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We’re Going to Execute a Man Who Subpoenaed Jesus While Representing Himself Wearing a Purple Cowboy Suit

by Aracely82H Posted on October 15, 2014

Mother Jones

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Four years before he murdered his in-laws in Texas, Scott Panetti buried some furniture in his yard. The devil, he claimed, was in it. After he was arrested and charged with the killings, Panetti, who has a history of severe mental illness, represented himself at his capital trial wearing a purple cowboy suit. He called himself “Sarge” and subpoenaed Jesus, among other notables. He lost, of course. The jury found him guilty and sentenced him to death.

The case made its way though the appeals courts, eventually reaching the United States Supreme Court, which in 2007 ruled that the state of Texas hadn’t adequately evaluated whether Panetti’s mental condition allowed him to fully understand the nature of his punishment—a constitutional prerequisite for the death penalty. The court stayed the execution and sent the case back for further proceedings.

Seven years later, Panetti’s illness hasn’t gone away, but the Supreme Court has given Texas the green light to kill him. The court’s decision, announced on October 6 without comment, upheld a 5th Circuit Court of Appeals ruling that Panetti was sane enough for execution. The appellate court’s decision, in turn, was based in part on the opinion of a Florida psychiatrist who has deemed at least three Florida death row inmates with long and well-documented histories of mental illness to be sane enough for the needle.

The details in this story, gleaned from hundreds of pages of court documents and other official filings, indicate that Scott Panetti was no malingerer. He began showing signs of serious mental illness in 1981, back when he was still a teenager. By 1992, he had been diagnosed with paranoid schizophrenia, delusions, auditory hallucinations, and manic depression, and had been hospitalized 14 times.

In 1990, for instance, he was involuntarily committed after swinging a cavalry sword at his wife and daughter and threatening to kill his family. He made good on the threat two years later, when he shaved his head, donned camo fatigues, broke into his in-laws’ house and shot them both at close range in front of his estranged wife and infant daughter. After turning himself in, Panetti blamed the crime on Sarge, one of his recurring hallucinations. God, he said, had ensured that his victims hadn’t suffered.

Panetti refused to cooperate with his lawyers, who he claimed were conspiring with the cops. In jail, he went off his meds, apparently convinced, as a Gnostic Nazarene, that he’d found a spiritual cure.

At the trial, serving as his own lawyer, Panetti rambled incoherently through his defense. Among the hundreds of people he sought to subpoena were not only the Messiah, but John F. Kennedy and the Pope as well. Two jurors later told one of Panetti’s lawyers that his behavior had so frightened them that they voted for death largely to make sure he’d never get out of prison. (Texas at that time did not offer the option of life without parole.)

Detail from a subpoena request Panetti filed on July 3, 1995

Two months after his sentencing, Panetti tried to waive his right to a lawyer for the appeal—a move tantamount to suicide. But this time, a judge refused his request, ruling that he was not mentally competent to make that choice.

Panetti may have been too incompetent to ditch his lawyer, but in 2003 a Texas state court determined, without a hearing, that he was sane enough to kill. His lawyers appealed to the federal district court, and the case ultimately landed before the Supreme Court, where Texas Solicitor General (and now US Senator) Ted Cruz defended the state’s right to put Panetti down.

In past rulings, the Supreme Court has banned the execution of juveniles and people with intellectual disabilities. And while the court also has ruled that the Constitution forbids executing the severely mentally ill, the justices have been wary of laying down guidelines to determine, in effect, how crazy is too crazy.

A blanket ban on executing the mentally ill would have the effect of clearing out a big chunk of America’s death row: A study published in June in the Hastings Law Journal looked at the 100 most recent executions and found that 18 of the condemned were diagnosed with schizophrenia, PTSD, or bipolar disorder, while 36 more had other serious mental-health problems or chronic drug addiction that in many cases rendered them psychotic.


Mercy for Some: 13 Men Condemned to Die Despite Profound Mental Illness

By failing to offer clear guidance, the court gave psychiatrists great power in deciding who lives and who dies. The legal history isn’t pretty. Consider the case of Albert Fish, who was dubbed the “Brooklyn Vampire.” In 1935, Fish was convicted and sentenced to death for strangling a 10-year-old girl. Not only did he confess to the killing, he admitted to having cooked the child’s body with bacon and vegetables and eaten it over the course of nine days. He was suspected in at least five other murders.

A famous psychiatrist determined that Fish had major psychoses that manifested not just in cannibalism, but a host of other perversions and sadomasochistic behaviors—including eating his own feces and sticking pieces of alcohol-soaked cotton into his anus and setting them on fire. When he was arrested, X-rays showed 29 needles embedded in his groin area.

That psychiatrist testified at trial that Fish was legally insane, but his opinion was lost in a flood of testimony from prosecution doctors who declared Fish entirely competent. One even defended the feces consumption as “socially perfectly all right.” Fish was executed in 1936.

In theory at least, the courts have since evolved to take a somewhat dimmer view of killing people whose tenuous grasp on reality makes a mockery of the supposed deterrent effect of capital punishment.

In 1986, in the case of Ford v. Wainright, the Supreme Court first ruled that a very narrowly defined set of inmates with major mental illnesses were ineligible for execution thanks to the Constitution’s “cruel and unusual” clause. The 5-4 opinion was the handiwork of Justice Thurgood Marshall, who had spent a good part of his career representing capital defendants.

Yet the high court was conflicted over where to set the limits. Science seems never to have been part of the equation, and the court’s opinion is colored by fears that murderers would fake mental illness to escape execution. Marshall sought to exempt from execution any prisoner so profoundly impaired that, as Alvin Ford had been, he was incapable of assisting in his own defense.

Had Marshall prevailed, Panetti surely would not be on death row now. But the legal test ended up being defined more loosely by Justice Louis Powell, the swing vote in Ford’s favor. Powell suggested that mentally ill inmates could win a reprieve if they could prove they are “unaware of the punishment they’re about to suffer and why they are to suffer it.” The court left the states to work out the messy details of what that vague standard should mean in practice. The result has been a steady stream of executions of profoundly mentally ill people, some of whom—like Ricky Ray Rector, an Arkansas man whose execution Bill Clinton left the campaign trail to oversee in 1992—were literally missing pieces of their brains.

