DeWine: Vote For Me Because Cordray Hasn't Fixed Betty Montgomery's Crime Lab

Apparently Mike DeWine is going to make an issue of the Bureau of Criminal Identification and Investigation (BCI), known colloquially as the state crime lab. Here he is talking to the Vindy:

When asked about Cordray, DeWine said the Democrat has been unable to improve the productivity of the state’s crime lab, which has had problems with a backlog of processing evidence, such as DNA, for criminal cases.

“Richard Cordray did not create the problem, but he’s not really solving the problem either,” DeWine said.

OK, first off you have to admire DeWine's instinct for the capillaries. These days when a Republican admits that his opponent faces problems he inherited it's so refreshing you almost want to vote for him.

Almost.

What DeWine doesn't mention is that the crime lab has never lived up to the hype given it by Betty Montgomery. She oversaw the expansion of BCI and touted it as an accomplishment when she ran for reelection. But it has labored under severe case backlogs forever. When I was in the Summit Prosecutor's Office in the early '00s we had to wait weeks for drug test results and months for DNA in any but emergency cases. I had left the Stark County Prosecutor's Office where they have a county lab and few delays.

So what would DeWine do to actually fix the problem?

“I can’t tell you exactly what the problem is, but I know what the results are, and the results are the crime lab needs to be run more efficiently.”

Excellent. He doesn't know what the problem is, but he's sure he has a solution to it. Mike is tha man. Well let me offer a possibility.

At one point we had a tour of the Richfield lab. It was vacuous. Desolate. Sepulcrous. In a word, empty. There was a staff of criminalists there but also many many empty work stations.

In other words, they built out a crime lab system, but didn't fund actually staffing it.

In this economic climate, you are unlikely to hear either candidate say that what we need to do is spend more money. But the fact is, a serologist can only process so many polymerase chain reactions at a time. There comes a point at which you need more serologists.

I look forward to DeWine continuing the "I can fix the problem without knowing the cause" strategy. For one thing, Cordray says he has made the labs more efficient, and hopefully he has the numbers to back it up. For another, it has always irked me that Montgomery ran on being the crime lab AG when in fact it was a job half done. Any opportunity to correct the record is welcome.

McDonald v. Chicago; Another Attempt to Explain 2nd Amendment Incorporation

Yesterday was the First Monday in October, meaning that the season has begun for Supreme Court watchers. One of the more interesting cases to watch will be McDonald v. Chicago -- another go-round for the new improved Second Amendment.

Recall that in Heller v. DC, the Supreme Court found for the first time in constitutional history that the Second Amendment includes a personal right to have weapons and that an outright ban on handguns violates that right. But the District of Columbia is Federal territory. We still don't know if this freshly invigorated right applies to the states.

I've referenced this before when Sotomayor was getting NRA hateburgers thrown her way by a certain failed gubernatorial candidate, and again referencing my Akron Legal News column about nunchucks. The feedback was my drive by treatment of the issue left some of my non-lawyer readers confused. But that they really liked seeing Bruce Lee play ping pong with nunchucks.

So here again is an attempt to explain the background of the case. I'll have more specific thoughts on the case and some of the strange bedfellowships it has inspired.

In the beginning, there was the Bill of Rights. And it was good. But it was only good against the Federal Government. Recall that the first words in the First Amendment are "Congress shall make no law." The Constitution wasn't about creating rights, it was about creating a newly powerful national government after the disaster that was the Articles of Confederation. Not everyone was comfortable with a national government with real power. The original purpose of the Bill of Rights was to secure individual rights against this new government.

Not to say that states could do whatever they wanted. Each state had a constitution with some version of the freedoms in the Bill of Rights. But for the first several decades of the nation, states were not under Federal Constitutional constraints.

That changed after the Civil War. In light of all that had just happened, the Northern states thought that just maybe states had a wee bit too much freedom under the Constitution. And so the Restoration Amendments were passed -- the 13th, 14th and 15th. The purpose of these amendments was to codify certain results of the war (the 13th abolished slavery; the 15th guarnateed voting rights to freed slaves), and more generally to guarantee freedoms against state intrusion.

Nestled in the 14th amendment is the Due Process clause, which says that no state shall "deprive any person of life, liberty, or property, without due process of law." Starting in the early 20th Century, the Supreme Court began reading the clause as incorporating Bill of Rights guarantees against the states. What does due process mean? Look to the process guarantees in the Bill. What "liberty" cannot be denied? Look to the substantive rights in the first ten amendments.

The Court rejected calls to simply incorporate the whole Bill in one fell swoop. Instead it adopted an approach called selective incorporation. Selective incorporation says that only fundamental rights are incorporated. Fundamental rights are those that are "essential" for "ordered liberty" or are rights out of which all other rights flow. Not a rigorous standard, to be sure.

For a number of reasons to be saved for later posts, I (along with most anyone paying attention) expect the Supremes to incorporate the Second Amendment in McDonald. But how they go about it will be interesting, and will have implications for future decisions about the metes and bounds of the right to bear arms.

