -- "No way in heck would we go back there now."  We've been married a long time, so we think the same things a lot.

Why, you might ask, would it be so obvious that we would not go back?

It's very simple.  We would not feel safe in a city where the police force is uncomfortable protecting the people and doing their jobs, because their mayor has told them to.

We've been down the whole Freddie Gray thing more times that I can recall, but now that the weather is warm, and thoughts of visiting the Inner Harbor or Camden Yards again arise, we have to quell them immediately.  We just fear for our safety in a way we would not have in recent years.  If anything were to happen to us, we simply do not trust that the police would be willing to act decisively against those who threatened our safety.

And so we turn to the city's current mayor, one Stephanie Rawlings-Blake (referred to in our household as "Mayor Hyphen"; it's less vocal effort).  Mayor Hyphen is dramatically and memorably responsible for ordering the police force of the city to stand down during the recent riots after the Gray incident.  As a direct result of her orders, buildings were burned and looted, people were injured and the police, who would then have five of their own arrested and charged with various offenses up to and including murder, stopped policing.  The crime rate since has soared.

I'm sure Mayor Hyphen is not terribly sad that the cops aren't out there arresting people any more.  After all, the more crime, the more that people get hurt and buildings get vandalized, the more that she can say how much more government is needed to restore order.  Liberals do that, dontcha know.

But really, Mayor Hyphen, what's more important?  If my ordinary, typical American family, within striking distance, has now crossed off the Aquarium and the whole Inner Harbor from our list of day trips, how many others have?  I'm sure she doesn't really care about us, per se, she already has an election next year that she's going to have some trouble with.

I just don't think it is a good thing for the city, if tourism takes a dive because people don't feel safe going there.  The National Aquarium can advertise its brains out, but it isn't moving.  It's still in Baltimore, and its patrons still have only the Baltimore Police Department to protect them, and they ain't showin' up, thanks to the mayor.

Mayor Stephanie Rawlings-Blake is going to have one heck of a time getting reelected if her opponent -- and word is that a former mayor, very popular, is going to run again -- can point to disastrous loss in tourism revenue.  I doubt that all those crab houses in the Inner Harbor will be big fans of Mayor Hyphen either, if they're losing business ... or the fishermen who supply them ... or the staff that gets let go because the volume can't support them.  Oh, yes, Mayor Hyphen, you're going to be really popular if you don't figure a way to get the cops back to being cops.

Otherwise, Mrs. Mayor, the most probable hyphenated adjective associated with your administration and its legacy will be this:

"Screwed-up."

Copyright 2015 by Robert Sutton
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"In Loco Parentis" -- or Just "Loco"

So, a little more on a case that resonates with the earlier piece on the Sixth Amendment, particularly the part about one's right to counsel in "a criminal" case.  And let me note, before we even get started, that the text of the Sixth Amendment refers to "in all criminal prosecutions ..." 

It does not confine its dictates which, by the way, are the law of this land, to government entities.  So whatever you think "criminal" means, if it is arguable, it applies as far as this piece.

Many readers of this site are not in the Washington, DC area, or even in the USA, and so you may be unaware that the nation's capital is, and has been for many years, run by people who combine corruption (Marion Barry, Vincent Gray) with incompetence (both of the two aforementioned, along with Sharon Kelly), with a far-left political bent and strong undertones of racist policy.

By "run by", I include the City Council, especially when we stress the incompetence, corruption and far-leftism.

Of course you'd like some evidence, so here we go.  The poor folks who were stupid enough to elect that Council and those mayors -- and I do not live there -- were subjected recently to a proposal from a Council member, Anita Bonds, that would cover accusations of sexual assault on campuses.

Now, whether or not sexual assault is indeed a problem on campus -- and one may assume that it is -- does not change the wording or the implication of the Sixth Amendment's guaranteed protections for those accused in a criminal prosecution, rights to counsel, to due process and to an impartial jury.

That doesn't seem to bother this Anita Bonds who, it needs to be mentioned, is also the head of the Democratic Party in the District of Columbia.  As explained here, she has proposed a law for the District that would put a "permanent and prominent notation" on the academic transcripts of students convicted of sexual assault, or who leave school while an investigation is pending.  The italics are mine, and are relevant.

