Archives for July 2007

July 25, 2007

To Actually Catch a Predator

NBC (and MSNBC) relentlessly runs a show called "To Catch a Predator", which is simply a televised sting operation--middle aged men, apparently of the belief that they are chatting with a 15 year old girl, take the bold step of visiting the "girl," only to be confronted by a dour and smug Stone Phillips inside the camera-rigged house. Many of the men are stunned into docility by the surreality of it all--their illicit sexual encounter has abruptly morphed into This is Your Life--and agree to be interviewed on television. Immediately after, a team of police inside a van parked in front of the house spring out and arrest the still-stunned interviewee. This show creeped me out from day one, and only partly due to the depicted behavior of the suspects.

Let me make clear that I'm not expressing sympathy for these men--they should be held accountable. I do find some aspects of this operation disturbing, however. For one thing, like Law & Order: SVU, the show is getting a ton of ratings mileage from the very thing it is lordly sneering at, the titillation inherent in the possibility of an illicit sexual encounter. Not that all its ratings derive from this, but it's hard to conclude otherwise based on the thin content offered up by the show. The show is just one gotcha moment after the last, with Stone Phillips essentially prying out a sentencing allocution from the accused immediately before they're arrested. It's exploitation made worse by the absence of any socially redeeming features ... made even worse because the show hinges on the proposition that it furthering a social good (alerting a community to potential criminals is a good, but the national audience suggests a broader purpose--"humilitainment," as Defamer puts it).

And this brings me to my second problem--by formally assuming a law enforcement role minus the legal wherewithal, NBC jeopardizes the local prosecutor's ability to convict any of these guys. So they've stopped bothering. From an April 2006 Washington Post story [no link, story from Lexis]:

Von Erck said his group's members [the group being Perverted-Justice.com, which worked alongside NBC for the Catch a Predator series] have helped identify hundreds of alleged pedophiles through Internet stings. The group, which began in 2002, also claims to have provided police with information that led to 100 arrests and 50 convictions in 25 states. "We turn up great evidence that stands up in court," he said.

But that claim is disputed by the group Corrupted Justice, whose mission includes counteracting the work of Perverted Justice, and is based near Ottawa. A spokesman for Corrupted Justice said much of Perverted Justice's efforts are counterproductive because most of the people it exposes suffer no legal consequence and remain free to prey on children. Perverted Justice's members also have mistakenly identified and harassed innocent people but are not held accountable because they operate anonymously, typically using computer screen names, Corrupted Justice spokesman Scott Morrow said.

"The fact is, these people are amateurs," Morrow said. "They're volunteers, with no official training, no training in law enforcement, no training in the rules of evidence, no idea about maintaining evidence so it can be used in court. They shop this stuff around, and most of the time local law enforcement tells them, 'We can't use it.' "

Morrow said NBC's involvement with Perverted Justice is particularly troubling: "They're manufacturing the news, rather than just reporting it. They're not only working with untrained, anonymous vigilantes, but now they're paying them, too." He said NBC could do stories on what police departments and the FBI are doing to hunt down pedophiles without resorting to "questionable" tactics. [emphasis added throughout]

Shortly after that story ran, the district attorney from a Dallas suburb where a large chunk of NBC stings took place refused to prosecute any of the men because many of the cases were "tainted by the involvement of amateurs."

Chris Hansen (the other Stone Phillips), has stated that 117 convictions or guilty pleas have resulted from 286 arrests during the show's 3 year run, but it would be difficult to check those possibly self-serving numbers. Even so, that's not a fantastic clearance rate. And the fact that more than half the suspects walked suggests that the half that didn't walk may have had inadequate counsel, since the facts arising from these stings are basically identical.

Then there's a third problem: What happens when NBC, imbued with faux-muckraking self-importance, forages past their already sketchy ethics boundaries? In the same Texas district mentioned above, where the prosecutor refused to charge any of the suspects, one answer is apparently suicide. A $105m lawsuit was filed against NBC by the sister of a Texas prosecutor from a neighboring district who chose to kill himself rather than guest star on NBC.