In the meantime, you can read up on McDonald on SCOTUSwiki and Wikipedia if you wish.

Brett Hartman Gets Stay of Execution

From a joint statement by Attorney General Cordray and Prosecutor Sherri Bevan Walsh:

We are in the process of reviewing the decision of the Sixth Circuit Court of Appeals. A stay has been temporarily granted by the Sixth Circuit and will remain in effect until the U.S. Supreme Court issues its opinion in District Attorney's Office for the Third Judicial District v. Osborne. Based upon today's order, the execution of Brett Hartman will not go forward on Tuesday, April 7.

The SCOTUSWiki page for the Osborne case is here. The issue is whether a defendant has a due process right to examine the state's evidence using updated technology post-conviction. There's a secondary issue the Court may reach which is -- sit down for this -- whether a person has a due process right to have a conviction overturned based on being actually innocent without any allegation of trial error. I'll try to come back to that one in a later post, but yes it is as jacked up as it sounds.

Hartman has been arguing for the right to retest evidence from the scene. On appeal to the Ohio Supreme Court he argued for limited testing basically to rule out an inconsistency between his story and the physical evidence. The claimed right to retest as described by the paper is more extensive -- basically retesting everything even though he pretty much admitted that he was in the victim's apartment so that physical evidence putting him there isn't a big surprise. The Supreme Court opinion, by the way, is available on this Brett Hartman Is Innocent site. As the opinion demonstrates, the evidence against him is actually quite overwhelming.

I don't know where the Supreme Court will come out on Osborne, so it's dicey to say when Hartman's planned execution will get back on track. By coincidence, this makes two consecutive Summit County defendants who got a stay pending a Supreme Court decision. The first, Richard Wade Cooey, has subsequently been put to death.

Gun Laws and the Knoxville Shooting

Since the shooting at Tennessee Valley UU Church, I've been waiting for the obvious response from Gunnitistan: That the answer is to allow concealed carry in churches. The first on my radar screen, via this week's Carnival, is Conservative Culture.

Let's acknowledge a few obvious points. First, great caution should be exercised in drawing public policy conclusions from any data set in which n=1. Second, Conservative Culture isn't exactly the brightest star in the Rightysphere constellation. Using this post as foil is little better than constructing a straw man. Apologies in advance.

Third (and less obvious) massacre prevention shouldn't be our primary focus in gun policy. Massacres inflict a horrible psychic toll and make big splashy news, but they amount to less than a rounding error in the overall homicide rate. If we find that Policy Change X would prevent some massacres but increase the overall homicide/assault rate, then on balance X is not good policy.

Much of ConCult's post is directed at criticizing the "liberal thinking" at the UU Church. Thanks for that. Probably some conservative comment on the tragedy hasn't included some sort of criticism of the politics and/or theology of the church, but I have yet to find it. The shooting seems to have inspired a small ebb in "Kill the Libruls" rhetoric since some guy decided to actually do that, so we have that going for us. Which is nice.

And by the way, the criticism is a bit off the mark. Ethical pacifism is not an integral part of UU theology (you are closer to that in Quaker and Mennonite churches, though even there CC's depiction is probably a bit off).

In our church few if any people would say that the man shooting at them should be spared if someone has the shot. Where we differ is the level of glee. We would find the death of one more person a tragedy, if a necessary one that on balance saved lives. We wouldn't be all "He's dead -- Yay!" Personally I'm glad he's still alive, if for no other reason than his plan was to commit suicide by cop and it's a Good Thing that any plans of this hateful bastard were thwarted.

Anyway, on to the gun issue. Experience with massacres shows that guns at the scene of a massacre may lower the death toll, but won't prevent massacres. Massacre assailants have almost invariably intended to die in the assault, rendering deterence meaningless. They also start blasting before anyone knows what is happening, meaning that people will likely die before anyone can return fire. Looking at the Colorado Springs massacre (n=2), the assailant managed to kill two people despite the fact that the church had an armed security guard on duty.

On the other hand, the Tennessee shooting illustrates the value of restricting assault weapons. While most assailants use multiple semi-automatic weapons with high-capacity magazine, Jim Adkisson used a shotgun that he had to reload after three shots. That's when the congregants had a chance to tackle him and prevent further carnage.

I'll concede that guns among congregants might make people safer, so long as those congregants are well-trained and fairly balanced. For personal reasons, that's not the choice I'd make for my church, but I see the argument.

Unfortunately Gunnutistan insists that regulating high-powered assault weapons and banning high-capacity mags is a half step from throwing us all in irons. Twenty round magazines are necessary for nothing but killing large numbers of humans at a time. Yet the gun lobby fights every common sense gun restriction, arguing that the only possible solution to the problems posed by guns is more guns.

Pray for us.

