I meant woe, not whoa. I do know the difference.
It’s woe I was thinking of when I wrote this next bit.
What would you do if you were told you wouldn’t be paid for last 2 months of a 9-month job?
Let’s say you have kids to feed, a mortgage/car payment/college loan payments to make, childcare to pay, out-of-pocket healthcare costs — you know, all the expenses the average working person has.
In spite of one or more obligatory college degrees, continuing education requirements and mandatory background checks, your job requires you to work in facilities where ‘mushrooms, black mold, fecal matter, dead rodents, no heat‘ are common. It’s a workplace functioning like Flint’s water crisis, and it’s been this way for more than a decade. Fellow employees have had to bring in paper towels and light bulbs from home or solicit them as donations to the workplace.
Because of your employer’s money woes, you may even have made a concession agreeing to collect your pay over 3-4 months instead of the next six to eight weeks you are actually scheduled to work.
And then your employer’s employer says they aren’t going to pay, and you might have to work without pay for the next six weeks. Unpaid, as in violation of labor laws unpaid.
And your employer’s employer has a history of acting both in bad faith and with prejudice. Your workplace hasn’t improved for years; children were permanently poisoned and adults died as a result of their awful handiwork on this and other projects.
What would you do? Quietly stay at your desk working and hope for the best, or walk out in protest to demand action?
The employer’s employer accuses you of all manner of bad things, and is actively undermining your rights to organize, by the way.
Welcome to Detroit Public School system, and welcome to more of Michigan’s obnoxious and toxic GOP-led legislating. Pretty sure the jerks who are causing this latest crisis by grandstanding on teachers’ backs don’t care if the president arrives here in Michigan today.
Dude caught on video sprinkling substance on food arrested by FBI
As if we didn’t have enough to worry about in Michigan, some whackjob has been sprinkling a mixture of hand sanitizer and rodent poison on food in stores, including salad buffets. He was caught on security camera in Ann Arbor, but he is alleged to have sprinkled this mix in multiple stores in Ypsilanti, Saline, Birch Run, and Midland. The mixture is not supposed to be toxic, but who wants to eat remnants of isopropyl alcohol and an anticoagulant? What the hell was this all about anyhow?
Canadian city of 80,000 forced to evacuate overnight due to massive wildfire
Mind-boggling to think of an urban center this size forced to flee on such short notice, but Fort McMurray did just that beginning late afternoon yesterday. Even the local hospital was emptied as fire leaped from undeveloped to developed areas, consuming neighborhoods. 80% of homes in the Beacon Hill neighborhood are ash. Conditions have been unusually warm and dry in the region; the local temperature was 83F degrees before the evacuation notice was issued. Weather conditions today are expected to be hotter (32C/90F) and WSW winds stronger ahead of a cold front, likely spreading the fire even farther to the northeast.
The area around Fort McMurray has only been in moderate drought conditions, yet the fire was explosive, doubling in size in a matter of hours. Can’t begin to imagine what might happen in areas where conditions are drier while this climate-enhanced super El Nino continues.
Volkswagen’s former head of engine and transmission development exits company
Wolfgang Hatz, suspended by VW for his role in Dieselgate, chose voluntarily to leave the company. This bit in NYT’s article is choice:
In 2007, shortly after being named head of engine and transmission development at Volkswagen, Mr. Hatz complained at an event in San Francisco that new rules on tailpipe emissions in California were unrealistic.
“I see it as nearly impossible for us,” Mr. Hatz said of a proposed regulation during the event, which was filmed by an auto website.
In other words, Hatz didn’t see the purpose of the regulation, didn’t perceive a challenge to design truly clean diesel — he saw an obstruction he needed to bypass. Auf wiedersehn, Herr Hatz.
Odds and sods
It’s supposedly downhill from the top of this hump. Race you to the bottom!
Y me lamento por no estar alla
Y hoy te miento para estar solos tu y yo
Y la distancia le gano al amor
Solo te veo en el monitor
— excerpt, Monitor by Volovan
Sweet little tune, easy to enjoy even if you don’t speak Spanish.
Speaking of monitor…
Flint Water Crisis: Michigan State Police monitoring social media
Creeptastic. MSP is following social media communications related to Flint water crisis, which means they’re watching this blog and contributors’ tweets for any remarks made about Flint. Whatever did they do in the day before social media when the public was unhappy about government malfeasance?