Louis "Bill" Conradt Jr., who did not go to the Murphy sting house, shot himself in the head after Murphy police and other North Texas officers forced their way into his Terrell home in November. NBC was outside with cameras.

Conradt didn't even walk into the sting house--he stayed home after allegedly soliciting sex from an undercover posing as a 13 year old boy. Under Texas law, a suspect does not have to show up--the deliberate planning of a meeting alone is sufficient for a conviction. But this raises a problematic question concerning the lack of an actus reas. How does one go from typing his dirty thoughts to a stranger to suicidal in a manner of an hour?

The issue in the case will be negligence--whether suicide was a foreseeable result of NBC's actions. Where I might answer the question in the negative if it regarded one of the suspects who showed up at the sting house, I'm less sure how I'd answer the question where, as here, it regards a suspect who did not show up, was about to endure a raid on his house by the police and media, and whose innocence was more probable.

Finally, there's the overarching (and thorniest) problem where televised justice and its lower due process standards competes with the judicial system. While TV can't put you in jail, it's probably true that it could ruin the life of an innocent in a manner worse than actual imprisonment could not--especially where an infamously heinous crime such as pedophilia is concerned, and the matter is publicized nationally. The initial publication of a story is often also the end of the story--NBC's primetime newsmagazine show might be seen by a million people, few of whom will ever see those suspects again.

This post is not to suggest regulations on any party or industry--I realize that behind door one is more than a little First Amendment friction. But the problem of pedophilia could certainly be tackled by NBC in a manner far less exploitative and protective of individual rights.

posted by scott pilutik at July 25, 2007 04:07 PM

digg  |  del.icio.us  |  reddit
permalink

July 17, 2007

Did senators also heckle the Hindu clergyman?

Granted, this comes from the NY Post's Page Six, but if true, these "unidentified lawmakers" should be identified.

We Hear . . .

THAT a couple of U.S. senators were rude and unruly last week when Majority Leader Harry Reid had a Hindu chaplain for the first time say the opening prayer. The unidentified lawmakers heckled the saffron-robed clergyman as he prayed to the "transcendental glory of the deity supreme" . . .

posted by scott pilutik at July 17, 2007 11:22 AM

digg  |  del.icio.us  |  reddit
permalink

July 13, 2007

firth of fifth solo

This piano solo, from an early Genesis album called Selling England by the Pound, is one of my favorite pieces of music, and also serves as the default ringtone on my cellphone. I poked around youtube and found a sizable community taking a stab at it. No one flat out nails it, but this woman comes pretty close.

posted by scott pilutik at July 13, 2007 11:04 PM

digg  |  del.icio.us  |  reddit
permalink

Congressional Prayer Goes Off-Message

I've long believed that the supposedly non-denominational prayers spoken before each Congressional session is as clear a violation of the establishment clause as has been, well, established. Yet the tradition/ritual has persisted for as long as memory serves, and has been explicitly validated by the Supreme Court in Marsh v. Chambers, 463 U.S. 783 (1983) (a 6-3 decision), where C.J. Burger wrote:

In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society. To invoke Divine guidance on a public body entrusted with making the laws is not, in these circumstances, an "establishment" of religion or a step toward establishment; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country. [emphasis added]

posted by scott pilutik at July 13, 2007 12:27 AM

digg  |  del.icio.us  |  reddit
permalink

July 12, 2007

The One True Truth

In response to the Pope's recent grenade lob at non-Catholic entities ("Despite the fact that this teaching [Protestantism] has created no little distress ... it is nevertheless difficult to see how the title of 'Church' could possibly be attributed to them"), Atrios makes perfect sense:

While religious tolerance is a wonderful thing, overall the whole ecumenical "we're (believers) all on the same Judeo-Christian team" crap has been a horribly bad development. Keep the tolerance, cut the whole "we all basically agree" crap. We don't. We disagree.

