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A Texas Grand Jury Recently Cleared 2 White Cops Who Beat a Black Woman in Jail

| Wed Dec. 3, 2014 7:28 PM EST

In another recent case involving a grand jury, white cops, and a black civilian, a grand jury in the east Texas town of Jasper, about two hours from Houston, chose last month not to indict two police officers for the brutal beating of Jasper resident Keyarika Diggles. Diggles had been arrested and jailed in May 2013 over an unpaid $100 parking ticket (which, it turned out, she had been paying in installments.) As you can see in the surveillance video below, at some point officers Ricky Grissom and Ryan Cunningham grab Diggles, slam her head on the counter, pull her hair and drag her across the floor by her feet:

According to the Texas Observer, the officers proceeded to drag Diggles into a dark "detox cell," where her lawyers said she spent hours before being strip-searched by another officer. Here's more from the Observer on the aftermath of the attack:

Diggles settled a civil rights lawsuit against the city and the officers last December for $75,000. And less than a month after the incident, Jasper’s city council voted to fire Cunningham and Grissom. That alone was a stronger response than many allegations of police brutality get, and Jasper Mayor Mike Lout said the council would work with the district attorney to consider criminal charges against the officers. Lout and other city leaders stressed that the Diggles case wasn't a sign of some deeper racial divide in the city, but an isolated incident with the perpetrators swiftly punished.

"We are shocked by the failure of the prosecutor to get an indictment," said Cade Bernsen, Diggles' attorney. "I'm wondering what investigation was done because the video speaks for itself."

According to records obtained by the Observer, Cunningham was hired to join the Jasper County Sheriff's Office in September.

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There Are Damn Few Shades of Gray in the Death of Eric Garner

| Wed Dec. 3, 2014 6:42 PM EST

I may have mixed feelings about Ferguson, Ray Rice, and the UVA rape case, but God almighty, that's not a problem with the killing of Eric Garner, is it? We have a trivial offense, a minuscule level of "resisting arrest," a banned chokehold, five cops around, no life-threatening situation by any stretch of the imagination, and yet—one dead guy, who spent the last minute of his existence pleading for his life. But despite all that, along with a medical examiner's judgment of homicide by chokehold, there's no indictment of the police officer responsible.

This is not like Ferguson. Regardless of how you feel personally about what happened there, I think there was virtually no chance that officer Darren Wilson would ever have been convicted in the death of Michael Brown. The evidence was just too inconsistent and the standard for guilt too high. That makes it at least arguable that the grand jury did the right thing when it failed to indict.

Nothing like that can be said here. Daniel Pantaleo, the police officer who applied the chokehold to Garner, might have won a trial, but he might have lost it too. That being the case, there's little excuse for not letting a jury do its job and make a finding of fact in this case. Instead, Garner's death was treated as little more than an annoyance to be swept away. If we needed any evidence that police officers can pretty much kill anyone they want with impunity, this is it.

5 Times the Supreme Court Tried to Understand Pop Culture

| Wed Dec. 3, 2014 5:20 PM EST

Justice Ruth Bader Ginsburg's fans might refer to her as The Notorious RBG, but when it comes to understanding rap culture, the Supreme Court has some catching up to do. That was clear on Monday, when the justices heard arguments in Elonis v. United States, a case about whether gory, rap-style rhymes posted on Facebook by a Pennsylvania man constituted a real threat to his estranged wife.

Lawyers for Anthony Elonis asserted that his posts should be read as creative self-expression. (Some sample lyrics: "There's one way to love you but a thousand ways to kill you. I'm not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.") Justice Samuel Alito didn't seem convinced that these lines weren't menacing. "This sounds like a road map for threatening a spouse and getting away with it," he said. "So you put it in a rhyme…and you say, 'I'm an aspiring rap artist,' and so then you are free from prosecution." Those comments are consistent with how judges and jurors tend to think about rap lyrics—they're likely to see them as autobiographical and literally true, even though many rappers assume fictional personas.