Nowhere -- not once -- is there a hint of reference to actual governmental judicial due process.  Nowhere is there a mention of what the obligation of the university is in terms of compliance with due process.  This law, were it ever to be passed and survive until the first Federal court that heard a case on it would likely laugh it into oblivion, would affect not only private schools -- such as Georgetown, George Washington and American University, but also the University of the District of Columbia -- which is a government entity.

Deep breath ...

Do you, especially those of you who spent four or more years in university campuses, have a shred of trust that your institution would even value an actual Constitutional mandate higher than political correctness?  I quote from a letter to the Post editor from a lawyer named David Benowitz:

"None of the several universities in the District where I have represented students allows accused students to have a lawyer speak with them. None allows lawyers to cross-examine witnesses.  At American University, [although I represented a student] I was forced to sit outside the hearing room, while my client, accused of sexual assault, faced off against a university lawyer. The hearings are presided over by fellow students, amateurs lacking the training or experience to rule on complex matters of evidence and procedure."
 

No wonder that other states are exploring the converse law, i.e., guaranteeing counsel to the accused in these cases.  But let me answer my own question back a paragraph on trusting colleges to value the Sixth Amendment more than being PC:

No!  Not only "no", but heck, no.

I graduated from the Massachusetts Institute of Technology and, while I trust the school to do a lot of things well, it is still a rather liberal-run place, and I have never heard a peep in the 46 years I have had any association with MIT that suggests that the U.S. Constitution is held in higher regard than any other legal rationale.

Maybe I do have confidence that MIT, were it to play in this foolishness if Massachusetts passed something like this, would at least tip its hat to the Constitution and listen to those who reminded them to.  But Georgetown?  Beats me.  UDC?  I really don't think so.

Look at the law as proposed.  Forget the specific punishment; look at process.  Any punishment that goes outside the school, as this one would, demands due process.  "Due process" does not mean trials presided over by students.  It does not keep lawyers away from the defendant during trial.  Those proceedings flunk the constitutional test on all counts.

If the proceedings that would produce the outcome in this law are not done in accordance with the Sixth Amendment, they're invalid, certainly for producing any punishment that would translate outside the walls of the university.

And that, friends, means that the universities -- all of them -- take on the role not only of deputies in law enforcement, but also the role of the courts.  And don't think they're not -- the Sixth Amendment doesn't anywhere confine itself to just government "trials."  Once you oblige universities to put, by law, the outcome of what could be kangaroo courts into a permanent punishment form for its "convicted" defendants, they absolutely fall under that mandate.

I wrote several times about the disgrace that was the set of actions of the president of the University of Virginia (here and here) in regard to phony accusations of rape that shut down the fraternity and sorority system there for a while.  Let's just take that a bit further.  Suppose that the fake story in Rolling Stone had led to a trial of a member of Phi Kappa Psi -- or several -- in one of those "student courts" that pass for justice on campus, and it had happened in DC.

Suppose that one of those students had seen the deck stacked and left school, presumably to find a different university with higher judicial standards, whose president could actually spell "Constitution."  Under this law, he would have his academic record marked with a permanent indication that he had left school after an accusation of sexual assault.

That's "permanent", as in "forever."  No trial, merely a notation, and one that would not reflect the fact that, rather than face a court of grossly-undereducated students, he left school.  There would be no form of appeal.  And, most importantly, there is no provision in the proposed law to remove the punishment if the defendant were to be exonerated in an actual, you know, court of law where the rules of evidence and due process do apply.

You give a liberal an inch, and they'll take a mile -- and then reach into your pocket for good measure.  Give a liberal something that would actually help.

Give them a copy of the Constitution, at least if they learned to read in college.

Copyright 2015 by Robert Sutton
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Guest Column: Destiny Is What We Make It

I'd like to welcome Ed Fenstermacher, a friend and classmate of mine at M.I.T. 45 years back, as guest columnist today.  Ed is a former Air Force officer, current nuclear engineering consultant, husband, and proud father of three.  Ed can be reached at efenster@alum.mit.edu.