When one believes in evolution, no value or little value is put on human life, and there's no accountability to a higher being, so an atheist needs to just believe in something just a little bit in order to kill since the act of murder is taken so lightly by atheists. God's prohibitions against killing and threats of hell are like a tall wall to religious folks keeping them from killing, but what keeps atheists from killing amounts to a mere speed bump.

posted by scott pilutik at July 12, 2007 07:10 AM

digg  |  del.icio.us  |  reddit
permalink

July 09, 2007

Carl Bernstein

This post is made with a specific eye toward Google-boosting a client, the legendary journalist Carl Bernstein, whose site I recently designed and built. Ordinarily, people who own the domain name of their own name are given great deference by Google, but Carl has an uphill climb due to the fact that a fairly massive amount of material already exists (640,000 returns) for the exact name "Carl Bernstein." I added the site to his Wikipedia page, but figure it couldn't hurt to also point back to Carl Bernstein from here.

posted by scott pilutik at July 9, 2007 06:59 AM

digg  |  del.icio.us  |  reddit
permalink

July 04, 2007

The New Pornographers @ Battery Park / July 4th

It was drizzly and not exactly warm, but The New Pornographers were great (and free) yesterday at Battery Park. They played a lot of material from their soon-forthcoming album 'Challengers'.

Neko Case

Carl Newman

Kathryn Calder

Neko Case, Todd Fancey

Neko Case, Todd Fancey, Carl Newman

posted by scott pilutik at July 4, 2007 10:24 PM

digg  |  del.icio.us  |  reddit
permalink

Olbermann special comment on Bush's commutation of Libby sentence

Olbermann's angriest and most eloquent "Special Comment" yet

posted by scott pilutik at July 4, 2007 09:27 AM

digg  |  del.icio.us  |  reddit
permalink

July 03, 2007

Commmentary on Flast and Hein

In 1968, the Supreme Court (in Flast v. Cohen) identified a narrow exception to the standing doctrine, which essentially requires plaintiffs to suffer some injury traceable to the Constitutional violation being alleged.  Although taxpayers do not generally have standing to challenge laws passed by Congress, an exception was made for taxpayers alleging an establishment clause violation, so long as the alleged violation derived from Congress's exercise of its taxing and spending power, and that Congress exceeded its limitations upon that taxing and spending power.

If this sounds circular, confusing, and somewhat legally fictitious, it's probably because it is. But the court was grappling with a difficult issue, one that pitted a substantive prohibition on government action (the establishment clause) against Article III's administrative limitations on the types of cases a court can hear.  How could the government otherwise be constrained from violating the Constitution if the court didn't exercise judicial review?

Flast represented a compromise on that question--on one hand, prohibiting the case from moving forward would reveal a constitutional blind spot, because of the inherent nature of establishment clause cases, where individual injuries of the type imagined by Article III are often indiscernible (especially where funds are simply disbursed). On the other hand, the court was wary to arm taxpayers with the right to sue the government at its whim. The court "solved" the problem, in essence, by permitting the case before it to move forward, and then constructing a narrow and arbitrary exception for others to move forward, coincidentally resembling the facts in Flast.

The Flast majority, written by Chief Justice Warren is practically devoid of any policy considerations--why these narrow exceptions? Why have an exception at all?  Justice Douglas, in concurrence, ably takes on the policy questions, arguing that Flast should have been broadened to account for as yet unimagined constitutional violations, lest such violations be normalized by the political branches. Justice Stewart, also concurring, drew attention to the relationship between the taxpayer and government spending on religion, relying on James Madison's explicit admonition that the twain shant meet:

Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? that the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?

As a result of C.J. Warren's failure to imbue Flast with any principled rationale, Flast has since been generally confined to its facts, as the government has since sought and indeed found other ways to fund and endorse religious groups.  This brings us to this week, and the court's decision in Hein v. Freedom From Religion Coalition, which presented a very Flast-like problem: Does a taxpayer have standing to sue the executive branch for appropriations that allegedly endorse religion?