A Shooting in Tennessee

The shooting at a Unitarian Universalist church in Knoxville, Tennessee has affected all of us -- myself to the point of groping for words. I've spent hours shifting from updates in the Knoxville papers to blog posts to my own blank posting screen.

It's too early to try to make sense of What All This Means. Right now we're grieving. We are grieving the loss of the two members who died in a twisted soul's feeble attempt at a blaze of glory.

And we grieve the loss of the illusion of safety. Jim Adkisson's actions don't make my church any less safe than it was two days ago. But there is a difference between appreciating intellectually that terrible things can happen without warning versus a visceral knowledge based on a real live terrible thing.

As UUs we believe ours is a chosen faith. That is, we attend church not because God commands us to but because we choose to seek out God. That choice takes on a special resonance with the knowledge that two of our fellow members lost their lives as a result of it.

Happily, others have found the words that elude me. A round-up. The Unitarian Universalist Association of Congregations quickly built a site for expressions of support using the Blogger platform. Also, Sara at Orcinus wrote beautiful piece on the strength of liberal religion. Street Prophets has a good post up including thoughts based on other Orcinus posts about eliminationist rhetoric in conservative thought. Other UU bloggers weighing in include Philocrites who has been following the story piece by piece, ChaliceBlog and Yet Another UU.

The Gun Lobby and the Mexican Drug Wars

In a comment to yesterday's Heller post, Swanny argues:

Instead of putting more restrictions on them, we need to work to keep guns from getting into the hands of the wrong element. That is actually easier than it sounds, and can be accomplished using existing laws. Take a look at the statistics on gun crime sometime and you will see that the majority of guns used in crimes come from a small percentage of firearms dealers. Focus on shutting these dealers down, and you will put a significant dent in the flow of illegal guns.

A happy thought for us, but not to the residents of Gunnutistan. Portfolio Magazine this month carries a long, heavily reported story about how the increasingly bloody drug wars in Mexico are fueled by guns smuggled from the United States. Drug cartels buy in the United States because they can readily buy high-tech killing machines either from know-nothing dealers whom the U.S. is slow to act against, or from private dealers or gun shows which have few of the restrictions that Swanny laments. Toward the end of the piece we learn why:

It’s well-known in Washington that the efforts of groups representing gun owners and the gun industry have helped hobble the A.T.F. The agency’s ranks and budget have hardly expanded in years. N.R.A. director Wayne La­Pierre has said that the abolition of the A.T.F. is one of his goals, and he once compared its agents to Nazis. In the Senate, gun-control opponents led by Idaho senator Larry Craig have delayed the confirmation of Michael Sullivan, Bush’s chosen A.T.F. director, for more than a year because they say that he has made it too difficult for gun dealers to operate. Of the roughly 5,200 gun-dealer-license applications it received for inspection last year, the A.T.F. provisionally approved 4,400. It revoked 97 licenses, or less than one one-thousandth of the total. “We can only enforce the laws Congress passes,” one A.T.F. agent says. “We’re never going to be able to change the laws, because of the N.R.A.”

So first, we don't really have the laws we need. We have a bunch of laws that restrict individual owners that vary from state to state. But we have few Federal laws with any teeth that allow the government to move against high-volume dealers that fill the supply lines of the underground market that supplies criminals both here and across the border.

I'm not an anti-gun absolutist, though pro-gun absolutists won't make the distinction. But the gun lobby is interested in more than protecting individual rights of law-abiding citizens. They also are protecting a multi-billion dollar industry that deals death worldwide.

Finally, some commenters to the story are saying that the whole problem is Mexico's gun restrictions. Let's be real about this. The United States has more guns per capita than any industrialized nation. We also have a higher prison population per capita than any industrialized nation. And we have higher rates of violent crime than any industrialized nation. The "more guns" experiment has played out: we are doing far worse than the controls.

Gov. Strickland in the Running for Dumbest Post-Heller Reaction

Here's the statement posted on the official website:

“I concur with today’s landmark decision by the US Supreme Court, which emphasizes what so many have long understood: The right to bear arms is a fundamental civil right like the freedoms of speech and to vote. And it's important that governments at all levels not infringe on those fundamental rights.

Um, Wayne LaPierre has left the building, Governor. You can get up off your knees now.

First off, Scalia's opinion studiously avoided stating whether the right to bear arms is "fundamental." The laundry list Scalia provided of what the Court was not striking down

Second, a finding that the right is fundamental would be if the right to bear arms is directly analogous to the right to speech, where does the Governor think that right ends? Possession of fully automatic weapons? Do we need to strike down the firearms specifications for crimes? After all, we've struck down hate crimes laws that enhanced penalties for things people said in the course of a crime. Does enhancing penalties for possessing but not using a gun in the commission of a crime "infringe" on the right to bear arms. What about concealed carry by convicted felons? Or guns on airplanes?

There appears to this Governor's fealty to the gun lobby.