MDEQ personnel told Flint city water employee to omit tests with high lead readings
The charges filed last week against two Michigan Department of Environmental Quality and a Flint city employee were related to the manipulation and falsification of lead level tests. From out here it looks like Mike Glasgow did what the MDEQ told him to do; with the city under the control of the state, it’s not clear how Glasgow could have done anything else but do what the state ordered him to do. Which governmental body had higher authority under emergency management — the city’s water department, or the MDEQ? And what happens when personnel at the MDEQ aren’t on the same page about testing methodology?
MDHHS too worried about Ebola to note Legionnaire’s deaths in 2014-2015?
Michigan’s Department of Health and Human Services director Nick Lyons maintains a “breakdown in internal communication” kept information about the Legionnaire’s disease outbreak from reaching him. He also said MDHHS was focused on Ebola because of its high mortality rate overseas. There were a total of 11 cases of Ebola in the U.S. between 2014 and 2015, none of which were diagnosed or treated in Michigan. Meanwhile, 10 people died of Legionnaire’s due to exposure to contaminated Flint water in that same time frame. Not certain how MDHHS will respond to an imported biological crisis when it can’t respond appropriately to a local one created by the state.
Other miscellaneous monitoring
Toodledy-doo, Tuesday. See you tomorrow morning!
Day after day, day after day,
We stuck, nor breath nor motion;
As idle as a painted ship
Upon a painted ocean.
Water, water, every where,
And all the boards did shrink;
Water, water, every where,
Nor any drop to drink.
— excerpt, The Rime of the Ancient Mariner by Samuel Taylor Coleridge
Felony and misdemeanor charges are expected today in the Flint water crisis. State Attorney General Bill Schuette will put on a media dog-and-pony show, when it is expected that three persons — two engineers with the Michigan Department of Environmental quality and a Flint water department employee — will be charged for Flint’s lead water levels after the cut-over to Flint River water.
Mind you, the descriptions of these persons do not match that of higher level persons who were responsible for
1) making the final decision to cut Flint off from Detroit’s water system and switching to the Flint river;
2) evaluating work performed by consulting firms about the viability of Flint River as a water source, or about reporting on lead levels after the cut-over;
3) ensuring the public knew on a timely basis the water was contaminated once it was already known to government officials;
4) lack of urgency in responding to a dramatic uptick in Legionnaire’s disease, or the blood lead levels in children.
Just for starters. Reading the Flint water crisis timeline (and yes, it needs updating), it’s obvious negligence goes all the way to the top of state government, and into the halls of Congress.
Michigan’s Governor Snyder has elected to perform some weird self-flagellating mea culpa or performance art, by insisting he and his wife will drink filtered Flint city water for a month. It’s a pointless gesture since the toxic lead levels, experienced during the two years immediately after the city’s cut-over to the Flint River, have already fallen after doing permanent damage to roughly eight thousand children in and around Flint.
Flint’s Mayor Karen Weaver said about the governor’s stunt, “[H]e needs to come and stay here for 30 days and live with us and see what it’s like to use bottled or filtered water when you want to cook and when you want to brush your teeth.”
Or get a new mortgage, I would add. The gesture also does nothing for Flint’s property values. Imagine living in Flint, trying to refinance your home to a lower interest rate, telling the bank, “Oh, but the water’s safe enough for the governor!” and the bank telling you, “Nah. Too risky.”
UPDATE — 10:45 AM EDT —
Charges have been filed against City of Flint’s Laboratory & Water Quality Supervisor Mike Glasgow and Michigan Department of Environmental Quality Office of Drinking Water and Management Assistance district director Steven Busch and MI-ODWMA District Engineer Michael Prysby. Mlive.com-Flint reports,
Glasgow is accused of tampering with evidence when he allegedly changed testing results to show there was less lead in city water than there actually was. He is also charged with willful neglect of office.
Prysby and Busch are charged with misconduct in office, conspiracy to tamper with evidence, tampering with evidence, a treatment violation of the Michigan Safe Drinking Water Act and a monitoring violation of the Safe Drinking Water.
None of the individuals charged in the case have been arraigned.
Sure would like to see the evidence on Glasgow, given the email he wrote 14-APR-2014 (see the timeline).
House hearing on encryption yesterday
Another Congressional hearing of interest: Fed Cybersecurity
In case you missed it, catch the video of today’s House Oversight Subcommittee on Information Technology hearing on Federal Cybersecurity Detecion, Response, and Mitigation. You may have seen Marcy’s tweets on this hearing, at which Juniper Networks was a no-show, and Rep. Ted Lieu (D-CA) was kind of pissed off. Catch Bruce Schneier’s post about Juniper’s vulnerability.
