Monthly Archives: July 2012

When Cops Forget To Fight Crime

Sometimes the police seem to forget they’re suppost to be stopping crime. For example, if the police discover that someone has stolen your car, you’d expect them to try to catch the thief and return your car to you.

That’s not what the DEA did when they discovered that someone was using Craig Patty’s truck to transport marijuana. Instead, they teamed-up with the thief:

Commandeered by one of his drivers, who was secretly working with federal agents, the truck had been hauling marijuana from the border as part of an undercover operation. And without Patty’s knowledge, the Drug Enforcement Administration was paying his driver, Lawrence Chapa, to use the truck to bust traffickers.

It didn’t work out so well for them, and it worked out even worse for Chapa:

Chapa was shot dead in front of more than a dozen law enforcement officers – all of them taken by surprise by hijackers trying to steal the red Kenworth T600 truck and its load of pot.

Not only did the DEA get an informant killed, but one of the cops on the scene was accidentally wounded by a shot from another cop.

Patty’s truck was also damaged in the attack, and since that truck was about half his business, he’s facing a lot of financial problems. His insurance company wasn’t much help:

Copies of letters and emails from Patty’s insurance company state that it won’t pay for repairs because the truck was part of a law-enforcement operation. Patty drew from his 401K retirement fund to repair the truck, which was out of operation for 100 days.

That doesn’t sound right. The truck wasn’t part of a law-enforcement operation. The truck was being used by a thief. That the thief was acting under the direction of the DEA is not Craig Patty’s fault.

In any case, Patty is now going after the DEA for the cost of repairing his truck.

In documents shared with the Houston Chronicle, he is demanding that the DEA pay $133,532 in repairs and lost wages over the bullet-sprayed truck, and $1.3 million more for the damage to himself and his family, who fear retaliation by a drug cartel over the bungled narcotics sting.

Houston lawyer Mark Bennett, who is advising Patty, said if Patty’s initial claim is not resolved, the next step would be to sue.

I don’t know much about tort law, but I’m guessing Patty is going to have a hard time getting anything out of the DEA. After all, the truck wasn’t damaged by the DEA but by a bunch of criminals, and it’s a drug cartel, not the DEA, that Patty’s family is afraid of. Of course, if you or I had stolen Patty’s truck, and some criminals had shot it up, I’m pretty sure we’d be held responsible for whatever damage it suffered as a result of our crime.

All of this happened because the DEA agents forgot they’re supposed to be fighting crime rather than abetting it. When the DEA discovered Chapa had misappropriated his employer’s truck to haul marijuana, they could have just arrested him for it and returned the truck to its rightful owner. Then Chapa would still be alive, the police officer wouldn’t have been shot, the truck wouldn’t have needed repairs, and Craig Patty’s family wouldn’t be looking for cartel goons around every corner.

Ten Years At the Keyboard

It was ten years ago today that Windypundit was born.

For this anniversary, I’m going to tell you a bit about my approach to blogging, and my experience in writing a blog. Think of this as “How to Blog Like Windypundit” in one easy lesson. Perhaps those of you new to blogging will find something of interest in the accounts of one guy who’s been a very minor figure in the blogosphere for 10 years.

This will be one of my longest posts and certainly the most self-indulgent. Which if you’re familiar with my work, is saying a lot. If you get bored, you can skip to the end, which has some music.

Going Public

When I started Windypundit in July of 2002, one of my first decisions was whether to write anonymously. There didn’t seem to be a need: I wasn’t planning to write about my work, and I didn’t think anyone I worked for would really care about my political opinions. And if it turned out some potential client or future employer did care…well, I’d be better off not working for anyone that uptight.

On the other hand, I wasn’t really “out” with all my friends and colleagues about my libertarian(ish) politics. It seems silly now, but back then I wasn’t sure if I really wanted everyone I knew to learn that I was in favor crazy ideas like free markets in human organs or legalizing street drugs. Maybe a little anonymity would do me good.

The problem is that true anonymity is a long hard road.

You have to be careful about posting photographs or videos. You can’t interview people you write about. You can’t have meet-ups with other bloggers unless you’re sure you can trust them. And unless you are extremely careful about what personal details you reveal (Blonde Justice is a good example of the level of paranoia required), there will eventually be enough information about you in your blog that people who know you (and eventually even total strangers) will be able to assemble the mosaic and uncover your identity.