The Elonis case isn't the first time the Supreme Court has grappled with what constitutes legitimate artistic expression. From declaring that movies can be broadly censored because they could be "used for evil" to deciding that G-strings don't limit nude dancers' freedom of expression, the past results have been decidedly mixed. Here's are the justices' most offbeat efforts to play art critic:

 

1. Mutual Film Corporation v. Industrial Commission of Ohio, 1915

The facts: An Ohio law required anyone who wanted to show a film to get permission from a board of censors, who charged for approval. Mutual Film Corporation, a motion picture company best known for producing Charlie Chaplin comedies, didn't want to pay. It argued that its movies were protected by the First Amendment because of their power to enlighten and entertain.

It took until 1952 for the court to decide that film had proved itself "a significant medium for the communication of ideas."

The outcome: The justices unanimously sided with the state on the grounds that movies were a business, not an art form—and that they could corrupt the hearts and minds of innocent children. "They, indeed, may be mediums of thought, but so are many things," wrote Justice Joseph McKenna. "They may be used for evil, and against that possibility the statute was enacted. Their power[s] of amusement…make them the more insidious." It took until 1952 for the court to decide that film had proved itself "a significant medium for the communication of ideas."

 

2. United States v. Thirty-seven Photographs, 1971

The facts: Customs agents at the Los Angeles airport stopped Milton Luros on his way home from Europe and confiscated 37 photos of couples having sex, based on a 1930 law banning the importation of obscene material. Luros claimed that the photos, which he'd planned to use to illustrate a copy of the Kama Sutra, shouldn't have been confiscated because they were for private use.

The outcome: The court concluded that Luros' right to privately possess obscene material didn't extend to the airport. "A port of entry is not a traveler's home," Justice Byron White wrote. But Justice Hugo Black, a First Amendment absolutist, penned a scathing dissent. "I can imagine no more distasteful, useless, and time-consuming task for the members of this Court than perusing this material to determine whether it has 'redeeming social value,'" he seethed.

(What's with the weird name: Cases in which a federal court seizes property are traditionally named after the item seized, not the item's owner—hence the epic-sounding 2011 case U.S. v. One White Crystal-Covered ‘Bad Tour' Glove and other Michael Jackson Memorabilia.)

 

3. Barnes v. Glen Theatre, Inc., 1991

The facts: Two exotic dance clubs in South Bend, Indiana, wanted to add completely naked dancers to their lineup. State law required that the dancers wear at least pasties and a G-string. The clubs sued, arguing that the law infringed on the dancers' freedom of expression.

Medal of Honor and Resident Evil 4 were delivered to the court so justices could see what playing a video game was like.

The outcome: No redress for the would-be strippers. The fact that the nakedness would have been consensual didn't matter to Justice Antonin Scalia, who wrote, "The purpose of Indiana's nudity law would be violated, I think, if 60,000 fully consenting adults crowded into the Hoosierdome to display their genitals to one another, even if there were not an offended innocent in the crowd."

 

4. National Endowment for the Arts v. Finley, 1998

The facts: After a scandal over artists receiving federal funding—including Andres Serrano, whose 1987 photo Piss Christ depicted a crucifix submerged in a jar of urine—Congress added "taking into consideration general standards of decency" to the NEA's grant requirements. Performance artist Karen Finley, whose work involved covering her naked body with chocolate, sued the government after her grant application was denied. She argued that the new grant requirements suppressed unorthodox ideas.

The outcome: Congress wasn't regulating speech, just setting funding priorities, Justice Sandra Day O'Connor wrote for the majority. She noted that the amendment didn't preclude "indecent" art from receiving grants; it "simply adds 'considerations' to the grant-making process."

 

5. Brown v. Entertainment Merchants Association, 2011

The facts: EMA, a trade association for the home entertainment industry, challenged California's ban on the sale of violent video games to minors. Before the justices heard the case, they had copies of Medal of Honor and Resident Evil 4 delivered to the court so they could figure out what playing a video game was like.

The outcome: The gaming experience must have won the justices over. They ruled that video games deserved First Amendment protection, overturning California's law. "Like the protected books, plays and movies that preceded them, video games communicate ideas—and even social messages—through many familiar literary devices... and through features distinctive to the medium," Scalia wrote in his pro-gamer majority opinion.