Volkswagen has company: Mitsubishi’s mileage data tweaked to cheat
The Japanese automaker may have to pay back tax rebates offered on vehicles meeting certain fuel efficiency standards. Data from mileage tests on hundreds of thousands of cars was fudged to make the cars look 5-10 percent more efficient.
Speaking of cheating: Volkswagen’s use of code words masked references to emissions controls cheats
The amount of data under review along with the use of code words and phrases like “acoustic software” may delay the completion of the probe’s report. Don’t forget: tomorrow is the second 30-day deadline set for VW to provide a technical solution for owners of its passenger diesel vehicles.
That’s enough. Michigan state AG newser underway now as I update this again at 1:15 p.m. EDT; I may not update here since I addressed known charges above. Catch you on the other side of the hump.
It’s trash day in my neighborhood. Time to take the garbage to the curb. I aim for as little trash as possible, which means buying and consuming less processed/more fresh foods. I use paper/glass/ceramic/stainless steel for storage, avoiding plastics as much as possible. Every lick of plastic means oil — either the plastic has been created wholly from oil, or fossil fuels have been used in its manufacture. Can say the same about the manufacturing of paper/glass/ceramic/stainless steel, but paper can be composted/recycled/renewed, and the rest can be used for lifetimes if cared for. I use ceramic bowls that belonged to my great-grandmother, and stainless pots and bowls once belonging to my mother, and I expect to hand them down some day.
Which makes me all judgy when I’m walking through the neighborhood, side-eyeing the garbage cans at the curb. Can’t believe how much waste is created every week, and how willing we are to pay tax dollars to stick it in the ground as landfill. How can Family X not bother to recycle at all? How can Family Y live on so much processed, chemical-laden garbage? It’s all right there at the end of their driveway, their addiction to fossil fuel consumption spelled out in trash.
What small change can you make in your lifestyle so Judgy McJudgyPants here doesn’t side-eye your trash cans?
Speaking of trash…
Piling on the wonks, Part 3: United Healthcare exiting Obamacare in Michigan
Disclosure: UHC is my health insurer, which I am fortunate enough to afford. But I couldn’t stay with them if I had to go on Obamacare. UHC says it’s losing too much money in Michigan to remain in the program — not certain how given the double-digit underwriting increase it posted for this past year. UHC will leave other states which may not fare as well as Michigan, and even Michigan will suffer from decreasing competition. Do tell us, though, wonks, how great Obamacare is. I’m sure I will feel better should I ever have to shop Obamacare plans for pricey coverage with a dwindling number of providers. And if you missed the previous discussions on inept Obamacare wonkery, see Part 1 by Marcy and Part 2 by Ed Walker.
Time to fetch the emptied trash can. See you tomorrow!
It’s Friday and that means jazz here at emptywheel. But no genre exploration today, just this lovely, evocative downtempo jazz/trip hop fusion work.
It’s dark water jazz indeed this week…
Congress oublies the Flint water crisis
I can’t find anything in C-SPAN about the House Energy and Commerce Committee hearing which was to address the crisis. Convenient for Republicans running for office right now to keep themselves at arm’s length from a Republican scandal. We’re lucky the hearing was captured at all; it can be found at the committee’s website. (Video 3:44:08)
It must be difficult to kowtow to traditional GOP underwriters while trying to appear like you’re doing a credible job of representing Americans most in need. But it’s a lot easier to bury and forget the inconvenient.
The latest scuttlebutt is that the bipartisan Energy Policy Modernization Act of 2015 (S.2012) will proceed without additional funding to remedy Flint’s damaged water system, still replete with lead piping. Senate Republicans led by Senator Mike Lee of Utah protested the inclusion of funding for Flint in this bill, threatening to reject it altogether.
Wait — you know who’s up for reelection this season? Senator Mike Lee! Amazing coincidence! Or not. You know, Senator Lee, when your fellow senators leak about your obstruction, you should catch a clue. Sometimes actually helping Americans is more important than sucking up to your anti-tax overlords.
You know who else is up for reelection this season? Senator Lisa Murkowski, the chair of the counterpart Senate Energy Committee and the sponsor of S.2012. You’d think she’d want to look effective as a leader and at governance.
Roughly 8,000 children will continue to live as if they are in a third world country, with a patchwork of assistance for their health and education, but no relief from the lead pipes which continue to run from the water department to their homes. Imagine them drinking water out bottles for the rest of their childhoods, their families having to take additional time and effort to lug bottles upon bottles for their daily essential needs.
Don’t even suggest these families leave. They are stuck, STUCK in Flint, because their property values have been gutted by the failure of a GOP-led state administration, and the continued avoidance by a GOP-led Congress. Who wants to buy a home with lead pipes in Flint now? Which banks want to finance new mortgages to those homes? Which insurers want to write coverage on them?