-  -  -  

This article was inspired by Bob’s blog on hyphenated Americans.  About a week ago I was watching (by default) the end of Meet the Press.  They had a love fest between Chuck Todd and a writer named Ta-Nehisi Coates, who apparently is the author of an article on why we should pay the descendants of ex-slaves reparations, and of several books including a new one entitled Between the World and Me.
I haven’t read the book, but I gathered from the interview that it involves conversations with his son, in which he apparently imparts the view that, as an African-American, he can expect to be abused. 

A few hours later, I had a young black man show up at my door with a piece of paperwork that had been omitted when he showed up for his Eagle Scout Board of Review.  He had completed an Eagle Scout Service Project, in which he had collected and shipped to a Liberian school both school supplies and sanitation supplies.  He had chosen to do this project after a trip to Liberia (where his father was born), during which he was exposed to the extreme poverty of the country, which drove home to him just how blessed he was to be born here. 

He shared this blessing with those less fortunate, by his own efforts and by persuading others to help.  This fine young man will be attending Hampton University and hopes to attend law school after he graduates.

It occurs to me that these two young men, who probably resemble each other physically, cannot be starting out with more different views of what is ahead.  The first, coming from the family of a published author lionized by the press, undoubtedly is from an elite family with elite connections.  He will have no trouble getting into an elite school; but he will be handicapped with the view that history is destiny.  He has been taught that his father was discriminated against, so he will be too, and to view the world with a chip on his shoulder.

The second, coming from a middle-class working family, believes that he can accomplish anything he sets his mind to.  I will bet that my new Eagle Scout, throughout school and his lifetime, will outperform young Mr. Coates, unless that young man shakes off his father’s indoctrination.

As for reparations, there would have been a case for them in 1865, based on the fact that the persons who had just been freed had been enslaved unjustly.  However, none of those people is alive today.  To the extent to which their descendants have been victimized, it was first by Jim Crow laws imposed by Democrats in the South, and then by a system that encouraged dependence and the breakup of the family -- starting with the New Deal, and continuing through the Great Society to today.  

We now have 80 years of evidence that, while the government can supply food and shelter, it cannot substitute for a father’s guidance.  This is borne out in the writings of economist Walter E. Williams (Race & Economics: How Much Can Be Blamed on Discrimination?) and Wall Street Journal journalist Jason Riley (Please Stop Helping Us: How Liberals Make It Harder for Blacks to Succeed).  Both authors, by the way, are black.

The Eagle Scout I mentioned above is one of nearly a hundred I have worked with over the last two decades.  They have come from a range of economic circumstances, virtually every ethnic group and religion, and have been of all colors.  Many have had physical or learning disabilities.  What they do have in common is adults (usually a combination of two parents and scout leaders) -- adults who have cared enough about them to encourage them to do their best, to believe in themselves and in a higher power of some sort, to persevere, and to have a positive attitude.  These young men have embedded the Scout Law and Scout Oath in their lives, and there has not been a single one that I would not be proud to have as a son.

Of course, Scouting is just one way to accomplish the goal of producing a generation of young adults who will embody the best of what we have to offer as human beings. 

I just finished reading a book called InSideOut Coaching by a retired NFL Pro Bowl lineman named Joe Ehrmann, who became a pastor and coach.  The book takes the reader through a personal journey, during which he was taught all of the wrong lessons about life but, luckily, a few good ones as well.  He turned his life around after realizing that success on the field could not help in his biggest challenge, coping with the loss of his younger brother to cancer.  Over a period of years, he addressed the issues that had plagued him in his early life, and developed a program to nurture the best qualities of young men through coaching.  

He calls his program “Building Men for Others.”  The central tenet of his coaching is “To help boys become men of empathy and integrity who will lead, be responsible, and change the world for good.”  And he doesn’t wait for a government program to do it; he goes out and does it one boy at a time.

What it comes down to, in the end, is the message we pass along to our young people, particularly minorities that have historically faced adversity.  If you believe that history is destiny, you will limit yourself to the historical role.  