DC v. Heller: SCOTUS Gives Right to Own a Gun, But Little Else

The opinion is out. As usual, SCOTUSWiki is the best place for a round up. On SCOTUSBlog, Lyle Dennison has a good summary of the opinion and a separate post pulls key quotes from the majority opinion. Also, you can check my preview cheat sheet and predictions post to see how I did.

To understand the Scalia's majority opinion, you should focus on one word in the Second Amendment: "The." As Scalia noted in oral argument, the amendment protects The right to bear arms, that is, the right as it existed at the time the Second Amendment was passed. So the opinion spills most of its ink in service of examining the historic record to determine what that right was at the time the Bill of Rights was added to the Constitution.

"The" is also why Scalia's opinion goes to pains to laundry list the kinds of restrictions (e.g. on concealed carry, types of weapons, sales and licensing) not directly implicated in the decision. While The Right cannot be infringed, The Right was not absolute and many current restrictions can fall under the boundaries of The Right.

The only surprise in the decision is how carefully Scalia defines its parameters. While not the extreme minimalist that Roberts and Alito are, he nonetheless tends not to bother with realpolitik in his opinions. I certainly can't recall a Scalia opinion so careful to define what it is not.

I wonder if this opinion will be a watershed for gun control activists. Up to this point, activists have been fractured between absolutists who make up the core of a small cadre of activists, and the majority of us who could be described as "concerned citizens of America but not of Gunnutistan" who are more interested in common sense regulations to dampen the urban arms race rather than tilt at the absolute ban windmill. With an absolute ban off the table, but the Court signaling that many regulations short of a ban, that core, if they are smart, will try to organize people around regulation. That is what Freedom States Alliance, for example, has been burning most of their pixels on.

Cuy Co. Rs Response to O'Malley Mess, Annotated

The Cuyahoga County Republican Party sent a presser to the Carnival mailbox about the scandal surrounding disgraced County Recorder Pat O'Malley. Here it is, with some thoughts

Chairman Rob Frost of the Republican Party of Cuyahoga County remarked today on the guilty plea entered by County Recorder Patrick O‘Malley on federal obscenity charges. Chairman Frost stated, —O‘Malley‘s guilt on these disturbing charges comes as no surprise, considering his lack of leadership and disgraceful behavior as a public official whose career has been marred by corruption and brazen patronage.

Wha . . .? Not surprising? Because political corruption and pedophilia go hand in hand? Did anyone actually read this before it went out?

Tom Noe is probably the most corrupt figure to afflict Ohio politics in a generation. Yet, if he had kiddie porn on his computer I would be genuinely surprised. And I would go around saying "Well, there go those corrupt Republicans again."

Whatever the federal authorities expose, it is obvious that the Democratic Party has embarrassed and failed Cuyahoga County citizens, in particular through the unethical behavior of County Prosecutor Bill Mason in supporting and shielding fellow Democrat O‘Malley for years. It is clear that Mason could not protect his old college roommate from the FBI and federal prosecutors who are willing to do their jobs.

Well, Bill Mason is on his own. This annotation isn't going to carry his water. The investigation will reveal what it reveals and, if it drives him out of office, the House of Pho won't exactly be hanging a mourning wreath

O‘Malley‘s resignation was both necessary and welcome, yet it is disappointing to realize that any appointee to fill a vacancy in the Recorder office will most certainly be another Democrat collaborator,which would only perpetuate the current reality of deceitful and corrupt leadership that has failed our county over the past 20 years.“

Yes, and truly disappointing to consider that the Republican Party hasn't had the chance to fail Cuyahoga County like it did the rest of Ohio. And shocking to think that with a communications strategy like this, people in Cuy.Co aren't buying what the local party is selling.

Two-term former North Royalton Mayor Cathy Luks, who is slated to run against O‘Malley in this year‘s election, commented on the breaking story today, —Regardless of my opponent, I am focused on the need for reform of our county government. It is time for effective change in Cuyahoga County, and I am the only candidate who can bring ethical leadership to the office and restore public confidence in our government.

OK, this is how to respond to this kind of scandal. Mayor Luks brings the discussion back to reality. It's a shame her well-drafted comments had to appear side by side with the embarrassing driven put out by her party.

By the way, in the ProgOh story linked above, O'Malley expresses the hope that he won't go to prison. Um, pack your toothbrush, Pat. The sentencing guidelines say you must go, and a cantankerous former prosecutor like Judge Dowd isn't going to buck the guidelines on your account.

Heller Thoughts and Predictions

Just finished listening to my DVR of the argument. First off, some logistical notes. CSpan has been playing the argument throughout the day. For whatever reason I haven't becen able to pull it up on the CSpan site, but I've been having computer issues with media files generally so you might have a better chance. Also, Ben pointed out what I didn't, the SCOTUSBlog Wiki page about the case which gives you as comprehensive a listing as you could want.

Now on to the argument. own as one of Walter Dellinger's best, though it is understandable. Dellinger has a solid textual argument that the amendment is entirely about guarantying the continued viability of state militias. Unfortunately, it's an open secret that a majority of the Court is prepared to find an individual right and not worry too much about its militia-relatedness so for the most part he is in damage control mode.