Some government aid has been offered to Flint — which the ever-ineffectual Rep. Fred Upton recited like a litany during the hearing (see 0:13:30 in the video) — but none of it addresses the lead piping.
Donald Trump won the Republican primary in Flint’s home county of Genessee, by the way. Can’t understand why…
Cleaning off the desk
Stuff worth perusing, but I’m not going to elaborate on before I chuck it in the bin for the week.
Between September 2014 and March 2016, Microsoft received 5,624 federal demands for customer information or data. Of those, nearly half—2,576—were accompanied by secrecy orders, forbidding Microsoft from telling the affected customers that the government was looking at their information. The vast majority of these secrecy orders related to consumer accounts and prevent Microsoft from telling affected individuals about the government’s intrusion into their personal affairs; others prevent Microsoft from telling business customers that the government has searched and seized the emails of individual employees of the customer. Further, 1,752 of these secrecy orders contained no time limit, meaning that Microsoft could forever be barred from telling the affected customer about the government’s intrusion. The government has used this tactic in this District. Since September 2014, Microsoft received 25 secrecy orders issued in this District, none of which contained any time limit. These secrecy orders prohibit Microsoft from speaking about the government’s specific demands to anyone and forbid Microsoft from ever telling its customers whose documents and communications the government has obtained. The secrecy orders thus prevent Microsoft’s customers and the public at large from ever learning the full extent of government access to private, online information
Emphasis Microsoft’s. Therein the one way to release a limited amount of information: file suit against the government.
And with that we’re off, headed for a nice spring weekend ahead. Have a good one!
CDC director Dr. Tom Frieden confirmed Wednesday that the flavivirus known as Zika is a cause of microcephaly and other severe fetal brain defects.
The confirmation is based on an evaluation of available data for potential teratogenic effects. Using both Shepard criteria and Bradford Hill criteria, researchers proved prenatal Zika virus infection has a causal relationship with microcephaly and other serious brain anomalies.
The first set of seven criteria used in the assessment were developed by Dr. Thomas Shepard to assess an agent’s teratogenicity — the ability to cause birth defects. The criteria of proof are:
1. Proven exposure to agent at critical time(s) in prenatal development
2. Consistent findings by two or more epidemiologic studies of high quality
a. control of confounding factors
b. sufficient numbers
c. exclusion of positive and negative bias factors
d. prospective studies, if possible, and
e. relative risk of six or more
3. Careful delineation of the clinical cases. A specific defect or syndrome, if present, is very helpful.
4. Rare environmental exposure associated with rare defect. Probably three or more cases.
5. Teratogenicity in experimental animals important but not essential.
6. The association should make biological sense.
7. Proof in an experimental system that the agent acts in an unaltered state. Important for prevention.
Items 1~3 or 1, 3, and 4 are essential criteria.
Items 5~7 are helpful but not essential.
Shepard criteria summary:
1. The microcephaly and other brain defects observed in infants and fetuses were consistent with maternal Zika infection during first and second trimester of pregnancy. Mothers exhibited symptoms, and/or had infections confirmed by labs, and/or had traveled to areas where Zika was endemic. This criterion was met.
2. Data documenting the location of Zika virus infections and the subsequent incidence of microcephaly in those areas was supported by two epidemiologic studies. But as sample sizes were too small and controls were lacking, this criterion has not yet been met.
3. Cases manifesting with a very specific defect (an atypical microcephaly) or syndrome (a narrow range of neurological defects in tandem with microcephaly) satisfied this third criterion. With Zika infection, microcephalic cases displayed adequate bone tissue and scalp skin production, but ‘collapsed’ due to the disrupted development of fetal brain tissue. This is not common in other microcephalies.
4. An adequate number of cases fulfilled the criteria of rare exposure and rare defect — one example cited was that of a pregnant woman who traveled for a week to areas where Zika was not endemic. She tested positive for Zika during her second trimester, and the fetus displayed brain defects associated with Zika after the infection.
5. Studies for this criteria — teratogenicity in animal models — are still under way. This criterion is not yet satisfied.
6. This criterion is met as the causal relationship makes biologic sense.
7. This criterion does not apply to infectious agents.
The essential Shepard criteria have been met for proof of teratogenicity.
Bradford Hill criteria summary
Of the nine criterion — the strength of association, consistency, specificity, temporality, biologic gradient, plausibility, coherence, experiment (on animal models), and analogy — only two criterion are not applicable or not available. The remaining seven criterion were met in much the same manner as the Shepard criteria 1, 3, 4 were met.