“Competence to be executed is an extremely low standard,” explains Phillip Resnick, the director of forensic psychiatry at Case Western Reserve University. “All you need to know is you’re going to be executed and why. You can be quite psychotic and still know those two things.”

The Panetti case seemed poised to change that. When the Supreme Court sent the case back to Texas in 2007, it instructed the lower court to ensure not only that Panetti was aware he was going to be executed, but that he also had a “rational understanding” of the facts of his execution. The landmark ruling was supposed to tighten up the vague standard for competency established in the Ford case. In practice, though, it wasn’t much of an improvement.

At the time of the Supreme Court’s decision, the 5th Circuit Court of Appeals, which covers the busy death penalty states of Texas, Louisiana, and Mississippi, had never found someone ineligible for execution on the basis of insanity. And so it remains today.

The Panetti case illustrates how such a situation could be. After the Supreme Court punted it back to Texas, state officials subjected Panetti to further evaluation. Among the doctors hired to assess his mental state was Alan Waldman, a forensic psychiatrist and neurologist living in Gainesville, Florida.

Waldman had spent part of his early career working for the Florida Department of Corrections. In the late 1990s, he worked as a senior physician in a state facility. In 1999, according to court records, he quit that job when he faced the prospect of being terminated. According to court testimony, the state credentialing board was considering revoking his privileges and had questions about his response to a complaint by the spouse of a client.

Waldman refused to answer questions for this story, directing his secretary to tell me that he would not talk to me under any circumstances and “don’t call back.” But in a court appearance in an unrelated lawsuit, he was questioned about his employment history. He asserted that the credentialing board’s investigation of him was based on a frivolous complaint by a “wife beater,” and that he had left his job to avoid the hassle of legal proceedings and the risk of a poor outcome when he said he’d done nothing wrong. “This happens when you’re a psychiatrist,” he testified. “You treat disturbed people and they sometimes make complaints.”

Today, Waldman works as an expert witness in civil and criminal cases, mainly in Florida. He holds himself out as an expert in the detection of malingering, or feigning symptoms of mental illness. But during a 2007 hearing in the Panetti case, he admitted that he’d never published anything on the subject in a peer-reviewed journal—the only published work listed in his public CV since 1993 is an article titled “The Misuse of Science,” which appeared in the “Domestic Violence and Sex Offender Prosecutor Association Newsletter.”

In three death penalty cases, Florida governors have appointed Waldman to commissions evaluating the mental competency of the condemned. All of the prisoners, like Panetti, had long histories of mental illness predating their crimes, and in all three cases, Waldman deemed them legally sane. In two cases, he concluded that the inmate was faking his symptoms.

An infamous case in point is that of Thomas Provenzano, who became the catalyst for a national effort to beef up courthouse security in more trusting times. Provenzano went around claiming he was Jesus long before he killed anyone. He would sign job applications “Jesus Christ” and show pictures of Jesus to his nephews and nieces, whispering, “That’s me.” According to his sister, Catherine Forbes, “a five-year-old kid could tell my brother had mental problems.”

In the mid-1970s, Provenzano had checked himself into a mental hospital because he was hearing voices, but he was released. In 1981, his sister pleaded with doctors at the hospital to commit him, but they said they couldn’t do anything to help. By 1983, it was clear that Provenzano’s mental state was deteriorating. One day, after being reported for behaving erratically in public, he led police on a car chase and was stopped and arrested for disorderly conduct.

After his arrest, Provenzano started hanging out at the courthouse, obsessing over his legal file and the police officers who’d apprehended him. He began dressing like Rambo and, in early 1984, told his nephew he was going to blow up the Orlando police department. Shortly thereafter, he smuggled three guns into the courthouse, where he shot and killed a man and critically injured two other people before a sheriff shot him in the back. In the ambulance en route to the hospital, he yelled, “I am the son of God! You can’t kill me.”

In 1999, Jeb Bush, then the governor of Florida, signed Provenzano’s death warrant and appointed a competency commission that included Waldman. After conducting an evaluation, Waldman reported back that the prisoner was faking his illness.

Forbes, Provenzano’s sister, was shocked. She told me tearfully that her brother had spent 17 years on death row sleeping under his cot with a box on his head because he was hearing voices. She doubts any sane person could fake symptoms for so long: “Would you sleep 17 years with a box on your head, or under your cot?”

In May 2000, the Florida Supreme Court sided with the commission. The state executed Provenzano the next month.

About six months after the execution, Gainesville police arrested Waldman for aggravated assault. According to the police report, court records, and an interview with the alleged victim, Waldman was engaged in a bit of road rage. He was driving behind a woman who was a teenager at the time. Waldman cut in front of her at a red light, and she believed he’d clipped the front of her purple Saturn. But rather than pull over, she said, he took off when the light changed.

Incensed, she followed him home to try to get his insurance information. According to the police report, Waldman then walked from his front door to the roadside armed with an AK-47 to confront the woman. He pointed the gun at her through her car window, she told me: “He was so close I could feel him spitting at me.”

She drove away and called the police, only to discover that Waldman had reported her first and that the police were looking to arrest her. Waldman had told them he was “scared for his life,” she said. But after corroborating the gist of her story, the police arrested Waldman instead. She decided not to press charges, but said she’s still traumatized by the episode.

Since his arrest, Waldman has continued to serve on mental competency commissions for Florida death row inmates. In 2012, he evaluated John Ferguson, a prisoner with a 40-year history of paranoid schizophrenia who had once been represented pro bono by John Roberts Jr., now chief justice of the US Supreme Court. Ferguson had killed eight people after he was released from a mental institution over the dire warnings of state doctors who said Ferguson was homicidal and “should not be released under any circumstances.”

Right up through his execution day in the summer of 2013, Ferguson insisted that he was the “prince of God.” Yet after a 90-minute interview, Waldman and his colleagues deemed him sane enough to execute.

Texas paid Waldman $250 an hour for his assessments in the Panetti case and $350 an hour for his testimony. At first, Panetti had refused to talk to Waldman, and when he eventually agreed, he wasn’t especially cooperative. For example, Waldman wrote that Panetti insisted on calling him “Dr. Grigson.” The late James Grigson was the discredited Texas psychiatrist featured in the Errol Morris film The Thin Blue Line. Known as “Dr. Death,” he had a long record of testifying in capital trials, where he invariably argued that the defendant was an incurable sociopath who would certainly kill again if allowed to live.