Even more explicitly working damage control is Solicitor General Paul Clement. He is taking the Bush side in the Bush/Cheney split in the case, arguing for an individual right, but cabined to allow reasonable regulations including all those currently on the Federal books.

Alan Gura arguing for Heller sounds a fairly conciliatory tone regarding reasonable regulations. For all the anger in Gunnutistan over the possibility that the Second Amendment may be less than perfectly absolute, the debate over regulation is disappointingly peaceful.

By my count five justices will find an individual right and not tether it to the purpose of protecting militias. They are Chief Justice Roberts and Justices Kennedy, Scalia, Alito and Thomas. The first four made their positions clear in oral argument. Justice Thomas, as is his custom, uttered not a syllable in argument, but telegraphed his position ten years ago in a concurrence in Printz v. U.S.

Justices Breyer and Stevens also seem inclined to find an individual right, but tie it to the militia clause. Justices Ginsberg and Souter seem to be leaning away from finding an individual right at all.

Scalia and Roberts appear inclined to uphold the DC Circuit opinion. Roberts says at one point that the gradated standards of review are extraconstitutional "baggage" that some rights have picked up along the way (it would be a separate post to explain it, but let me say that's the most chilling utterance of the day.) He would be happy deciding this case on its merits without offering a test to guide future courts. Scalia is inclined to apply the strict scrutiny test as the DC Circuit did, under at least some readings.

Alito and Kennedy spend the most time talking about self defense as a core value underlying the individual right. In Alito's case he spends a great deal of time discussing the implications of the DC handgun ban for self defense, and seems especially concerned with a provision mandating trigger locks for long guns. Kennedy has the oddest take of the day, arguing that the second amendment must have been past to guarantee that settlers on the frontier have the right to weapons to defend themselves against "grizzlies or whatever" -- a concern he apparently would transplant to the wilds of Anacostia.

What I didn't get is a reading on what sort of standard of review Kennedy might apply. He's the key vote on that issue. Probably Thomas will side with Roberts and Scalia in establishing the broadest, strictest right. Quite likely Alito will as well. Kennedy once again finds himself in what passes for the middle on this Court and, if history is a guide, will tread carefully. Probably his opinion will closely tie the right to self defense and probably his standard will be somewhat less than strict scrutiny -- something like the intermediate scrutiny advocated by Clement.

That's the legal predictions. I'll save political and policy implications for another day.

Heller Cheat Sheet, Pt. 2: The Issues

The Heller case offers an obscene array of issues for Con Law wonks. Some are obvious to the casual observer; some that are a little more obscure.

Here's a basic summary and a couple of predictions.

1. Is there an individual right? This of course is the core argument. The Second is singular Constitutional amendments in providing its own preamble. The first clause of the amendment gives essentially the reason for it's existence (because a militia is necessary "to secure the security of a free state"), then concludes with what sounds like a prohibition on prohibition. As Lithwick notes, the Court's last statement about the Amendment essentially said that part two isn't really necessary for part one.

2. What extent of regulation is permissible? While the amendment says "shall not be infringed" all but the most nutty libertarians will concede that such absolute sounding prohibitions aren't really absolute. The First Amendment's statement that "Congress shall make no law . . . abridging freedom of speech" nonetheless allows Congress to make lots of laws abridging freedom of speech given the right circumstances. As an extreme example, conspirators on trial for their statements furthering a conspiracy can't seek refuge behind the First Amendment.

So the question is open which government interests the will court deem acceptable exceptions to whatever individual right they find. This is related to the issue discussed in Charles Fried's piece on SCOTUS Blog: what is the standard of review. As Fried notes, the most fundamental rights are subject to "strict scrutiny" which the Court states means the government needs a "compelling purpose" and must use the "least restrictive means" to achieve that purpose. For other rights, the court might apply the "rational basis test" (basically a straight face test -- can you say with a straight face that the government has a rational basis for its action) or something in between.

3. What gets weighed against the government purpose? Part of the Court's methodology is weighing the governmental purpose against the individual interest. Sometimes, in particular in the Court's cases about free exercise of religion, the Court never states why the right exists, making it very difficult to weigh individual versus government interests. Hopefully the Court will offer some finding regarding why the right exists. If they follow the wording of the amendment, they would presumably weigh some reduction in security against the government interest. If the Court reads that more broadly -- a right to self defense, for example, the weighing is different.

4. How much will the Court defer to legislative determinations. This is the essence of Dahlia Lithwick's piece. At some point the most activist courts say that they will defer to legislative findings. Deference is particularly salient in this area. The government purpose in regulating firearms is public safety. Given the proliferation of somewhat dubious social science purporting to find that gun access deters crime, a court could always strike down gun laws by holding that the laws won't improve safety. That level of judicial activism would make the Warren Court squirm a little.