A spectrum of additional fetal abnormalities has not yet been fully identified in association with Zika infection. This will become clear once some pregnancies being monitored reach term.
We don’t yet know if Zika virus affects adult neurological tissues; some cases of Guillain-Barre Syndrome (GBS) have been reported in areas where Zika is endemic. GBS has occurred in patients after viral infections where neurological tissues have been affected; it would make biologic sense for there to be a causal relationship between Zika and GBS. However, GBS has occurred in patients long after an initial infection, making it difficult to see obvious relationships without further screening and testing.
A Zika vaccine may be some time off; of the flavivirus family, only yellow fever and a couple of encephalitis viruses have vaccines while others like West Nile and dengue do not.
Mosquito control varies widely from state to state, let alone by county or municipality. We do not know if it is adequate to ensure Zika’s spread via Aedes aegypti and Aedes albopictus mosquito species is limited. U.S. experience with the spread of West Nile Virus may be informative.
Funding for additional research, education, training, vaccine development and mosquito control, as well as funding increases for birth control are much needed, But the GOP-led Congress will likely avoid this issue during the remaining days it is in session this election year.
In the meantime, if you’re around mosquitoes in warmer areas of the U.S., are pregnant, plan to be pregnant, or might get someone pregnant, check the CDC’s guidelines on Zika.
And yes, Congress’ GOP members are directly responsible for what happened in Flint, because they are also responsible for neutering the Environmental Protection Agency. Congress is the one entity which failed to take any responsibility for what happened in Flint — and what happened in Flint had already happened in Washington DC. Congress ensured that the EPA would be subordinate to the states, relying on states to act with inadequate recourse to step in and intervene. See Primacy Enforcement Responsibility for Public Water Systems (pdf) and note the obligations the states have to ensure safe drinking water under these laws:
These are Congress’ purview; as part of the Executive Branch, the EPA does not make law. Only Congress does.
Equally annoying today is the tendency by the Republican representatives to go easy on Michigan’s Governor Snyder, who tried to make it sound like he was doing everything he could to fix Flint and be open and transparent. You know this is bull hockey if you’ve looked at batches of emails released to date.
You know it’s also nonsense if you look at documents produced by the Snyder administration, intended to assist the public with understanding what happened.
One example is a timeline of the Flint water crisis laid out in a two-page presentation, with bubbles containing descriptions of events. A bubble marking March 12, 2015, appears in the upper right of the first page, denoting the submission of a report by Veolia Water. The firm had been hired by Flint’s emergency manager as water quality consultant to review and evaluate the water treatment process and distribution system.
Veolia completed and submitted their report to the city on March 12, but the report does not actually say what the state’s timeline document says. Veolia wrote,
“Although a review of water quality records for the time period under our study indicates compliance with State and Federal water quality regulations, Veolia, as an operator and manager of comparable utilities, recommends a variety of actions to address improvements in water quality and related aesthetics including: operational changes and improvements; changes in water treatment processes, procedures and chemical dosing; adjustments in how current technologies are being used; increased maintenance and capital program activities; increased training; and, an enhanced customer communications program.”
Veolia relied on what previous water quality records said; they did not actually conduct tests themselves, or audit how the previous records and reports were prepared.
But the timeline published by the governor’s office reads,
“Flint water consultant Veolia, issues report that water meets state and federal standards. Does not report specifically on lead.”
The second sentence is correct, the first a misrepresentation. That’s not what Veolia’s report said.
The second sentence may be factually correct, but the company was not hired by Flint’s emergency manager to evaluate lead levels specifically, based on the supporting documentation accompanying the resolution authorizing the contract with Veolia.
If one entry on the timeline prepared by the state is this iffy, what about the rest of the timeline?
If this timeline is this iffy, what about everything else generated by officials from the governor’s office on down?
Antonin Scalia is dead. Say what you will, there is no rejoicing from me. Was Nino a malefactor in Supreme Court jurisprudence over the decades since his confirmation on September 26, 1986? Yes, and an irascible one as well. Once Bork got Borked, Scalia was the whipping post for all liberals, on the continuity of the spectrum. Did he earn that status? Yes, and maybe then some.
The hagiography of Nino is already quite well underway. I was out shopping for garden/landscaping things and had no idea until called by Marcy. It still took me a while to get back and dive into this. There are a million takes already underway on the net and in the press, such as the press may be these days. If you want a recap of the same old, this ain’t it. And, for now, what I have to say is not all that long or extricated.