For much of the evaluation session, Panetti answered Waldman’s questions with Bible quotes. He made up stories and claimed that John F. Kennedy had once cleaned his burns. He talked like a cowboy. He said the other inmates hated him because he preaches the Gospel. (Waldman, who had interviewed some of the other death row inmates, informed Panetti that they didn’t like him because “he screams and yells and is constantly disturbing the unit by preaching the Gospel.”) Panetti also talked about burying the possessed furniture in his yard, and claimed “Sergeant Iron Horse” was his in-laws’ real killer.

The interview, Waldman wrote, demonstrated that Panetti has “organized” thoughts, and that he is very coherent most of the time—especially when asked about the Bible. Panetti had hoped to “sabotage” the interview, Waldman noted, and displayed no evidence of mental illness. Waldman also dismissed Panetti’s descriptions of his hallucinations and his claims about the furniture, writing, “One also must wonder, what furniture did Mr. Panetti in fact bury, a sofa?” He said the prisoner’s repeated references to Dr. Grigson further proved that he was malingering.

By the time defense lawyers got a chance to question Waldman at Panetti’s competency hearing, the psychiatrist had run up a $23,000 invoice for the state. (The federal courts, meanwhile, had allotted Panetti just $9,000 for all of his experts.) But the cross-examination revealed crucial gaps in Waldman’s knowledge. The furniture incident, for instance, had been well documented by witnesses. Their accounts were in Panetti’s medical records and had been introduced as exhibits in court.

In any case, Waldman argued, burying furniture was a “questionable” symptom of mental illness. Furthermore, he suspected that Panetti’s mother had coached her son to bring up Grigson—that Panetti had “premeditated” the whole thing as a way to “handle” his examiner. Defense attorney Kathryn Kase informed him, however, that Grigson had in fact testified at Panetti’s trial—and Panetti, representing himself, had cross-examined him. He had been obsessed with Grigson ever since. Waldman hadn’t known any of this, he admitted.

Waldman also conceded that he hadn’t given Panetti a single test or standard psychological exam, even though such things—including a test for malingering schizophrenia—not only exist, but are used regularly in his field.

Kase tried to inquire about the AK-47 incident, and whether Waldman had reported any acts of “moral turpitude” when he applied for the temporary medical license required for him to work for the state of Texas. But the judge cut off that line of inquiry and eventually ruled against Panetti, deeming him eligible for execution.

Panetti’s lawyers appealed, arguing that he still hadn’t received a fair hearing on his competency as the Supreme Court had ordered six years earlier. “Paradoxically,” they wrote, “Panetti must invoke the Supreme Court’s decision in his own case to vindicate his right—now a second time—to rudimentary due process in an execution competency proceeding.”

The 5th Circuit Court of Appeals ruled against Panetti anyway, quoting Waldman at length in its August 2013 ruling—even though Waldman was the only expert who testified at the competency hearing that Panetti was not, in fact, sick:

The State’s chief expert—Dr. Waldman—doubted that Panetti suffered from any form of mental illness and was “emphatic in his opinion that Panetti has a rational understanding of the…connection between his crime and his execution.”

Last week, the United States Supreme Court agreed.

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We’re Going to Execute a Man Who Subpoenaed Jesus While Representing Himself Wearing a Purple Cowboy Suit

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How We Learn – Benedict Carey

by Myrna Posted on October 10, 2014

READ GREEN WITH E-BOOKS

How We Learn

The Surprising Truth About When, Where, and Why It Happens

Benedict Carey

Genre: Psychology

Price: $11.99

Publish Date: September 9, 2014

Publisher: Random House Publishing Group

Seller: Random House, LLC


In the tradition of The Power of Habit and Thinking, Fast and Slow comes a practical, playful, and endlessly fascinating guide to what we really know about learning and memory today—and how we can apply it to our own lives.   From an early age, it is drilled into our heads: Restlessness, distraction, and ignorance are the enemies of success. We’re told that learning is all self-discipline, that we must confine ourselves to designated study areas, turn off the music, and maintain a strict ritual if we want to ace that test, memorize that presentation, or nail that piano recital.   But what if almost everything we were told about learning is wrong? And what if there was a way to achieve more with less effort?   In How We Learn, award-winning science reporter Benedict Carey sifts through decades of education research and landmark studies to uncover the truth about how our brains absorb and retain information. What he discovers is that, from the moment we are born, we are all learning quickly, efficiently, and automatically; but in our zeal to systematize the process we have ignored valuable, naturally enjoyable learning tools like forgetting, sleeping, and daydreaming. Is a dedicated desk in a quiet room really the best way to study? Can altering your routine improve your recall? Are there times when distraction is good? Is repetition necessary? Carey’s search for answers to these questions yields a wealth of strategies that make learning more a part of our everyday lives—and less of a chore.   By road testing many of the counterintuitive techniques described in this book, Carey shows how we can flex the neural muscles that make deep learning possible. Along the way he reveals why teachers should give final exams on the first day of class, why it’s wise to interleave subjects and concepts when learning any new skill, and when it’s smarter to stay up late prepping for that presentation than to rise early for one last cram session. And if this requires some suspension of disbelief, that’s because the research defies what we’ve been told, throughout our lives, about how best to learn.   The brain is not like a muscle, at least not in any straightforward sense. It is something else altogether, sensitive to mood, to timing, to circadian rhythms, as well as to location and environment. It doesn’t take orders well, to put it mildly. If the brain is a learning machine, then it is an eccentric one. In How We Learn, Benedict Carey shows us how to exploit its quirks to our advantage.   Praise for How We Learn   “ How We Learn makes for a welcome rejoinder to the faddish notion that learning is all about the hours put in. Learners, [Benedict] Carey reminds us, are not automatons.” — The New York Times Book Review   “The insights of How We Learn apply to far more than just academic situations. Anyone looking to learn a musical instrument would benefit from understanding what frequency and type of practice is most effective. Even readers with little practical use for Carey’s information will likely find much of it fascinating, such as how intuition can be a teachable skill, or that giving practice exams at the very beginning of a semester improves grades. How We Learn is a valuable, entertaining tool for educators, students and parents.” — Shelf Awareness “This book is a revelation. I feel as if I’ve owned a brain for fifty-four years and only now discovered the operating manual.” —Mary Roach, bestselling author of Stiff and Gulp From the Hardcover edition.