5. Will the Second Amendment be incorporated against the states? This question won't be answered in this case, but it will raised in later cases. The Bill of Rights as originally written applied only to the national government. Then the nation ratified the Fourteenth Amendment after the Civil War and, over a number of decades, the Supreme Court held that the due process clause of the amendment incorporates certain fundamental rights against the states.
Because the case involves the District of Columbia -- essentially a political subdivision of the Federal Government -- the question of incorporation isn't on the table this time.

BREAKING: Enzyte Won't Really Enlarge Your Pen1s

Shocking news from Cincinnati.

The continued viability of Enzyte (the once-a-day supplement for natural male enhancement) has a brand has always been something of a mystery. Obviously, the stuff had to be fake. Yet the parent company not only survived, but had the money to run the brilliant (if fraudulent) "Smiling Bob" ads seemingly during every ESPN commercial break. And they famously sponsored:



Their own NASCAR entry.

Turns out, the whole thing, was not only a consumer fraud, but was an ongoing credit card scam:

When customers ordered a product, the company's goal was to keep charging their credit cards for as long as possible, Teegarden said.

He said first-time customers were automatically enrolled in a "continuity program" that sent Enzyte to their homes every month and charged their credit cards without authorization.

"Without continuity, the company wouldn't exist," he said. "It was the sole profit of the business."

If customers complained, he said, employees were instructed to "make it as difficult as possible" for them to get their money back. In some cases, Teegarden said, Warshak required customers to produce a notarized statement from a doctor certifying that Enzyte did not work.

And what may go down as the best line of trial testimony ever:

"He said it was extremely unlikely someone would get anything notarized saying they had a small penis," Teegarden said.

As a scam it was brilliantly audacious. This wasn't just something from a fly-by-night web-based operation, this was a real company! With ads on ESPN! And a presence in NASCAR!! All designed to make it look like the product must have some value or it just couldn't maintain all that presence.

Which leads to a serious point. Apparently the Feds have been after the company -- Berkeley Pharmaceuticals -- and founder Steve Warshak for a couple of years. They were able to make the case primarily by turning one of Warshak's top executives. Why, we must ask ourselves, is it so hard to make a case when the fraud is so obvious? Could it have anything to do with the anti-regulatory fervor of the current administration and the immediate past Congress?

The Berkeley Pharmaceuticals verdict comes one day after the Supreme Court ruled that states cannot offer stronger consumer protections if Federal law regulates an industry. It's easy to make jokes about Bob's wife smiling no more, but this could be a sign of something significantly less funny.

The Lonesome Death of Shawrica Lester.

This week's Scene includes a heartbreaking take on the heartbreaking murder of Shawrica Lester. Shawrica was an innocent bystander killed during a gang shoot-out in an all-ages club parking lot. The cases against most of the gang member who fired the shots that killed her went south as witnesses recanted or refused to cooperate.

I've tried to write about the case before, but always ending up sounding like Bob Dyer's ill-advised "caveman" column. Having a better internal editor that Dyer, I always hit "delete" instead of "publish."

The article is pretty solid, focusing mostly on Shawrica's mother as she tries to move forward after an unspeakable loss and nearly equal injustice. The reporter also interviewed police and some of the neighborhood people. The hook for the story is that the gang involved -- the V-Nots -- ruthlessly implemented "Don't snitch" to keep most of their members out of jeopardy.

The one piece missing is the piece that has been missing throughout the story -- outrage in the larger black community. Shawrica was a young black woman with some promise who died senselessly. Blacks (and some far lefty whites) had no problem mobilizing over the dubious Demetrus Vinson shooting but have remained largely mute about this case. Sadly, mobilization among black conservatives is more occupied with gay baiting than affecting meaningful cultural change.

The culture that allowed Shawrica's killers to escape justice is eating away at cities like Akron. Unless respected leadership stands up and channels community energy toward changing that culture, thugs will continue to push out anyone who can leave until only a shell of a city remains. If Shawrica's death cannot prompt the necessary outrage, I fear nothing can.

Lies, Damn Lies, and Crime Rankings

Both Daily Bellwether and Ohio Daily posted about the new crime stats ranking four Ohio cities as among the nation's "most dangerous," and both have mentioned some criticisms of the list. NPR's On the Media covered the story over the weekend, including a campaign by criminologists against using the FBI stats to rank cities. As the OTM guest noted, the FBI website on which the statistics appear warns against using them to rank cities. Click to access the crime data and you get a popup bearing the following:

Each year when Crime in the United States is published, some entities use reported figures to compile rankings of cities and counties. These rough rankings provide no insight into the numerous variables that mold crime in a particular town, city, county, state, or region. Consequently, they lead to simplistic and/or incomplete analyses that often create misleading perceptions adversely affecting communities and their residents. Valid assessments are possible only with careful study and analysis of the range of unique conditions affecting each local law enforcement jurisdiction. The data user is, therefore, cautioned against comparing statistical data of individual reporting units from cities, metropolitan areas, states, or colleges or universities solely on the basis of their population coverage or student enrollment.