Then once you’ve posted stuff you don’t want traced back to you, you can’t undo it. Even if you delete it, the internet remembers everything, and other people will always know what you wrote. If you ever reveal your identity, every last thing you ever wrote will come crashing down on top of you.

So unless your situation is strictly temporary — such as a job you’re planning to quit — it makes sense to stay anonymous only if you commit yourself to never, ever changing your mind. If you allow for the slightest chance that you will ever go public, then the knowledge of that possibility will always be there to inhibit your posting. And if you’re not going to take full advantage of the anonymity, you might as well just blog in your own name.

Which is what I did. And as it turns out, nobody in my real life cares what I think anyway.


I started blogging back when Glenn Reynolds was leading the blogging revolution over at Instapundit and, like a lot of other people, I decided to call my blog something that ended in -pundit. I can’t remember most of the other names I considered, but for a while I seriously considered calling myself Five Year Pundit, based on my observation that through much of my life, whenever I reflected on my past beliefs, everything I thought up until five years before seemed kind of stupid. The gimmick would have been that I was claiming I was right only for the next five years. There’s still a remnant of that name in my URL at Sitemeter.

I eventually settled on Windypundit, since I live in the Chicago, the Windy City. I mostly took it because it had a nice ring to it, and nobody else was using it. I was worried that it implied I was a Chicago-focused blog, which I knew wasn’t going to be the case because my interests were broader than that, so I used the tagline, “Commentary about government, economics, and science….with a Midwestern twang.” Eventually, I realized that no one cared about the blog description. They could figure out what it was about by reading it.


In the early days of blogging, one of the big complaints was that bloggers weren’t very accurate. Compared to the professional news media, a lot of what they wrote was rumor, nonsense, and wild blather. I didn’t see this as a problem.

When traditional reporters write a story, they have to sift through rumors and follow up on leads. They do research. They talk to experts and decide which ones have opinions worth considering. They pick through an enormous amount of information, and try to extract a story that is coherent, accurate, and important. Then they publish the story, and readers react and discuss it.

Bloggers go through the same process, but they do it collectively, contingently, and in the open, and the reactions and discussions of readers are just feedback to the process. Blogging is not a news report, it’s a conversation, and it’s foolish to hold it to the same standards as traditional journalism as long as participants understand the difference.

As long as I understood this and made sure my readers understood it, I felt I could blog about important subjects without worrying that I would substantially mislead anyone. I think most of my readers get it, but sometimes I feel the need to make my lack of expertise explicit. To my surprise, this confuses some readers, who are surprised that I would write about something after admitting I don’t know much about it. I figure it’s better than not admitting I don’t know much about it.


There are several writers whose work has been a touchstone for writing Windypundit.

Isaac Asimov

When I was a kid, I loved reading collections of Isaac Asimov’s science articles. I think I learned a lot of basic physics that way, along with a bit of chemistry and biology. He had a habit of starting each article with a brief personal story which he then tied into the main subject. People made fun of him for that, calling it a sign of ego, but I liked it, because it made him seem friendlier. I don’t ape Asimov’s style by beginning each post with a personal anecdote, but I often start posts with some warm-up material, such as a link to someone else’s post, that I can tie into my main subject. And like Asimov, I really enjoy explaining things.

Roger Ebert

I remember reading a response Roger Ebert had written to someone who criticized him for being “biased” in his review. He said that he didn’t know how to write a non-biased review. He always wrote from his own point of view. This dovetailed well with my experiences reading his reviews: Regardless of whether or not Ebert gave a movie a good review, I could usually figure out from his review if I was going to like the movie.

It was kind of like vector math. Roger may not have been unbiased, but he was always himself, which meant he was a fixed point in his reviews. I knew how my tastes in movies differed from his, so when I read his review, I could subtract the difference between us to get an idea how I’d feel about the movie.

This is why I think that opinion journalism is so much better than “unbiased” reporting. All reporters have biases, it’s just that opinion journalists don’t try to hide them from you, so you know where they stand and you can use your knowledge of their biases to evaluate what they’re saying.

In other words, be yourself and don’t put on a facade of objectivity for your audience. It’s not only more fun for you, it’s more useful to your audience.