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Here’s How Russia and China Are Teaming Up to Shape Our Future

by ColemanPermewan Posted on October 6, 2014

Mother Jones

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This story first appeared on the TomDispatch website.

A specter haunts the fast-aging “New American Century”: the possibility of a future Beijing-Moscow-Berlin strategic trade and commercial alliance. Let’s call it the BMB.

Its likelihood is being seriously discussed at the highest levels in Beijing and Moscow, and viewed with interest in Berlin, New Delhi, and Tehran. But don’t mention it inside Washington’s Beltway or at NATO headquarters in Brussels. There, the star of the show today and tomorrow is the new Osama bin Laden: Caliph Ibrahim, aka Abu Bakr al-Baghdadi, the elusive, self-appointed beheading prophet of a new mini-state and movement that has provided an acronym feast—ISIS/ISIL/IS—for hysterics in Washington and elsewhere.

No matter how often Washington remixes its Global War on Terror, however, the tectonic plates of Eurasian geopolitics continue to shift, and they’re not going to stop just because American elitesrefuse to accept that their historically brief “unipolar moment” is on the wane. For them, the closing of the era of “full spectrum dominance,” as the Pentagon likes to call it, is inconceivable. After all, the necessity for the indispensable nation to control all space—military, economic, cultural, cyber, and outer—is little short of a religious doctrine. Exceptionalist missionaries don’t do equality. At best, they do “coalitions of the willing” like the one crammed with “over 40 countries” assembled to fight ISIS/ISIL/IS and either applauding (and plotting) from the sidelines or sending the odd plane or two toward Iraq or Syria.

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Here’s How Russia and China Are Teaming Up to Shape Our Future

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Supreme Court To Decide if Judges in 30 States Can Solicit Campaign Cash

by KalaISJPiau Posted on October 6, 2014

Mother Jones

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The US Supreme Court has agreed to hear a case that could overturn 30 states’ bans on judges personally seeking campaign contributions. In Lanell Williams-Yulee v. The Florida Bar, a county-level judicial candidate was publicly reprimanded by the Florida Supreme Court in May and forced to pay $1,860 in court costs for signing a fundraising letter during the 2009 election, according to her petition. The court also rejected her argument that the decision violated her First Amendment rights, saying that the state’s ban is constitutional “because it promotes … the integrity of the judiciary and maintains the public’s confidence in an impartial judiciary.”

As Williams-Yulee notes, this issue is quite common in that there are hundreds of judicial elections each year. In 2011 and 2012 there were high court elections in 35 states that contested 75 open seats, along with an additional 243 intermediate appellate court races in 29 states. These races are becoming increasingly more expensive: During just those two years, state high court, appellate and lower court judicial candidates raised more than $110 million, according to the National Institute On Money In State Politics (state judicial candidates raised just $83 million total in the 1990s). Justice At Stake, a liberal judicial election watchdog group, points out that 20 states have surpassed records for judicial election spending since 2000. Independent spending on judicial elections is also booming, with more than $24 million being spent in the 2011-12 cycle compared to just $2.7 million a decade earlier.

Of the 39 states that hold judicial elections, 30 have some sort of ban, and 22 are blanket bans similar to Florida’s.

Retired US Supreme Court Justice Sandra Day O’Connor talked with Mother Jones this summer about problems with money pouring into judicial elections. O’Connor opposes judicial elections in general—she’d prefer judges be appointed after being nominated by a commission and then stand for retention elections—because she says increasing amounts of money in the races skews the information voters see about judges that “often comes from misleading and even nasty campaign ads.”

“Campaign contributions impact the extent to which citizens believe that judicial decisions are based on the law rather than other factors, such as to whom a judge might feel beholden,” O’Connor said. “In my mind, judicial campaign support—whether it involves direct contributions or independent spending—automatically creates an appearance of impropriety when supporters are involved in court cases.”

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Supreme Court To Decide if Judges in 30 States Can Solicit Campaign Cash

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Did Crazy Luck Help Cigarette Makers Sidestep These Gruesome Warning Labels?

by CandiceKuefer Posted on September 29, 2014

Mother Jones

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Talk about luck.

Back in 2009, Congress passed landmark legislation directing the US Food and Drug Administration to regulate tobacco products, which according to the Centers for Disease Control kill at least 480,000 Americans each year—more than were killed in battle in all of our foreign wars combined. Among the agency’s early moves was a ban on candy- and fruit-flavored cigarettes, which were assumed to attract children.

Judge Richard J. Leon

Over the past five years, however, cigarette and e-cigarette companies have filed three major lawsuits against the Food and Drug Administration to halt the imposition of rules intended to make their products less appealing to consumers—and less accessible to kids.

The three cases, which involved, among other things, graphic warning labels, FDA oversight of e-cigarettes, and the use of menthol, were all decided in the industry’s favor by Richard J. Leon, a US District Court judge in Washington, DC, whose rulings have demonstrated concern about government overreach and a tone of deep skepticism toward the FDA’s legal positions. “Please! This conclusion defies common sense,” he wrote, dismissing one of the agency’s arguments.

Given how cases are normally assigned, the fact that Leon was assigned to all three is extraordinary—and extraordinarily good luck for the industry, which currently, for example, remains free of federal restrictions on selling candy-flavored e-cigarettes to children.

How extraordinary? Well, the District Court assigns cases randomly among its regular judges, plus several senior judges with reduced caseloads. According to the court, there were 13 regular judges on hand when two of the cases were filed, and 9 regular judges available when the third was filed. The odds of the cases being randomly assigned to any one judge—1 in 13, 1 in 13, and 1 in 9—put the chance of a single judge drawing all three FDA cases at 1 in 1,859. With senior judges in the draw, the odds would be even more remote.

Just an unlikely coincidence, court officials say. Nothing more. It would be “indefensible,” said Greg Hughes, the court’s chief deputy clerk for operations, for anyone to bend the assignment rules. The situation “does stretch the bounds of credulity,” he acknowledged, but the complaints were indeed randomly assigned. “That’s what the system’s telling me, and I have to put faith in the system.”