 But I believe that history is history ... and destiny is what we make it.

 Copyright 2015 by Robert Sutton
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The Other Supremacists Are Probably Worse

Once upon a time there was a group called the Ku Klux Klan.  They had leaders with interesting titles like Kleagle or Beagle or Grand Wizard or Exalted Cyclops.  They wore white sheets and were led, same as they were founded, by Democrats.  Some of those Democrats became very famous and very powerful, including the Democrat who was Majority Leader of the United States Senate, a fellow by the name of Robert Byrd.

Pretty much everyone in West Virginia knows Robert Byrd's name, because even though he was the Exalted Megawatt of the KKK (OK, I think he was a Kleagle, which is equally powerful), virtually every public building in the entire State of West Virginia  is the Robert Byrd Whatever Building.  Lots of highways are the Robert Byrd Highway, and there are probably lots and lots of people and goats named after him there, too.

It's certainly amazing that even though racism ranks high on the list, right up there with rape and murder on the liberals' what-not-to-do-or-be list, they're not out there trying to rename West Virginia highways and government buildings after someone less ... less ... OK, racist.  But embarrassing the memory of Democrats is not what liberals do.  John Kennedy was running young women in and out of the White House on a daily basis, and there are probably a lot of folks in their, oh, early 50s running around who look like him, but darned if he isn't still a heroic figure.

At any rate, somehow our view of who white supremacists like Robert Byrd are, these days, has morphed a bit.  The media think more of militias in Idaho, and skinheads and the like.  And, to be fair, that's probably not off the truth too far, although the biggest white-supremacist crowd, at least in terms of pernicious impact on black America, is made up of those same liberals.  Those are the ones who don't think black Americans are capable enough to pull their own weight, to graduate school, learn, get a job, or make it in American society without their help -- and government's.

Still, whoever the white supremacists are out there, we know one thing -- we don't like them.  We don't like for one group to declare its genetic superiority over another, whatever may be the facts of the case -- and there are some Asian students suing Harvard over that principle right now.  But setting aside actual data, or real genetic studies (whose outcome would be shot down anyway), we know this -- America is not a fan of white supremacists.  Stipulated.

So if America indeed is not a fan of white supremacists, let's ask this question -- is it because they are racial supremacists, or simply because that race they tout is the white one.  I have a really good reason for asking that question.  Because I daresay that if you asked 100 good, politically-correct liberals any variant of that question, their answer would include some flavor of the phrase "No one race is any better than another", possibly modified by "No race or religion is any better" or "No race, religion, planetary origin or gender ...".

You get the idea.  They would never say "It's because white people are no better", that would be too specific and liberals try not to be able to be pinned down.  Besides, that would sound rrrrrrracist and that would be terrible.

So what if the supremacists weren't white?

I'm not talking about black supremacists (we have those) either.  I'm talking about the fact that what is going on in the Middle East and now, as last week's Chattanooga incident has brought home, is nothing less than the practice of Islamic supremacists.  Am I wrong?  They are total ethnic purists, believing that only their race, their God, their faith and even their interpretation of that faith (vs., say, the Shiites) is so far superior that all others -- i.e., infidels -- must be killed. 

Let's compare.  There are a few nut cases out there who are sufficiently over the deep end and mentally disturbed to pull off stunts like the horrible shooting in Charleston.  However, true white supremacists are no longer out there plotting to murder non-whites.  Lynchings are really a thing of the past, and however silly the current crop of skinheads are, and how bad their actions of 100 years ago were, they're really not what 2015 white supremacists do.

Now, your Islamic supremacist, well, you're dealing with a whole different fellow there.  Their contempt for those not like them and their belief in their moral, racial and religious superiority is at least as virulent as can be found in Idaho.  But worse yet, they are being pushed to act on it, by promoting worldwide followers to commit mass murders, and to blow up places where those unlike them congregate -- including mosques full of Muslims who don't happen to follow their interpretation of Islam identically!  Not kidding, folks.