Virginia Postrel

I first encountered Virginia Postrel when she was the editor in chief of Reason magazine. Her writing has a way of taking seemingly trivial issues and finding important lessons. Here are some examples:

I wanted to be able to write posts like those. I still do.

Steve Landsburg

Steve Landsburg is the author of the Armchair Economist, and I draw a lot of my thinking and writing about economics from his style in that book, although he probably wouldn’t recognize the mess I’ve made of it all. He has an abrupt and succinct way of stating things that I occasionally work into my own writing.

Jon Stewart, Stephen Colbert, Joss Whedon

Whenever I try to be funny, I usually have in mind the ironic style of The Daily Show, The Colbert Report, and Joss Whedon’s comedic scripts. I’m not actually that funny, but that’s the kind of humor I like.


The impetus for most of my posts is something I read on the web, usually a breaking news story or a recent post at another blog. Something will strike me as unusually smart/stupid/outrageous and I’ll want to say something about it.

Every once in a while, that turns out to be easy, and I’ll just write a post straight out with only light revision. But that’s pretty rare. Most of the time, I do a lot of rewriting. It’s not just a case of writing the basic post in one pass, and then cleaning it up in the next. I don’t have it that easy. I rewrite a lot. Ridiculously a lot.

I’ll go over a post again and again, changing words and rewriting sentences. Sometimes I write the same paragraph over and over until I have three or four copies in the post and then pick and choose the best sentences to assemble a frankenparagraph, which I then proceed to rewrite into something more coherent. Sometimes I even do this with entire posts, creating two versions with different organizations. (This post, for example.)

I move sections around. I spend an hour writing a section, then I come back an hour later and decide to delete that section, except I really just move it temporarily to the end of the post, where I can recover the good bits if I find a place for them. I know a finished post should only have text that serves a purpose, and that I shouldn’t keep anything in the post solely because I spent a lot of time writing it. But then again, if everything has to serve a purpose, why blog at all?

I don’t usually have time to write the whole post all at once, but I’ll keep coming back to it, writing and revising again and again until I have something I want to publish. On a good day, this happens fairly quickly. Sometimes, though, I have such a hard time writing the post that it stretches out over several days.

Depending on the subject, that can be long enough for it to go stale. When that happens, I just leave it sitting there in draft form. Sooner or later something will happen to make it timely again, and with a bit of rewriting I’ll be able to publish it. It might take a few attempts, though: My speculative gayvolution post went through three or four bursts of rewriting every time a gay science story hit the news, until I finally had something I felt okay about.

In case it’s not clear, writing Windypundit is really hard.


In some sense, I write for myself. I decided early on to write about the things that interest me in a style that I’d enjoy reading. This is an act of faith. I’m assuming that I am not a special snowflake: If I’m interested in something, there’s probably someone else out there who’s interested in it too.

I know a few friends who read my blog. My wife is one of them, and I’m always mentally anticipating her reaction. My parents never got on the web, but they had friends who would sometimes bring them printed copies of my work, which probably prevented me from writing about a thing or two.

Then there are the other bloggers, some of whom know way more than I do about what I’m writing about. When I write about criminal justice issues, for example, I sometimes get comments from criminal lawyers or links from their blogs. This can be intimidating. There’s nothing quite like bloviating about the benefit-cost analysis of the death penalty only to have a lawyer who does capital defense write a response. (I started to write my own response to that, but it’s one of those posts that’s been sitting in draft for years.)

Playing Tricks

One thing that has never worked out well for me is playing tricks on my readers. I’ve done it a few times, and it always seems like a mistake later. This year I participated in Eric Turkewitz’s April Fools prank, and the only people who I fooled were my trusting readers. I have to keep reminding myself that this is not a good idea.

Marketing the Blog

Notice that this section is about marketing your blog. It is not about using a blog to market your business. The difference is that if you use your blog for marketing, you’re trying to attract readers so you can convert them to customers. If you’re a pure blogger like me, attracting readers is an end unto itself.


There area a couple of different levels of Search Engine Optimization, but the one that matters most is this: Google can’t index websites it doesn’t understand. If a blog has badly-formed HTML, search engines may have trouble finding the text of the posts on the page. And just as certain visual arrangements make it easier for people to read a post, there are certain technical features of a blog page that make it easier for Google to find the meaningful parts.