The court does have a “related case” process: The filing lawyer is supposed to inform the court when the case in question is closely related to another case under the court’s jurisdiction. Also, a judge who is randomly assigned a case may request its transfer to a colleague who has handled a very similar case in the past. But court officials told me that neither of those things happened with the FDA cases, and my review of the docket supports that.

Judge Leon joined the court in 2002 after being nominated by President George W. Bush. He is considered something of a maverick conservative, and has come down hard on federal agencies in other cases. In December 2013, for instance, he ruled that the National Security Agency’s bulk collection of phone records of United States citizens is probably unconstitutional. It’s unclear whether another judge would have ruled differently in the FDA cases—two of which have been held up on appeal. (An appeal of the third case is pending.)

Leon declined to be interviewed for this story, as did officials with the FDA and Justice Department—which represents the agency in court. Tobacco industry lawyers either did not return my calls or declined to be interviewed.

But the tobacco control advocates I reached were somewhat incredulous. It seems “very, very strange that somebody who has demonstrated a sustained hostility to the federal regulation of tobacco products keeps getting assigned to these cases,” said Richard Daynard, a Northeastern University law professor and chairman of the Boston-based Tobacco Products Liability Project. “It certainly leaves one wondering what is going on.”

Matthew L. Myers, president of the Campaign for Tobacco-Free Kids, told me that the impact of these rulings has been “enormous.” Leon “has fundamentally altered the FDA’s authority and ability to carry out its congressional mandate,” he said. “It has had a direct effect on what has happened with e-cigarettes, and the fact that the United States still has among the weakest warning labels in the entire world.”

“But,” Myers added, “there is no evidence of wrongdoing. You can’t point to anything. I wish I could.”

Legal authorities had to agree. “The odds are long,” said Andrew Bradt, an assistant professor and expert on litigation procedure at the UC-Berkeley School of Law, “but I would have no basis for saying there’s any shenanigans going on.”

Alan B. Morrison, a George Washington University law professor with extensive litigation experience in the DC District Court, concurred that the odds were “quite astounding.” But given the outcome of the appeals to date, he doubts anything happened that “is evil or malicious or affecting outcome.”

Leon’s decisions have stymied federal oversight in the following areas:

E-cigarettes: In 2009, the FDA tried to halt a shipment of e-cigarettes into the US on the grounds that the products—which produce nicotine vapor without burning tobacco—were unapproved drug-delivery devices. E-cigarette marketers sued the agency. In January, 2010, Judge Leon issued an injunction saying the FDA lacked authority to regulate e-cigarettes as drug-delivery devices because the marketers weren’t making therapeutic claims. The ruling was affirmed on appeal.

Almost five years later, e-cigarettes (along with similar devices called “vape” pens or hookah pens that can be used to ingest nicotine) are still exempt from FDA oversight. Although the vapors e-cigarettes produce appear to be less harmful than tobacco smoke, nicotine is extremely addictive. Health officials fear kids who get hooked using the devices may well graduate to smoking.

Indeed, according to a recent CDC study, more than a quarter of a million middle and high school students who had never smoked said they had used e-cigarettes in 2013. And because the devices are unregulated, they aren’t bound by federal age limits, bans on kid-friendly flavorings, or advertising restrictions. In April, the FDA finally issued a proposed rule that would give it the authority to regulate e-cigarettes as tobacco products (as opposed to drug-delivery devices), but that rule won’t become final until next year at the earliest.

Graphic Warning Labels: The 2009 antismoking legislation directed the FDA to create bold pictorial warnings for cigarette packs that would replace the small text warnings that have been unchanged since the 1980s. Seventy-four countries and territories around the world require such graphic warnings, according to survey data from the Canadian Cancer Society, but the United States, with the world’s biggest tobacco control program, still doesn’t have them.

In June, 2011, the FDA ordered the use of nine rotating warnings designed to cover 50 percent of cigarette packages. The images included things like diseased lungs and a cadaver on an autopsy table.

Five tobacco companies, including RJ Reynolds and Lorillard—the second and third leading cigarette makers—filed a lawsuit claiming the mandate violated their First Amendment rights. Judge Leon sided with the companies, ruling that the labels were “more about shocking and repelling than warning,” and amounted to an “impermissible expropriation of a company’s advertising space for Government advocacy.” A federal appeals court upheld the decision in August 2012.

The FDA has gone back to the drawing board to develop new warnings that will pass legal muster. But officials aren’t saying when they will be proposed.

Menthol Cigarettes: The 2009 tobacco control act also directed the FDA to create an expert panel—the Tobacco Products Scientific Advisory Committee to study whether menthol cigarettes pose more of a risk to public health than non-menthol brands. In a July 2011 report, the panel concluded that menthol, which anesthetizes the throat against the harshness of the smoke, likely makes it easier for teens and young adults to take up smoking.

Lorillard and RJ Reynolds sued to invalidate the report, complaining that several panel members had conflicts of interest because they had served as consultants to pharmaceutical companies developing smoking cessation products and had served as witnesses in anti-tobacco lawsuits.

This July, Judge Leon ruled that panel members Neal Benowitz and Jack Henningfield, both renowned addiction experts, and Dr. Jonathan Samet, an editor on several Surgeon General reports, had conflicts that “fatally tainted” the panel and the menthol report. He ordered the FDA to reorganize the committee, and forbade it from considering the panel’s findings. The agency has filed a notice of appeal.

A version of this story was published concurrently by FairWarning.org, a nonprofit investigative news organization focused on public health, safety, and environmental issues.

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Did Crazy Luck Help Cigarette Makers Sidestep These Gruesome Warning Labels?

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How Australia Became the Dirtiest Polluter in the Developed World

by KKMBrigette Posted on September 26, 2014

Mother Jones

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This story originally appeared in Slate and is republished here as part of the Climate Desk collaboration.

Australians like to think of themselves as green. Their island country boasts some 3 million square miles of breathtaking landscape. They were an early global leader in solar power. They’ve had environmental regulations on the books since colonial times. And in 2007 they elected a party and a prime minister running on a “pro-climate” platform, with promises to sign the Kyoto Protocol and pass sweeping environmental reforms. All of which makes sense for a country that is already suffering the early effects of global warming.

And yet, seven years later, Australia has thrown its environmentalism out the window—and into the landfill.

The climate-conscious Labor Party is out, felled by infighting and a bloodthirsty, Rupert Murdoch–dominated press that sows conspiracy theories about climate science. In its place, Australians elected the conservative Liberal Party, led by a prime minister who once declared that “the climate argument is absolute crap.”