The popup links you to a more detailed set of cautions about the data.

As Bill Sloat notes in his post, whatever cautions the number crunchers put on, the fact remains that four Ohio cities are listed among the likes of Oakland and Compton California, Camden, NJ and Gary IN -- all cities synonymous with urban turmoil and failure.

But the most important caution offered on the OTM segment remains salient:

The harm is that people use the information as if it were conveying something important about their risk for crime. But knowing the city a person lives in tells you nothing about the, quote, "danger" they may face. Knowing the neighborhood a person lives in might tell you something more important about their risk for crime. And, in fact, differences in crime risk across neighborhoods, within any city, tend to be much greater than differences between cities in crime rate.

I also think that uncritical media attention compounds the error, and the city and its residents suffer as a result, I should say, especially the downtown areas of those cities. When people read about the city they're not already familiar with, they often associate the crime risk with the downtown area of the city, the place that people visit, stay in hotels downtown, visit cultural attractions, and so forth.

In fact, of serious violent crimes that occur in the city, four to five percent of them tend to occur in the downtown area. When you consider the, you know, effective population of downtown areas, all the people who work there, who recreate there during the evenings, that's a very, very low percentage. But you'd never know about that from the crime rankings.

Canton Mayoral Strangeness

Blogging the Canton mayoral race is odd for me on a couple of levels. On one, Democratic challenger William Healy currently employs one of my students. A bit ticklish that.

On another, it's Stark County politics. Stark Co. has a gentler, more civilized politics than most other places in the state. I've written about this before. Both parties are closer to the center, will little in the way of far out wings. Elected officials tend to be moderate and work well across the aisle. My former boss, the late Bob Horowitz, was every bit a Democrat, but one of his favorite people in county government was then-Auditor Janet Weir Creighton. And individuals tend to be all over the place on issues. Merely knowing what party someone belongs to doesn't tell you a whole lot.

Fast forward a decade or so and Ms. Creighton is now fighting to hold on to her seat as Mayor of Canton. A Canton Correspondent sent me a link to a Repository story that illustrates how Stark is different:

In the closing of an hourlong debate Sunday, a mayoral candidate lit a fire, and the consequence could be ugly.

Incumbent Janet Weir Creighton told the audience - many of them black - that her opponent's crime policy could be scary.

His "zero tolerance policy (on crime) will lead to racial profiling," the Republican said.

So the Democrat wants to get tough and the Republican is playing the race card. The Republican is concerned about the rights of suspects and the Democrat accuses her of being soft. That's Stark for you.

Looking at Healy's actual crime plank, it doesn't leave lots of room for racial profiling. That is, it doesn't involve things like more traffic stops which is where profiling becomes a problem.
In fact, it includes the sort of community policing and early intervention programs that get-tough Republicans usually deride as coddling criminals. In this instance "zero-tolerance" seems less a codeword for profiling and more a brand for a crime platform that includes some progressive ideas.

CORRECTION: It took me a beat, but I realize the person who sent the clip isn't from Healy's campaign.

Surveillance Cameras in Highland Square

Posted yesterday on Ohio dot com:

Akron police-operated security cameras soon will be monitoring activity in the Highland Square business area and on Copley Road, west of Diagonal Road.

Both locales are in West Akron.

The cameras, which will continuously pan the areas once they become operational in October, represent the first segment of a security project, George Romanoski, Akron's deputy mayor for public safety, said in a news release issued today.

* * *


The recorded video will be stored in the cameras for up to two weeks.

Police looked at severity and frequency of incidents in choosing areas for the cameras. Also, residents, business owners and judges have recommended spots.

All the information in the story comes from the press release. It would have been interesting to learn whether the choice of Highland square was based on the crime number crunching or the neighborhood "recommendations." HS residents have been concerned about some high-profile muggings and assaults lately and can be quite relentless about "recommending" things. On the other hand, it's an open question whether HS is a high crime an area in need of high-tech policing.

Of course it could go the other way with Square denizens resenting the surveillance. Big Brother and all that. You never can tell with the Square. As of tonight, they haven't started talking about it on the HSNA website.

By the way, the big advance in technology which has made this sort of thing possible isn't the cameras themselves, but the data storage. Think for a moment about a hardwired camera leading to a video tape deck. You would be generating three tapes a day which, after two weeks, adds up to 54 tapes. Just finding the physical space to store the media was a real problem. Now the camera itself will store the equivalent of all those tapes.

Breaking: Bobby Cutts Indicted

The only real suspense as we awaited indictments in the case against Bobby Cutts for the high-profile murder of Jesse Davis and her unborn baby was whether prosecutors would try for the death penalty. Apparently Stark County prosecutors feel they have the evidence for death specifications. Coverage:

Ohio.com

Akron News Now.

They also have indicted his classmate Myisha Farrell for complicity.