Grand Jury Doesn't Indict Staten Island Cop in Death of Eric Garner

| Wed Dec. 3, 2014 2:47 PM EST

Update 12/3/2014: Attorney General Eric Holder reportedly told New York City Mayor Bill de Blasio the Department of Justice will conduct a federal investigation into Eric Garner's death, following a grand jury's decision not to indict NYPD officer Daniel Pantaleo. 

A Staten Island grand jury has declined to indict NYPD officer Daniel Pantaleo in the death of Eric Garner.

The "no-bill" decision comes despite the fact that Pantaleo was caught on camera putting Garner in a chokehold during his July 17 arrest.

Cell-phone video of Garner’s July 17 arrest shows Pantaleo wrestling him to the sidewalk on Bay Street, with the white cop’s arms wrapped around the neck of the black suspect.

On the ground, Garner was heard repeatedly yelling “I can’t breathe!” as Pantaleo and other cops held him down and handcuffed him.

The Medical Examiner’s Office ruled Garner’s death a homicide caused by “compression of neck (chokehold), compression of chest and prone positioning during physical restraint by police.”

Police union leaders denied that Pantaleo used a chokehold — which is banned by the NYPD — and blasted the autopsy as part of a “political” witch hunt.

The fact that this video exists, that the cop saw it being recorded, that the grand jury watched it and then still declined to indict, should chasten anyone who thinks body cams will be a cure-all for police abuse.

Read about the science of implicit prejudices and what we can do to better train police.

April 23rd Is the Saddest Day of the Year

| Wed Dec. 3, 2014 2:30 PM EST

According to Google—sort of—the saddest times of the year are spring and fall. Weird. Click here for the explanations, which seem a bit ad hoc to me. I mean, less light? Then why is winter such a happy time? Not to mention spring. "As it turns out," the article explains, "lengthening daylight may discombobulate people's chemical regulatory system." So....less light is bad. But more light can also be bad. And winter is OK even though it has the least light of all. This might all be true, but it's sure a bit of a chin scratcher.

And the unhappiest day of the year in 2014 was April 23. WTF? I could understand April 15. But what's the deal with the 23rd? Anybody got a theory? Am I missing something here?

The Problem With the Ferguson, Ray Rice, and UVA Rape Stories

| Wed Dec. 3, 2014 1:36 PM EST

What do these three recent stories have in common?

  • Ferguson
  • Ray Rice
  • The University of Virginia gang rape

One thing they have in common is that I've written little or nothing about them. But they share two other attributes as well. Here they are:

  1. All three have spotlighted problems that are critically important and absolutely deserving of broader attention. Ferguson is all about racial disparities, police killings of unarmed civilians, the militarization of law enforcement, and other equally deserving issues. Ray Rice was about the scourge of domestic violence and its tacit acceptance within the culture of professional sports. The UVA rape story was about sexual assault on university campuses, fueled by alcohol, fraternities, and official lack of concern.
     
  2. However, the specific incidents in all three cases are, to say the least, less than ideal as poster children for these issues. We will never know for sure what happened to Michael Brown, but as evidence has dribbled out, the simple liberal narrative of a gentle teenager being gunned down while trying to surrender has seemed less and less credible. In the Ray Rice case, it's clear that Rice did something terrible—but as it turns out, the evidence suggests that the criminal justice system treated him fairly reasonably and that the NFL's actions were mostly a craven reaction to public opinion. Finally, in the UVA rape scandal, a number of credible questions have been raised about whether Rolling Stone's account of what happened was fair—or, in the worst case, even true.

If you're curious about why I've been relatively quiet about these stories, that's why. All of them spotlight issues that I think are well worth spotlighting, and I don't really relish the thought of doing or writing anything that might dilute their power. These are all things that I want people to pay more attention to, not less, and if you want the world to change you have to be willing to exploit the events you have, not the events you wish you had.

And yet, the specific fact patterns of each specific case are genuinely problematic. To pretend otherwise is to be intellectually dishonest.

I've dealt with this by not saying much. That's not exactly an act of moral courage, is it? And yet, with the facts as hazy as they are, I'm just not sure what else to do. Perhaps the answer is to stop worrying about it: Just accept that we live in a messy world and sometimes the events that have the most impact aren't clear cut. But you use the events anyway in an effort to grab public attention and improve the world a bit, even if that sometimes means a few individuals end up being treated unfairly in some way. Perhaps.