In the year since they took office, Prime Minister Tony Abbott and his Liberal-led coalition have already dismantled the country’s key environmental policies. Now they’ve begun systematically ransacking its natural resources. In the process, they’ve transformed Australia from an international innovator on environmental issues into quite possibly the dirtiest country in the developed world. And in a masterful whirl of the spin machine, they’ve managed to upend public debate by painting climate science as superstition and superstition as climate science. (We should note here that one of us grew up in Australia.)

The country’s landmark carbon tax has been repealed. The position of science minister has been eliminated. A man who warns of “global cooling” is now the country’s top business adviser. In November, Australia will host the G-20 economic summit; it plans to use its power as host to keep climate change off the official agenda.

If the environment has become Australia’s enemy, fossil fuels are its best friend once again. Two months after it struck down the carbon tax, the government forged a deal with a fringe party led by a mining tycoon to repeal a tax on mining profits. It appointed a noted climate-change skeptic—yes, another one—to review its renewable energy targets. Surprise: He’s expected to slash them. Independent modeling in a study commissioned by the Climate Institute, Australian Conservation Foundation, and WWF-Australia finds that the cuts to renewable energy won’t reduce Australians’ energy bills. They will, however, gift the country’s coal and gas industry another $8.8 billion US

At a time when solar power is booming worldwide, sunny Australia is rolling back its state-level subsidies (despite domestic success) and canceling major solar projects. Meanwhile, the government has given the go-ahead to build the nation’s largest coal mine, with an eye toward boosting coal exports to India.

Did we mention that Australians’ per-capita carbon emissions are the highest of any major developed country in the world? Welcome to the Saudi Arabia of the South Pacific. No, Australia isn’t a theocracy, and oil isn’t the source of its fossil-fuel riches. But it is the world’s second-largest exporter of coal and third-largest exporter of liquefied natural gas, and minerals and fuels account for nearly 50 percent of its export revenues. Its per-capita carbon emissions actually exceed those of Saudi Arabia. And its behavior of late is beginning to bear an ugly resemblance to those petro-states whose governments seem to exist chiefly to guarantee the spectacular profits of the fossil-fuel industry.

The skies aren’t the only realm that Australia is rapidly polluting. After all, the waste that the country is dredging up in new mines and coal port expansions has to go somewhere. Why not dump it on the Great Barrier Reef? (This month, facing a PR disaster, the mining consortium in charge of that particular project reversed its decision and will likely request permission to dump the dredge inland instead.)

The carbon tax became Australia’s equivalent of Obamacare.

“Let’s see,” Australian leaders must wake up wondering every morning: “What natural wonder could we trash today?” At the top of that list is the pristine Tasmanian Wilderness World Heritage Area, nearly two-thirds of which the new government pledged to open to commercial logging. Environmentalists argued the logging would harm threatened species such as the swift parrot, the wedge-tailed eagle, and the iconic Tasmanian devil. Those concerns were waved aside by the state government, which, like the federal government, is controlled by the Liberals. Fortunately, their plans were thwarted when UNESCO rebuffed their attempt to repeal the forest’s World Heritage protections.

How the Liberals and their coalition partners have undone so many environmental policiesin such a short time is a study in the power of biased media and irrational thinking.

From the moment the pro-climate Labor Party took power in 2007, opposition leaders and pundits made its environmental policies the focal point of their political attacks. Even environmental policies established under previous Liberal regimes became politically polarized as conservatives recast environmental policies as “job-destroyers.” The carbon tax turned into Australia’s equivalent of Obamacare as the opposition sought a wedge with which to pry apart the Labor Party’s coalition with the environmentally focused political party, the Greens. In some ways, environmental policies are even more vulnerable to being cast as job-killers than health care policies are, because the benefits are less tangible to the individual.

But Abbott and his allies haven’t just turned the public against environmental regulations with threats of economic doom. They’ve also worked hard to shake the public’s trust in climate science. And they’ve done it in a way that would surprise most Americans: by comparing environmentalists to religious kooks.

Green politicians, climate change activists, and even scientists have been painted as modern incarnations of a hated early-20th-century Australian archetype: the holier-than-thou, anti-gambling, anti-alcohol religious wowser. Someone who, according to professor Ken Inglis, “prayed on his knees on Sunday and preyed on his neighbours the rest of the week.”

This line of attack began as early as 2010, when Abbott was in the parliamentary opposition. In a television interview, he said of then–Labor Prime Minister Kevin Rudd’s climate change policies, “I am not as evangelical about this as Prime Minister Rudd is. I am not theological about this the way Prime Minister Rudd is.”

In a 2012 op-ed titled “Losing their religion as evidence cools off,” in Rupert Murdoch’s national newspaper, the Australian, Abbott’s top business adviser wrote: “When Mother Nature decided in 1980 to change gears from cooler to warmer, a new global warming religion was born, replete with its own church (the UN), a papacy, (the Intergovernmental Panel on Climate Change), and a global warming priesthood masquerading as climate scientists.”

Embracing the analogy, the former Liberal Prime Minister John Howard gave a speech at a U.K. fracking conference in 2013 titled “One religion is enough,” in which he called action on climate change “a substitute religion.” Interestingly, while the global-warming-as-religion line probably wouldn’t play as well stateside, it seems that the US-based think tank the Heartland Institute has played a key role in funding Australia’s denial movement.

Also instrumental in sowing doubt and apathy has been Rupert Murdoch’s News Corp., which owns about two-thirds of Australia’s metropolitan press and the dominant dailies in most state capitals. According to a study by the Australian Centre for Independent Journalism, coverage of the former Labor government’s climate-change policies by News Corp. papers was 82 percent negative.

Even so, belief in climate change remains relatively high among Australian voters. According to a 2014 Lowy Institute poll, 45 percent of Australians now see global warming as a “serious and pressing problem,” up 5 points since 2013. (Forty percent of Americans believe it to be a major threat, a 2013 Pew Research poll found.) But belief is not the same as action.