First off, let’s talk about Scalia the man and Justice. As said above, once Bork got Borked, there was going to be a piñata for liberals (like me) to pound on. And, over the years, boy have I, and we, done just that. And for, mostly, good reason.
But anybody can blabber about what a prick Nino was. Fairly. But, in the current context, I want to do something different. As loathsome as Scalia often was, he was still somewhat of a hero to people that practice actual criminal law. No, not across the board, but enough that it ought be mentioned and left as a part of his legacy.
Why? Okay, this is a quick take:
Fourth Amendment: There is actually a long thread of Scalia decency on Fourth Amendment issues over the years. I have had occasion to quote him from both majority and dissents frequently. But, most recently, you can probably relate most easily to United States v. Jones, Riley v. California and, significantly, Kyllo v. United States. Now Scalia only penned Jones and Kyllo, but his fingerprints were all over Riley too. This is just my opinion, but I am not sure that a lesser conservative justice on the court would have seen these decisions through, and allowed them to be as consensus as they were.
One law professor, Tim MacDonnell, put it this way:
Since joining the United States Supreme Court in 1986, Justice Scalia has been a prominent voice on the Fourth Amendment, having written twenty majority opinions, twelve concurrences, and six dissents on the topic. Under his pen, the Court has altered its test for determining when the Fourth Amendment should apply; provided a vision to address technology’s encroachment on privacy; and articulated the standard for determining whether government officials are entitled to qualified immunity in civil suits involving alleged Fourth Amendment violations. In most of Justice Scalia’s opinions, he has championed an originalist/textualist theory of constitutional interpretation. Based on that theory, he has advocated that the text and context of the Fourth Amendment should govern how the Court interprets most questions of search and seizure law. His Fourth Amendment opinions have also included an emphasis on clear, bright-line rules that can be applied broadly to Fourth Amendment questions. However, there are Fourth Amendment opinions in which Justice Scalia has strayed from his originalist/textualist commitments, particularly in the areas of the special needs doctrine and qualified immunity.
I do not agree with everything in MacDonnell’s article, but it is quite good and his dubious context is spot on. Scalia has been more than prominent in Fourth Amendment jurisprudence since his time on the court. I have serious issues with many of the “exceptions” he has bought off on in the name of police expediency, but I can, and do, imagine a different justice being far, far, worse on the Fourth (can you say “Alito”? Of course you can). So, there is that. But, by the same token, I remember coming out of court and getting informed of the Kyllo decision. Several drinks were hoisted to Scalia that afternoon and night.
Then, there is the Sixth Amendment. This is an area on which Scalia gets scant attention and credit for. And, yes, if you practice criminal law, it is one of critical importance, whether pundits or the press realize it or not. Because if you happen to actually do criminal jury trials (or bench for that matter), you know the critical importance of being able to confront and cross-examine the witnesses and evidence against your client, the defendant. I have cited Scalia’s words, both successfully and unsuccessfully, for a very long time on confrontation issues. But the successes I, and clients, have had owe in large part due to Scalia. Here is a bit from David Savage, of the LA Times, from 2011 that summarizes Scalia’s Confrontation Clause championing about perfectly:
The 6th Amendment to the Constitution says the “accused shall enjoy the right … to be confronted with the witnesses against him.” To Scalia, this clause not only gives defendants the right to challenge actual witnesses, but also the right to bar testimony from all those “witnesses” who did not or cannot testify in court. He takes this view even if the witness is dead.
Three years ago, Scalia led the court in reversing the murder conviction of a Los Angeles man who shot and killed his girlfriend. A police officer testified the victim had reported that Dwayne Giles threatened to kill her. Scalia said that testimony violated Giles’ rights because he could not confront or cross-examine her.
“We decline to approve an exception to the Confrontation Clause unheard of at the time of the founding,” Scalia said for 6-3 majority. This went too far for liberal Justices John Paul Stevens and Stephen G. Breyer.
Two years ago, Scalia spoke for a 5-4 majority reversing the conviction of an alleged cocaine dealer from Massachusetts because prosecutors did not bring to court a lab analyst whose test confirmed the bags of white powder were indeed cocaine. The dissenters, including Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy and Samuel A. Alito Jr., said a lab technician who conducts a test is not a “witness” in the ordinary sense of the term.
In June, the court went one step further. The Scalia bloc, by a 5-4 vote, overturned the drunken-driving conviction of a New Mexico man because the lab analyst who testified about his blood alcohol did not actually work on the defendant’s blood sample. He put together an odd-couple coalition with Justices Clarence Thomas, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.
“This is not a left-right split. This is principle versus pragmatism,” said University of Michigan law professor Richard Friedman.