I don't know—though I'm struck that three such similar events have occurred in just the past few months. But I'm still not sure whether I should have reacted differently. I just don't know.

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The Fracking Boom Could End Way Sooner Than Obama Thinks

| Wed Dec. 3, 2014 1:00 PM EST
A natural gas rig outside Fort Worth, Texas.

President Obama is fond of touting America's vast trove of natural gas—and the energy (read: economic growth) it can provide—as a reason to support fracking. "Our 100-year supply of natural gas is a big factor in drawing jobs back to our shores," he told a gathering at Northwestern University in October.

You can hear that same optimism about US natural gas production from Democrats, Republicans, and of course, the industry itself. The conviction that America can fuel its economy by churning out massive amounts of natural gas for decades has become a core assumption of national energy policy. But what if it's wrong?

Those rosy predictions are based on official forecasts produced by the Energy Information Administration, an independent federal agency that compiles data on America's energy supply and demand. This spring, EIA chief Adam Sieminski told a Senate hearing that he was confident natural gas production would grow 56 percent between 2012 and 2040. But the results of a series of studies at the University of Texas, reported today in an article in the journal Nature, cast serious doubt about the accuracy of EIA's forecasts.

The UT team conducted its own analysis of natural gas production at all four of the US's major shale gas formations (the Marcellus, Haynesville, Fayetteville, and Barnett), which together account for two-thirds of America's natural gas output. Then, they extrapolated production into the future based on predicted market forces (the future price of gas relative to other fuels) and known geology. Their analysis suggests that gas production will peak in 2020, 20 years earlier than the EIA predicts. What's more, the UT researchers project that by 2030, gas production levels will be only half of EIA's prediction.

The difference in opinion stems from a difference in the scale of the analyses. The UT team's grid for each shale play studied was at least 20 times finer than EIA's, according to Nature:

Resolution matters because each play has sweet spots that yield a lot of gas, and large areas where wells are less productive. Companies try to target the sweet spots first, so wells drilled in the future may be less productive than current ones. The EIA's model so far has assumed that future wells will be at least as productive as past wells in the same county. But this approach, [UT-Austin petroleum engineer Ted] Patzek argues, "leads to results that are way too optimistic".

Why do these numbers matter? The federal government, states, and the private sector all base their energy investments—research and development, infrastructure construction, etc.—on forecasts of where our energy will come from in the future. If natural gas really is super-abundant, there may be less urgency to invest in renewables like solar and wind to replace coal plants as they age or are regulated out of existence. But if there's less recoverable natural gas than we think, we'll need to change our strategy to avoid coming up short on power 20 years down the line. At the same time, there are international repercussions: Many countries are taking cues from the United States on how to develop their own natural gas resources, so what happens here will shape those plans as well. And a series of massive natural gas export facilities are already being proposed across the US to ship our gas overseas; what will happen to global markets if those run dry prematurely?

Because they rely on informed guesses about future market conditions, these forecasts can never be bulletproof, and the UT study doesn't close the book on how much natural gas the US really has in store. But it's an important reminder that we should treat politicians' promises about fossil fuel wealth with skepticism.

Tea Partiers Ignore Michele Bachmann's Call for Rally Against "Amnesty"

| Wed Dec. 3, 2014 12:23 PM EST
Rep. Michele Bachmann (R-Minn.) and Tea Party Patriots cofounder Jenny Beth Martin (left) in front of the Supreme Court in 2012

On November 20, minutes after President Barack Obama delivered a speech explaining his executive action on immigration reform that would protect millions of undocumented immigrants from deportation, Rep. Michele Bachmann (R-Minn.) took to Fox News and called on tea partiers everywhere to come to Washington to protest.

Bachmann, the head of the House tea party caucus who is retiring from Congress in weeks, implored the audience to help her fight the "amnesty." She urged them to "melt the phone lines" to congressional lawmakers. And she declared she would be leading a protest on Capitol Hill. "I'm calling on your viewers to come to DC on Wednesday, December 3, at high noon on the west steps of the Capitol," she proclaimed. "We need to have a rally, and we need to go visit our senators and visit our congressman, because nothing frightens a congressman like the whites of his constituents' eyes…We need the viewers to come and help us."