The conservatives’ cultivated agnosticism about climate issues is abetted by the nation’s general indifference about what happens in the “Outback.” Australians have long turned a blind eye toward the 70 percent of the country that is arid bushland and the small number of people who live there. Global mining companies like Rio Tinto run desert fiefdoms in the Northern Territory that are larger than Washington, D.C. The miners themselves—largely fly-in, fly-out workers—barely live in the remote, often indigenous, communities of Western Australia, the Northern Territory, or Queensland whose land they’re gutting and whose small towns they’re destroying. Many commute from Sydney and Melbourne, or even New Zealand and Bali.

Historically, this apathy extends beyond mining. In the 1950s and early 1960s, the government allowed the British to conduct nuclear tests and blast Western Australia’s Monte Bello Islands and parts of South Australia. And just this August, the conservative minister for defense told US Secretary of State John Kerry that the American military was “welcome to use the ‘open spaces’ of the Northern Territory” for their bases and military exercises. (There’s been a US Marine base in Darwin for years.) Imagine the United States gifting Alaska to the Canadian army for war games.

There are some who would like to estrange this swath of the country even further from Australia’s coastal population centers. Mining magnate Gina Rinehart, one of the richest women in the world, has lobbied for the continent’s northern third to be declared a “special economic zone” with reduced taxes, a lower minimum wage, and scant regulation.

If Australians have grown apathetic toward the use of their country, it is fair to point out that it seems equally apathetic toward them. Beautiful as it is, it’s a harsh land in which to make a home. It’s often on fire, usually in drought, and when the streams aren’t bone dry, they’re flooding—all natural disasters that are already being exacerbated by global warming.

Let’s hope that the rapacious policies of the current government represent only a temporary bout of insanity. If the Australian people cannot recover some of their earlier regard for their environment, they may find in time that their great land is no longer merely apathetic toward their residence there, but openly hostile.

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How Australia Became the Dirtiest Polluter in the Developed World

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Live: Inside the UN Climate Talks

by Myrna Posted on September 23, 2014

President Obama is among the world leaders talking about climate change today in New York City. Climate Desk will be covering the UN climate conference throughout the day. Watch all the action above, and check out our live updates below. Master image: Ad Meskens/Wikimedia Commons [View the story “Live: Will World Leaders Finally Confront the Climate Crisis?” on Storify] View this article:  Live: Inside the UN Climate Talks ; ; ;

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Live: Inside the UN Climate Talks

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The Supreme Court May Be About to Save—or Destroy—Gay Marriage

by Chet66Bkpm Posted on September 15, 2014

Mother Jones

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Supporters of gay marriage have been on a roll: In the past year, federal courts across the country have nullified same-sex marriage bans in more than a dozen states.

Yet these victories are complicated by the lack of a national legal standard on gay marriage: For now, it remains a state-level question. But that could change if the US Supreme Court steps in. Last week, the high court announced that it will review a package of seven gay-marriage cases from five states in late September when it chooses which cases to consider in their 2014-2015 term.

Legal experts say it’s likely that the court will hear at least one of the cases. “I think they’re going to take a case,” says Dale Carpenter, a professor of civil liberties law at the University of Minnesota law school. “The only question is which one. They know whichever they take, it’s going to be momentous.”

This cluster of cases centers on two key questions: All seven ask SCOTUS to consider whether a state law limiting marriage to a union between a man and a woman violates the 14th Amendment. Six of the seven cases also raise the question of whether states must recognize same-sex marriages performed in other states.

The Supreme Court ruled on two landmark gay marriage cases in 2013: Hollingsworth v. Perry, which overturned California’s Proposition 8, and US v. Windsor, which invalidated the Defense of Marriage Act. But neither weighed in on the constitutionality of same-sex marriage bans, leaving the choice to allow gay marriage up to each individual state. If the court takes one of these new cases, it’s likely that its decision will have a broad and more definitive impact. “Should they decide that the 14th Amendment actually protects the rights of same-sex marriage, that would have the effect of being binding on the federal government,” says Jane Schacter, a professor at Stanford Law School.

The cases before the court involve the 14th Amendment’s guarantees to equal protection under law and due process. If the high court rules that it is a violation of either promise for one state to deny a marriage license to a same sex couple, then it would become unconstitutional for any state to do so. Any state that failed to comply with the ruling, Carpenter elaborates, “would face immediate lawsuits—a complete waste of time and money.”

It’s anyone’s guess which case (or cases) SCOTUS may choose. The justices will choose between three Virginia cases, and one each from Utah, Indiana, Oklahoma, and Wisconsin. Ted Olson and David Boies, the attorneys on one of the Virginia cases, successfully argued Hollingsworth v. Perry last year. The attorney on one of the other Virginia cases is Paul Smith, who has argued multiple cases before SCOTUS, including Lawrence v. Texas in 2003, which struck down state sodomy laws. Carpenter says that the cases from Utah, Indiana, or Wisconsin might prove the most comprehensive choices for the court. “Utah, Indiana, and Wisconsin involve the marriage issue and the recognition issue and the state attorney generals are fully defending those laws. You have all the elements together in those cases,” he says. “The Supreme Court might want to just take a very clean case in which you’ve got the state squarely taking the position and defending its law.”

The Supreme Court could take multiple cases or all of them. It could also consolidate cases, something the court has done in the past with hot-button issues. (For example, 1954’s landmark Brown v. Board of Education combined six desegregation cases.) “All these plaintiffs want to be the chosen one,” says Schacter. “But it wouldn’t surprise me at all if they take more than one case.”

Here’s a closer look at all seven cases being considered by the court, and what’s at stake in each:

1. Herbert v. Kitchen (Utah): SCOTUS briefly dealt with this case earlier this year. In December 2013, a federal district court struck down Utah’s ban on same-sex marriage. Weddings began immediately. In January, the high court issued a temporary stay, putting a halt to marriages while the state’s appeal was considered. In June, the 10th Circuit Court of Appeals upheld the lower court’s ruling that the state’s same-sex marriage ban was unconstitutional.

2. Smith v. Bishop (Oklahoma): First filed in 2004, this case originally sought both to overturn Oklahoma’s ban on same-sex marriages and to recognize marriages performed in other jurisdictions. In January, a district court judge ruled that the state’s ban is unconstitutional, but dismissed the portion of the lawsuit addressing marriages from other states, ruling that the plaintiffs lacked standing. Both sides appealed to the 10th Circuit Court of Appeals, which affirmed the district court on both counts. In its appeal to SCOTUS, the state of Oklahoma is asking the court to rule exclusively on the marriage question.