The Prosecutors Office had scheduled a press conference this morning to announce the indictments. A move which, by the way, prompted Mayor Plusquellec to move a previously-scheduled 11 a.m. press conference so as to ensure a healthy press presence.

Breaking: Cuyahoga County Prosecutor Rules Vinson Death a Suicide.

Just in from the Akron Beacon Journal:

Cuyahoga County Prosecutor Bill Mason has ruled in an independent review that 19-year-old Demetrus Vinson took his own life on March 17 after he was shot by an Akron police officer, confirming the Akron police account of events

If you will recall, the case became controversial when the police released a statement saying that they killed Vinson, then had to retract it when the Medical Examiner ruled that the shots they fired were non-fatal and that Vinson shot himself.

AkronNewsNow has the report posted. BTW, as of this writing (1 p.m.), the ABJ does not. In this electronic world, the print organs have to learn to move a little faster. Or they can keep losing their best talent to radio.***

Anyway, I've skimmed the report. Certainly it won't resolve anything in the eyes of the people howling cover-up. The conclusions are based on forensic evidence, much of which was in the M.E.'s report, and Chance Baker's statement the morning of the shooting, which Vinson apologists have a dozen excuses for.

The report does detail a number of additional forensic tests the Cuy. Co. investigators ordered and a number of additional witnesses they tried to talk to, which may explain some of the delay in releasing the report. Also, they discuss the DNA from an unknown person on Vinson's .45. This, presumably, is why they wanted a sample from Chance Baker, the kid in the car with Vinson.

We are still waiting for the separate report from the Summit County Prosecutor's Office. Eric Mansfield has been blogging what he has been hearing from unnamed sources as we've been waiting for the report. You can read his Vinson-related posts here. His posts have hinted darkly about allegations of missing medical information and the possibility that different investigators will reach different conclusions. We'll probably have to wait for tonight to see if he still thinks that.

Meanwhile, Chance Baker's attorney Eddie Sipplen says he still doesn't accept the report's conclusions. The ABJ story doesn't indicate whether he has actually read the report. And Vinson family's attorney Orlando Williams is conducting his own investigation which begins in earnest now as the investigators at Cuyahoga County wouldn't let him access evidence while they were still investigating.

***UPDATE. As of 1:30 the ABJ has the report posted. You can access it through a link embedded on the headlines page, but there is no link on the page on which the story appears. I don't know when ABJ posted the report because I didn't notice the headline on the homepage until now.

Nikki Giavasis Cares

Earlier this week the papers revealed that Bobbie Cutts, Jr., the suspect in the Jessie Davis slaying, has a daughter by one Nikki Giavasis who lived in Stark Co. and went to Malone College Walsh University there. It turns out, Ms. Giavasis is now an actress/model/author/former fitness competitor and generally Z List celebwannabe. She has given interviews saying that Cutts abused her.

Now she has a new tag to add: Domestic Violence Prevention Advocate. According to the Google page, on June 26, a couple days after her link to the case broke, her website became the site for Nikki Giavasis, Domestic Violence Prevention Advocate. A site whose sole functionality as of
this writing is to refer the reader to the National Domestic Violence Hotline.

Here's the Google search result:


And here's how Nikki's page looks tonight:



Well, thank God. Now that the woman who played "Spectator" in Tin Cup is on board, we'll have this DV thing solved in no time.

Now some cynics may look at the fact that Ms. Giavasis hired an attorney and a PR firm to handle interview requests and conclude that she is using her role in a crushing tragedy to promote a career that currently is stalled at off-off lead pictorial in FHM. Oh, for shame people. She's taking time out of her busy schedule to make sure the papers spell her name right and all you can do is pick.

By the way, she's also got ties to NBA'er Shawn Kemp and to the WWE where the wrestler who killed his family and himself performed, but I'm so not going there.

As Eric Mansfield points out today, Nikki shares an uncommon surname with Phil Giavasis, the Stark County Clerk of Common Pleas. Actually, two Stark Co. officials share the name, Phil, and his brother Plain Township trustee Lou. I started down this sordid road because I've worked with both Phil and Lou in the past and was curious whether there was any relation with Nikki. As far as I can tell, it's a coincidence.

Eric Mansfield's Blog is Now a Real Blog

Eric announced on his not-a-real-platform blog that his blog is also being cross-posted on a Blogger blog. Happy days. He's in my reader and now added to the Greater Akron blogroll.

Best of all, I can refer you to specific posts like this one about the latest blow-up between Mayor Don Plusquellec and Chief of Police Mike Matulavitch. I don't agree with Eric's characterization as a "storm brewing." More like business as usual.

It's not all bad that the Mayor and the police don't dance. The fact that he is able to maintain political power without currying favor from the police has advantages. For one thing, the Mayor is management. When it comes to labor negotiations the Mayor can act like management.

And when there is a use of force case like Demetrus Vinson, level-headed people can have an extra measure of confidence that the investigation is solid.