Frankly, Scalia has only reinforced that since late 2011 when Savage wrote said words. If you practice in a criminal trial courtroom, you owe a debt of gratitude to Antonin Scalia for your ability to still confront and cross-examine witnesses and evidence. I don’t think it is hyperbole to say that, without Scalia, this fundamental procedural right would be totally shit right now.
So, this is but a nutshell of the greater whole, and I am still trying to catch up. But those are my thoughts for now. Do not get me wrong, Antonin Scalia was never, nor will ever be, my favorite, nor even an overall positive Supreme Court Justice in my eyes. There is too much malignancy and caustic history from Scalia, on far too many fronts, for that to ever be the case. But the man is not yet even in the ground, and there were a couple of important positive things to say before the ultimate obituary is written.
And, on one other note, let’s keep in mind that the warm and fuzzy stories of Scalia with Ruth Bader Ginsburg, from court interaction, to opera to shooting at animal trips is not the only history of Nino Scalia and women on the Supreme Court. He was, certainly less famously, in some instances, a frat boy jerk to Sandra Day O’Connor. So, take the lionization of the Kagan relationship with a healthy grain of salt.
Antonin “Nino” Scalia was a flawed, but important man. He is now gone. So, the biggest issue is, what happens now? Republican leadership did not have to announce that they will stall their asses off and try to prevent the confirmation of ANY nominee that Obama would put up. Frankly, that went without saying in today’s Congress.
But, can they do that, will there be no Obama SCOTUS nominee confirmed, no matter what? I would not be shocked if that were not so. By the same token, the longest a confirmation battle has ever taken to confirm a SCOTUS Justice is 125 days (Obama has 361 left).
Obama has already said he will make a nomination, and I believe he will. If I had to bet right now, my bet is that the nominee is Sri Srinivasan. I have long thought this, and Sri, while being a decent guy, is a dead nuts centrist, barely a “liberal” at all kind schlub that Obama loves. But I doubt the crazed GOP led Senate would confirm even a milquetoast centrist like Srinivasan. Let other speculation begin now even though the chances of confirmation of any nominee are close to nil.
Irrespective, the primary, and certainly the general, elections just got FAR more interesting. Frankly, this is the only part of the election I was really worried about from the get go. Now it is squarely on everyone’s plate.
XX-DEC-1974 — The federal Safe Drinking Water Act (SDWA) enacted to ensure safe drinking water for the public; the Environmental Protection Agency (EPA) is responsible for setting safety standards, monitoring, compliance and enforcement of the same under the SDWA.
07-JUN-1991 — EPA issued the Lead and Copper Rule (LCR) limiting the amount of lead and copper in public drinking water, as well limiting the permissible amount of pipe corrosion occurring due to the water itself.
XX-JUL-1998 — The federal Environmental Protection Agency required all large public water systems maintain a program to monitor and control lead in drinking water due to piping corrosion under the Lead and Copper Rule (LCR). Cities like Flint must have a state-approved plan to maintain water to regulatory limits for pH, alkalinity, corrosion inhibitor chemicals.
XX-XXX-2002 — [DATE TBD] Genesee County purchased 326 acres of property with 300 feet of Lake Huron waterfront via auction from Detroit Edison, for $2.7 million **How did this purchase affect the city of Flint’s 2002-2004 financial crisis?
28-AUG-2009 — Michigan Department of Environmental Quality (MDEQ) issued a permit to Genesee County Drain Commission for water withdrawal from Lake Huron (Permit 2009-001), up to 85 million gallons per day. MDEQ director at the time is Steven Chester.
10-MAY-2011 — DTE Energy expressed interest in acquiring 3 million gallons of water from Lake Huron intake for use at the Greenwood electricity generation plant.
07-SEP-2011 — Report to Flint City Council by Rowe Professional Services determined buying water from Karegnondi Water Authority (KWA) cheaper than continuing to purchase from Detroit Water and Sewerage Department (DWSD), or using Flint River water as upgrades to Flint treatment equipment required would cost $50 million.
XX-SEP-2011 — (confirm date) City of Flint increase water and sewer rates 35%. Higher water costs due in part to higher-than-expected unmetered water losses. This is the second double-digit rate hike in 2011. The city’s water system once served ~200K residents, now serves half that number and a much smaller manufacturing base.
29-NOV-2011 — Emergency Manager Michael Brown appointed by Gov. Rick Snyder to take over management of the city of Flint effective 01-DEC-2011. Democratically elected offices are now subordinate to the EM.
XX-DEC-2011 — (confirm date) Report showed the City of Flint leaking 30 to 40% of its water, well above more typical 15-20 percent loss of unmetered water.