3. Bogan v. Baskin (Indiana): This case began as three separate suits filed on behalf of a widow and 11 couples. Several plaintiffs have same-sex marriage licenses from other states that are unrecognized in Indiana. In June, a district court judge consolidated the suits into Baskin, and struck down the state’s ban on gay marriage. He did not stay the decision, allowing marriage licenses to be issued immediately. Earlier this month, the 7th Circuit Court of Appeals upheld the lower court’s decision.

4. Walker v. Wolf (Wisconsin): In February, the American Civil Liberties Union filed this case on behalf of eight same-sex couples, three of whom had married in other places. In March, a district court judge denied the state’s requests to dismiss the case. In June she ruled in favor of the plaintiffs, overturning Wisconsin’s ban on same-sex marriage. Her ruling was unclear on whether marriages could begin or not: Still, clerks in some cities began marrying couples immediately. Earlier this month, the 7th Circuit Court of Appeals upheld the lower court’s decision.

5, 6, and 7. Rainey v. Bostic, Schaefer v. Bostic, and McQuigg v. Bostic (Virginia): These three cases are different iterations of a suit filed in July 2013 by plaintiffs Timothy Bostic and Tony London, who seek to get married in Virginia. Carol Schall and Mary Townley joined the case in September 2013. They were legally married in California in 2008, but their union is not recognized in the Old Dominion. This has made it impossible for Schall to formally adopt her own daughter. In February, a district court judge ruled on all three cases, concluding that the state’s laws barring in-state gay marriages and prohibiting recognition of out-of-state marriage licenses is unconstitutional. In July, the 4th Circuit Court of Appeals affirmed the lower court’s ruling. A fourth case, Harris v. Rainey, a class action suit, has been incorporated into Rainey v. Bostic.

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The Supreme Court May Be About to Save—or Destroy—Gay Marriage

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Top Gun Rights Group Backs White Supremacist’s Supreme Court Case

by JaimeTeeter Posted on September 2, 2014

Mother Jones

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Samuel Johnson isn’t exactly a lawyer’s dream client. He’s a white supremacist with a lengthy rap sheet who a couple years ago was accused of plotting an attack on a Mexican consulate. He ended up drawing a 15-year prison term on a gun charge, and his case is now on his way to the US Supreme Court, which has agreed to hear a challenge to his sentence. Johnson has won the vocal backing of a top gun rights group, but as his case moves forward, it may eventually draw support from some liberals and civil libertarians who oppose harsh mandatory minimum sentences.

Johnson’s story started back in 2010, when he caught the attention of the FBI, not long after he’d started organizing anti-immigration rallies in Minnesota. Initially a member of the National Socialist Movement, a neo-Nazi group, Johnson quit to start his own outfit, the Aryan Liberation Movement. He allegedly planned to support the group by counterfeiting money.

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Top Gun Rights Group Backs White Supremacist’s Supreme Court Case

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This 11-Year-Old Was Locked Up Trying to Cross the Border. Read the Heartfelt Letter She Sent Obama.

by KennyPyzndltjzo Posted on August 29, 2014

Mother Jones

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On Tuesday, the nation’s top immigration court allowed a Guatemalan woman who fled her abusive husband to petition for asylum in the United States. It’s a landmark ruling that immigrant rights advocates hope will protect women who have escaped horrific marital violence in countries besides Guatemala.

One of those women is a Honduran named Rosemary. In June, she entered the US with Daniela, her 11-year-old daughter, and both were detained near the border. Rosemary and Daniela are currently detained in a makeshift facility in Artesia, New Mexico, set up by the Department of Homeland Security. They are seeking asylum after fleeing Daniela’s father, who allegedly beat and choked Rosemary for three years before the two escaped. (Rosemary asked me to withhold their last name.)

And Tuesday’s ruling could be good news for the two of them—if they ever get out of detention. “It is very difficult to prepare a meaningful asylum case within a detention center,” their lawyer, Allegra Love, wrote to me in an email. “There is limited legal counsel and communication is nearly impossible.”

In less than two weeks, Rosemary and Daniela have a bond hearing. If the judge grants a low bond, the family will pay it and live with friends in Houston. But if it’s too high—or the judge denies them bail—then Rosemary has considered voluntarily going back to Honduras, where she claims her life is in danger.

Why would Rosemary risk heading back to one of the world’s most violent countries? According to a lawsuit filed by the ACLU and other immigrant rights groups, conditions in Artesia are terrible: The facility is overcrowded, privacy is nonexistent, and phone calls to family and attorneys are limited to two or three minutes. Daniela says she has lost 15 pounds in two months. “Her mother is not sure she wants to risk her child starving to death in New Mexico,” Love says.

So Love encouraged Daniela to write a letter to President Obama. Daniela did, and Love translated and shared with Mother Jones. Here’s an excerpt:

I don’t like being here because we don’t eat well, and I can’t do what I did in Honduras so I need to go back or get in school. I am a very intelligent girl. I can speak English and I am learning French, and I believe that all the kids who are here in this center should leave. No one wants to be here. We are getting sick mentally. The jail is affecting us. Some officials are very rude. President Obama, I am asking you to please help us leave here and stay in this country. While I have been here I’ve been sick two times. I ask you from my heart for your help.

Here’s a copy of Daniela’s letter and Love’s handwritten translation:

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Daniela’s Letter to Obama (PDF)

Daniela’s Letter to Obama (Text)

A copy of Rosemary’s affidavit to the court, which Love shared with Mother Jones, corroborates the basic details of her daughter’s letter.

In one sense, Rosemary and Daniela are lucky: Artesia is notorious for deporting migrants so swiftly that people with legitimate asylum claims never have a chance to file an application. The fact that the mother and daughter are in touch with a lawyer—they met Love through her pro bono work for the American Immigration Lawyers Association—sets them apart from thousands of other women who stream through Artesia every month. (The Department of Homeland Security did not reply to requests for comment.)

Their story also flies in the face of conservative claims that, following Tuesday’s decision, domestic violence victims can earn “instant US citizenship.” Their claim to asylum might have improved in the abstract—but there are still plenty of hurdles between Rosemary and Daniela and their first asylum hearing.

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This 11-Year-Old Was Locked Up Trying to Cross the Border. Read the Heartfelt Letter She Sent Obama.

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