The next day, the Tea Party Patriots, one of the largest remaining tea party groups, sent out an urgent survey to its members. The email, signed by cofounder Jenny Beth Martin, said the group—which has worked closely with Bachmann in the past to organize other rallies at the Capitol—was trying to determine whether such a rally would be a good use of its resources. The email asked these "patriots" to indicate whether they would respond to Bachmann and come to Washington to protest the president's actions on immigration. Apparently, the answer was no. The Tea Party Patriots did not sign up for this ride.

With the tea party not heeding Bachmann's call, her "high noon" rally was downgraded to…a press conference. So on Wednesday, Bachmann appeared on the Capitol steps—joined by Sen. Ted Cruz (R-Texas) and Rep. Steve King (R-Iowa)—and spoke to a passel of cameras and about 40 protesters. Here's a picture of the crowd:

tiny protest
Stephanie Mencimer

What happened to her big protest? Bachmann's office did not respond to a request for comment. A TPP spokesman said in an email that the "gathering in Washington is not a Tea Party Patriots event per se, but we are fully in favor of it and have encouraged our supporters in the area to come out if they can."

The lackluster response to Bachmann's high-noon call is a far cry from five years ago, when the congresswoman made a similar appeal on Fox for a protest against Obamacare. She asked for tea partiers to hit Capitol Hill and tell legislators "don't you dare take away my health care." And the fledgling tea party movement responded enthusiastically. The Koch-backed Americans for Prosperity dispatched dozens buses full of activists—29 just from New Jersey. FreedomWorks, then headed by former House majority leader Dick Armey, organized more. Glenn Beck promoted the event. Thousands of people showed up, as did the entire GOP House leadership. The momentum generated from that rally helped the GOP in the 2010 midterm elections.

Bachmann, after a failed run for the White House, is spending her last days on the Hill writing listicles for BuzzFeed. And even before her final day as a congresswoman, Bachmann, with this non-rally, seems a has-been.

Tell Me, Chuck: What Should Dems Do To Win Back the Middle Class?

| Wed Dec. 3, 2014 11:16 AM EST

A longtime reader writes: "Hope you'll weigh in on Edsall on Schumer and the Dems 'destroying' the party over Obamacare."

Well, OK. But I don't have an awful lot to say. Basically, Sen. Chuck Schumer thinks it was a mistake to focus on Obamacare in 2009. Instead, Democrats should have focused like a laser on the economy, and in particular, on helping the working and middle classes. Instead, Dems passed yet another social welfare program that mostly helps the poor, demonstrating yet again that they don't really care much about the middle class.

Yesterday, Tom Edsall weighed in on this. He didn't really take a political position of his own, but he did present a bunch of evidence that Schumer was substantively correct. That is, Obamacare really does help mainly the poor, and Democrats really have done very little for the middle class lately.

So what's my view? Well, I've written about this before, and I'd say that on a technical level Edsall is exactly right. On the upside, Obamacare does help the working and middle classes a bit, partly because its subsidies are available even to those with relatively high incomes and partly because of its other provisions. For example, its guarantee that you can get affordable coverage even if you have a preexisting condition is something that helps everyone. If you're middle class and you lose your job, that provision of Obamacare might be a lifesaver.

Still, there's no question that Obamacare helps the middle classes only at the margins. Most of them already have employer health coverage, and the ones that end up buying coverage through the exchanges get only small subsidies. I happen to think that Obamacare will eventually be the foundation for a program of universal health care that genuinely appeals to everyone, the same way that Social Security does, but that's in the future. It doesn't really help Democrats now.

So I agree with Edsall about the technical distribution of Obamacare benefits. And I also agree with Schumer that Democrats need to do more to appeal to the working and middle classes. So that means I agree with their basic critique. Right?

Nope. Not even slightly. You see, the core of the critique isn't merely that Democrats should do more for the middle class. It's specifically that Democrats should have done more in 2009 for the middle class. But this is the point at which everything suddenly gets hazy. What should Obama have done in lieu of Obamacare? Paul Krugman has it exactly right:

When people say that Obama should have “focused” on the economy, what, specifically, are they saying he should have done?....What do they mean? Obama should have gone around squinting and saying “I’m focused on the economy”? What would that have done?