So why, then, are the media and the left not using the same language, the same techniques, the same vile condemnation of these people that we use for skinheads?  I mean, the only difference, aside from one set being white and the other fundamentalist radical Islamists, is that the latter kill people as part of their basic, fundamental makeup.  They kill the innocent, they get others to kill the innocent, and they celebrate the killing of the innocent, all as a way to say that their way, their religion, their race, is better.  The Klan types, by contrast, are pretty tame any more.

We don't call them Islamic supremacists, because the leader of the free world, our own Barack Obama, chooses not even to recognize that Islamic fundamentalist terror even exists!  How can he condemn Islamic supremacists, despite their horrific, planned murderous actions in the USA, without calling them out for what they are?  And the media, the left (but I repeat myself), Hillary Clinton (I re-repeat myself) and their supporters all follow as if they don't have the capacity to think a single independent thought.  "What?  Barack Obama is wrong about something?  That cannot be!"

I don't know if Islamic fundamentalist terrorists have a shred of a sense of humor, but if they have the capacity to laugh, they have to be doing so now -- at us.  A country faces a huge terror threat that is acted out upon every week, it seems, and it not only does nothing, but its "leader" won't even acknowledge its existence.

Mr. Obama, you swore to uphold the Constitution -- twice, amazingly.  You swore to "faithfully execute the office" to which you were astonishingly elected.  Faithful execution of that office includes protecting the nation's citizens.  If you can't even allow yourself to utter the phrase "Islamic terror" or, as I would say, "Islamic supremacists", then how in God's name can you protect the citizens, who unfortunately elected you, from them?

White supremacists have nothing on these guys, Mr. President.  Name them.  Do something.

Copyright 2015 by Robert Sutton
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Musings on the Sixth Amendment

This is the sixth in a series of pieces with off-the-cuff reactions to the reading of the Bill of Rights, and on the responsibilities of, liabilities to, and and uncharted waters regarding, each of them in a free society. It has been a real eye-opener for me to look at them with a curiosity as to what the thought processes were in their creation, contrasted with their implementation today.

Here is the Sixth Amendment, in the event that you, like I, forgot the precise text:

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his [defense]."

There's lots to absorb here, because although all of this deals with individuals and organizations (companies are people, too, so the Court has advised us) who are defendants in criminal proceedings, there are several distinct guarantees here, in fact:
- The right to a speedy trial
- The right to a public trial
- The right to a jury of impartial people located where the crime occurred
- The right to question where the alleged offense occurred
- The right to be told why you are arrested
- The right to "confront" opposing witnesses
- The right to compel testimony
- The right to a lawyer.

Strangely, my first reaction on reading all this was to ask why it took almost 200 years for there to be a court case solidifying the right to an attorney.  Yes, I know that the real decision in Miranda v. State of Arizona was about the  obligation of the government to remind the accused of their right to counsel, but you get the idea.

The next element that I thought striking was the right to a "speedy [sic]" and public trial for the accused.  First, it didn't specify that this right, or actually any of the others in the Sixth Amendment, devolved only to citizens.  That illegal who murdered an innocent woman on the pier in San Francisco gets that right as well, at least by virtue of his having selected a country with an embracing Constitution in which to commit his murder -- and his seven other felonies.

What is "speedy"?  That actually seems like a fairly colloquial word to have been put in a document of such import -- perhaps they could have written "prompt" or some other synonym.  Do we not read that sentence and think quickly about someone like Amanda Knox who, guilty or innocent, rotted in an Italian jail for months and months while their inane and pompous judicial system eventually got around to handling her case, and then took forever to try it, another forever to get a verdict and ended up with a decision that got overturned on appeal?

That was a real embarrassment to an entire country.  If I were ever to contemplate going back to Europe, I can assure you that Italy would not be on my list of places to visit.  I certainly have no intention of committing any crimes while here, there or anywhere else, but if a person accused of something can just hang in jail for months waiting, as if Italy were more like Iran, well, I can spend my tourist dollars elsewhere.  I have to think a lot of Americans have thought twice about visiting Italy after all that.