Last Tuesday, the Supreme Court answered no, 5-4. For Justice Alito, writing for a plurality (along with Roberts and Kennedy), the task was simple-- Flast concerned a legislative apportionment, and Hein concerned an executive apportionment, Flast does not therefore apply, let's go home.  He utterly fails to address why it should matter which branch of the government is violating the constitution, a point hammered home by both Scalia in concurrence (Thomas joined), and Souter in dissent (Stevens, Ginsburg, and Breyer joined). One criticism of Alito and Roberts from the left has been a failure to uphold their vow to follow precedent, but Alito’s Hein plurality opinion slavishly clung to a precedent that makes as little sense now as it did when C.J. Warren arbitrarily set it in stone.

The six justices comprising the concurrence and dissent all agreed that the Flast holding is ridiculous, but disagree on whether it should (as the concurrence believes) be eliminated entirely so that Article III’s standing requirement is without exception, or (as the dissent believes), be broadened so as to actually prevent the government from violating the constitution. The difference in opinion ultimately comes down to which constitutional provision, between the two, each Justice believes is more important.

Scalia firmly believes in the sanctity of Article III and sees Flast as an outlying blemish on the otherwise reliable doctrine of standing. “Generalized grievances affecting the public at large” were not intended to be settled by the courts and instead “have their remedy in the political process.” Structurally, executive branch spending does seem like it should be a political question rather than a judicial question. The problem with that approach is that constitutional violations arising under the establishment clause will often be unsolvable through the political process, especially as here, where executive branch largesse is bestowed upon a religious majority, who are unlikely to rise up and vote out their bestowers.

Where a substantive constitutional admonition such as the establishment clause is in such sharp conflict with the Article III standing requirement, the standing requirement should be the one to budge so that the substantive prohibition not remain so vulnerable and free to violate without remedy.

Flast is a bad opinion with good intentions. Its standing exception is narrowly drawn and it fails to explain the necessity of is narrowness, nevertheless hinting at an unsavory litigation stampede if it were broadened (fear mongering which was reprised in Hein). The concurring Douglas argued that addressing the constitutional violation was the most important consideration--let the trial courts sort out frivolous claims. Douglas feared a growing legislative and executive branch majoritarian-controlled bureaucracy directing "mounting federal aid to sectarian schools," prophetically noting that the "subterfuges [were] numerous." Unless the court left its doors open to individuals lacking powerful sponsors, such as churches or unions, Douglas noted, he/she was certain to be 'plowed under.'

In Hein, Justice Souter assumes the Douglas/Souter/Fortas mantle in Flast, stressing the explicit role the establishment clause played in the minds of the framers as a check on government spending for religious purposes, even citing specifically to Madison’s Memorial and Remonstrance, cited here above, as did the Flast concurrers.

Hein was a chance to rectify an inherent blind spot in the constitution that simply permits, by the plurality's reading, establishment clause violations to flourish unabated. And so, just like in school vouchers, a new subterfuge and administrative work-around has been legitimized, just as Douglas warned. Souter notes the same: “if the Executive could accomplish through the exercise of discretion exactly what Congress cannot do through legislation, Establishment Clause protection would melt away.” It’s not clear why Souter is speaking in the future tense here—he’s writing in dissent in the case that just went a long way to melting it.

Ultimately, Article III standing should not turn on awkward and ill-fitting distinctions between physical and mental, or wallet or psyche, as Scalia’s proposes (and as Souter asks, how do employment discrimination and racial district gerrymandering fit into either?). I’m not myself sure what it should turn on actually. But perhaps it should back up a bit and look to the language that dictates the standing doctrine to begin with: Article III permits the judiciary to hear only “cases or controversies.” Where the government endorses particular religious groups with direct funds and almost no oversight—indeed, where it hands over the social welfare system to favored religious groups, as Bush’s Office of Faith Based Initiatives has done—this is a controversy in dire need of judicial review, because religious minority liberty interests haven’t a chance turning to the political process, which was the entire point of Hein to begin with.

posted by scott pilutik at July 3, 2007 12:39 AM

digg  |  del.icio.us  |  reddit
permalink