Look, governing is not just theater. For sure the weakness of the recovery has hurt Democrats. But “focusing”, whatever that means, wouldn’t have delivered more job growth. What should Obama have done that he actually could have done in the face of scorched-earth Republican opposition? And how, if at all, did health reform stand in the way of doing whatever it is you’re saying he should have done?

In broad terms, I agree with Schumer's critique. Democrats need to do more to appeal to the working and middle classes, not just the poor. But Schumer is maddeningly vague about just what that means. And as it relates to 2009, in particular, he's full of hot air. In the first few months of the year, Obama passed a big stimulus. He rescued the auto industry. He cut everyone's payroll taxes.

Should Obama have done more? Oh my, yes. His pivot to the deficit in mid-2009 was dumb. And by far the biggest smoking gun of unfinished business was something to rescue underwater homeowners. But let's be serious: even if Obama had supported a broad rescue effort, it wouldn't have mattered. Congress wasn't on board, and I doubt very much that anything could have gotten them on board. The politics was just too toxic. Never forget that the mere prospect of maybe rescuing underwater homeowners was the issue that set off Rick Santelli's famous CNBC rant and led to the formation of the tea party movement. I wish things were otherwise, but bailing out underwater homeowners was simply never in the cards.

Beyond that, Democrats have a much bigger problem than even Schumer acknowledges. It's this: what can they do? That is, what big ticket items are left that would buy the loyalty of the middle class for another generation? We already have Social Security and Medicare. We have Obamacare. We have the mortgage interest deduction. What's left?

There are smallish things. Sometime people point to college loans. Or universal pre-K. I'm in favor of those things. But college loans are a stopgap, and the truth is that the rising price of college for the middle class is mainly a state issue, not a federal one. And universal pre-K simply doesn't yet have enough political support. (It's also something that would most likely benefit the poor much more than the middle class, but leave that aside for the moment.)

So I'll ask the same question I've asked before. I'm all in favor of using the power of government to help the middle classes. But what does that mean in terms of concrete political programs that (a) the middle class will associate with Democrats and help win them loyalty and votes, and (b) have even a snowball's chance of getting passed by Congress? Expansion of Social Security? Expansion of Medicare? Bigger subsidies for Obamacare? Universal pre-K? A massive infrastructure program? Let's get specific, and let's not nibble around the edges. Little programs here and there aren't going to make much difference to the Democrats' political fortunes. Nor will heroic but vague formulations about rescuing unions or raising taxes on the wealthy by a few points.

So tell me. What should they have done in 2009 that was actually feasible? What should they do now? Let's hear it.

After 45 Years, "The Velvet Underground" Stands the Test of Time

| Wed Dec. 3, 2014 6:00 AM EST

The Velvet Underground
The Velvet Underground—45th Anniversary Super Deluxe Edition
Polydor/Universal Music Enterprises

Following the radical and overpowering White Light/White Heat, the Velvet Underground's third, self-titled, album initially seemed like a lesser effort, but it has more than stood the test of time. With cofounder and main creative foil (or foe) John Cale out of the band, leader Lou Reed assumed complete control, crafting a set of relatively understated songs that range from rockin' ("What Goes On") to surprisingly gentle ("After Hours").

At six discs, 65 tracks, and five hours of music, this behemoth collection offers plenty to savor (although casual fans might prefer the two-disc distillation). If three different mixes of the original album suggests overkill, the mono version does reveal different textures to the music, while a fourth disc of sessions for an abandoned fourth album contains a slew of genuine gems, including the raucous "I'm Gonna Move Right In," a touching "She's My Best Friend," and an early look at the Reed standard "Rock & Roll."

The final two discs, featuring live performances from November 1969, are simply terrific, highlighted by the exuberant "We're Gonna Have a Real Good Time Together," a 30-minute-plus take on "Sister Ray" and the anthemic "Sweet Jane." Nearly a half-century later, the raw heart and tender soul of the Velvet Underground are wondrous indeed.