Aside -- were you aware that there was a time after Charles Manson was arrested for the Tate and LaBianca murders in 1969, when he could have whipped out the Sixth Amendment and maybe gotten off?  At one point after the arrest but before trial, the prosecution was a bit light on evidence and afraid that if Manson pressed for a speedy trial under the Sixth Amendment, they would not have been able to mount a case against him.  The prosecutor, Vincent Bugliosi, wrote later in his book on the case that he bluffed the Manson team by pushing for a fast trial date himself, forcing the defense to back off their desired date.

Did the Framers intend for the meaning of "speedy" to be relative, with a sort of "reasonable-man" test that would apply to each case differently based on its complexity?  We just saw a settlement in the BP oil spill case that resolved a dispute from an action in 2010 -- five years ago.  Sorry, but that's horrendous.  Was that "speedy" relative to the complex issues of liability, or did the defense lawyers allow it to drag on, effectively yielding their Sixth Amendment rights, hoping for a better settlement (or higher fees for them)?  Or was that a civil and not a criminal case?

I notice that the only constitutional note as to the construct of the jury is that they be "impartial" (and "of the state and district" where the crime was committed).  A jury "of one's peers"?  Nope, that phrase is not in the Constitution.  You are not entitled to have people "like you are", same gender, race, religion -- nothing like that.  Just "impartial."

And how do we determine impartiality?  Well, as traditional and lawyers dictate, we line up a bunch of people (veniremen) and the defense and the prosecutor ask them questions to determine if they've heard of the case, prejudged guilt or innocence, etc.  They then of course, refer to their textbooks on the art of picking people for a jury (a staple of law offices) to decide if that person would help or hurt the case of their client, whether the defendant or the People.

I suppose if there were a better way to empanel a jury we'd have done it already.  But it does take the burden of determining impartiality away from the Court and place it on the agreement of the parties.  If we wish the Constitutional reliance on impartiality to be determined that way, fine.  The one attribute of that process I love is that when the trial is over, the loser can't complain about jury selection, because the Court didn't pick the jury, counsel and prosecution did!  

Finally, how "impartial" does a jury have to be?  I served on a jury for a murder trial once, which I mentioned in an earlier piece.  It was interesting in that it was in a small town in a sparsely populated county I lived in at the time, thirty years ago.  Given where it was, we had jury candidates who knew the murderer, knew the victim, and pretty much everyone had heard of the case.  Of course, I had not, since there was only one newspaper for the county and I didn't read it all that much.  It had happened near the county seat, too, and we lived out a ways.

I didn't know until our deliberations how much my fellow jury members knew of the case.  I'm sure many of them even knew the lawyer and the prosecutor -- I knew both.  How "impartial" could we possibly be?  How did the lawyer and the prosecutor even decide on the twelve of us who did end up trying the case, given that they knew who we were?

The answer, I expect, is that we as citizen jurors are a whole lot better people when we serve on a jury than we are at other times.  Judging by the debate on the case we did, once the case was turned over to us, left alone to our devices, we went right to the evidence and the testimony and rendered our verdict in a reasonable time, with quiet, calm deliberation.

As it turned out, we got the "guilty" part right, but convicted the murderer on second-degree when it should have been first-degree (the prosecutor could never find the motive to give us, though the defense attorney knew what it was*).  We did what we could.  And we were acutely sensitive to our roles relevant to the Sixth Amendment rights of the defendant.  I think I can feel pretty good about how surprisingly easy it is to "be" impartial, and therefore to find people who are.

I've "tried" your eyeballs long enough.  Now try not to need the protection of the 6th.

Copyright 2015 by Robert Sutton
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*  I'm sure that I can't leave without explaining the trial.  A fellow had killed his young rival in a love triangle by firing shots at the guy's car, parked next to the building he lived in, and then shooting him when he came out to see what was going on.  The woman involved lived in an apartment next to the victim -- and ironically was married, to a different guy.  We on the jury knew none of that part, just that the defendant had fired shots at the car and plugged the rival when he came down.  The forensics were great, but we never got a motive.  I went to see the defense attorney weeks later and he very openly explained what we -- and the prosecutor -- didn't know about the motive.  Now that was a fair trial :)