14-DEC-2011 — EM Michael Brown appointed Howard Croft as Director of Infrastructure and Development. Croft’s role has oversight of Parks and Recreation department, Street Maintenance, Water and Sewer, Sanitation, Planning, Fleet and Community and Economic Development. Jerry Ambrose named financial advisor, with oversight of finance, budget and treasury departments; Gary Bates named director of human resources and labor relations. Bates’s role was temporary, lasting 90 days, at time of appointment.
20-DEC-2011 — The City of Detroit sells $500,675,000 in bonds for Water Supply System Revenue funding (pdf). The offering prospectus notes Flint’s desire to migrate to the KWA, but that it might be seven years out before the move. 6% of DWSD water is supplied to Flint.
XX-FEB-2012 — (confirm date) Emergency Manager’s team audited Flint’s water system to identify current rate of unmetered water loss.
23-APR-2012 — EM Michael Brown proposed budget plan includes a 25% average increase in water and sewer rates, with water rates projected to increase 12.5% and sewer 45%. City personnel cuts were also proposed. Water and sewer are the single largest expenditure in the budget. (Proposed budget, PDF) **Did any of the personnel cuts made affect staffing of water and sewer maintenance?
XX-AUG-2012 — [DATE TBD] Emergency Manager Ed Kurtz appointed by Gov. Rick Snyder after Brown steps down. Kurtz has previous experience working in Flint during the 2002-2004 financial emergency.
XX-DEC-2012 — [DATE TBD] Michigan Treasury officials met with Flint city officials to discuss drinking water alternatives, including Flint River. Only two options — remaining on DWSD, or development/switch to new KWA — would be studied.
Periodically, Jim Comey invites a group of select journalists in for lunch and eats them alive with his charisma and unsubstantiated claims. The first I noticed came when Comey made some false claims about National Security Letters, without a single journalist correcting him. More recently, Comey claimed FBI had arrested 10 people with ties to ISIS, only two of whom have every publicly appeared.
In this week’s edition, Comey got passionate about a claimed spike in crime.
And in unusually passionate remarks, the FBI director said he was “very concerned about what’s going on now with violent crime and murder rates across the country,” in cities as disparate as Omaha and Milwaukee.
At least in this instance, journalists are getting less credulous, because most (though not CNN) reported that in fact the crime stats released this week show a decline in crime, not a spike, even while they reported that violent crime in “many” cities has spiked.
Newly released federal data suggest a slight dip in violence across the nation in 2014. But Comey said those numbers may not be capturing what’s happening on the ground today. He’s been hearing similar concerns from police chiefs, he said.
Earlier this week, the FBI released data showing violent crime dropped slightly in 2014, but many big city police departments have reported significant jumps in shootings this year compared with last year.
In 2014, the number [of murders in NYC] had dropped to 328 — the lowest number of murders since the New York City Police Department began collecting statistics in 1963.)
None I saw, however, pointed out that the claim of a spike in “many” cities stems from a persistent propaganda effort that has been debunked as cherry-picking. Yes, there are a few cities with alarming spikes in violence, but they should be examined as cities, not as a trend that the FBI’s own data shows is moving in the opposite direction.
In his comments, Comey didn’t endorse the Ferguson effect. But he did say we need to move slowly on criminal justice reform both because of this alleged spike and because crime has gone down (!?!). Still from the HuffPo:
Comey said he didn’t know whether protests against police violence have made it harder for police to do their jobs, a theory that has been dubbed the “Ferguson effect.” “I’m not discounting it, but I just don’t know,” he said, adding that he was “focused on it, trying to figure it out.”
“Some have said police officers aren’t getting out of their cars and talking to gang-bangers on street corners anymore, but I don’t know,” he said. “What I do know is that a whole lot of people are dying. They are, according to the chiefs, overwhelmingly people of color, and we’ve got to care about that.”
The spike in crime made him want to be “thoughtful” on criminal justice reform, Comey added.
“My strong sense is that a significant portion of the change in our world since I was a prosecutor in New York in 1987 is due to law enforcement, but I’m sure there are lots of other things [going on],” he said.
“I just want to make sure that as we reform — first of all, we’re grateful that we actually have the space and time to think and talk about sentencing better, rehabilitating better, and [that] is a product of hard work over the past 25 years — but as we do it, are very, very thoughtful about where we used to be and how we got from that point to here,” Comey said.
As with encryption back doors, the data is not there (on that issue, DOJ simply doesn’t collect data on how often encryption prevents it from accessing data). But that’s not going to stop him from cautioning against criminal justice reform.