Understand that this is not some sort of super-web-guru magic trick that you have to hire an expert for. It’s the internet equivalent of using a typewriter instead of a crayon, and it’s not that hard to do. I know about these things because I usually build my own page templates. But if you use one of the major blogging platforms — WordPress, Blogger, Typepad — they’ll take care of most of this for you.

Content is King

I’ve always believed that the real key to bringing traffic to your blog is to have good content. Not only does your content attract readers, but it’s also a pretty effective SEO strategy, which brings in even more readers.

That works because Google famously scores websites according to the number and quality of inbound links from other sites. Some SEO companies will claim to get you inbound links for a fee (assuming they can outsmart Google) but you can do it yourself by posting something that interests other people enough for them to link to it.

For the most part, this means your best marketing move is to write really good blog posts that other people will like. I find this reassuring. The best way to get a lot of traffic is to write a lot of good stuff.


It’s a basic economic principle that your offerings will be most valuable to others if they are unusual. Thus I’m not going to draw in a lot of readers merely by having an opinion — they can find opinions anywhere. I have to bring something more to the table. I have to bring something original.

Fortunately, I get a certain amount of originality just by being me. This blog is an expression of my interests, my style, my way of thinking, and my personality. That’s an unusual enough combination that apparently some of you can’t get it anywhere else, so you keep coming here.

But it also helps to have something really original. It doesn’t have to be spectacular, just something that no one else has. Some of my most-linked posts have included original photography, reviews of new software or new books, or even just accounts of personal experiences.

Marketing to Other Bloggers

The closest I come to overt marketing is leaving comments at someone else’s blog. If I say something interesting in my comment, maybe someone will follow the signature link back to my blog and find something they like. For the most part, I comment on other blogs to contribute to the conversation, but I realize there’s a marketing effect.

I almost never put a link to my blog in the comment text. There’s nothing really wrong with leaving an “I blogged about this too here” comment on somebody else’s post, but I’d feel silly doing it. The one exception is that I sometimes put links in the comments when I have something original to contribute to the discussion, such as original photographs of the subject under discussion.

On the other hand, I really don’t mind when people leave comments like that on one of my posts, or send me an email about something they’ve written. I will say this, though: If you want me to link to your blog, don’t tell me about your blog; tell me about a specific post that you think will interest me or my readers.

Social Media

Yes, you can use social media to market your blog. These days it’s probably not a bad idea to tweet and post Facebook updates whenever you put up a new post on your blog. Not everybody is using a feed reader.

Dealing With Other People

Blogging is a conversation, which means I have to deal with other people.


Don’t bother asking for a link exchange, I just don’t do them. My blogrolling policy is that I’ll add you to my blogroll if I read you regularly, or if I think my readers might find your blog interesting. Although I appreciate your link to me, it doesn’t affect the foregoing criteria, so it won’t make me link to you.

A corollary of this is that the appearance of someone in my blogroll is not a show of support. Agreeing with me is not a requirement for listing. If I read someone’s blog because I hate everything they say, that still makes them interesting, and they’ll still get a link.

This is tempered by the fact that I don’t do a very good job of maintaining my blogroll. If you think you belong there, drop me an email. I probably meant to add you.

When it comes to removing people from the blogroll, I’ve seen a few other bloggers do noisy delistings when someone pisses them off, announcing their decision with great fanfare, and Enumerating The Sins Of The Removed. That seems silly.

In any case, since I freely list ideological opponents, that’s not going to happen here. I’m only going to take you off the blogroll if you stop being interesting to me or anyone else. And given my poor blogroll maintenance skills, that pretty much means I’ll keep you in the blogroll until your blog goes dead. And then six months after that.

Comment Policy

I don’t have much of a comment policy. Agree or disagree, if you’ve got something to say, then come on and say it. The only stuff I delete is spam, threats, and as it turns out, Nazi trolls. And yes, if you know of something relevant, of course you can post a link.

When I first started getting comments, I tended not to reply to them unless I had something specific to say. If my only response would be to reiterate the main point of the post, that seemed too much like trying to get the last word.

After a while, though, I realized that people who leave comments would probably appreciate knowing the blog author is paying attention, so now I try to reply to most of the comments on current posts. I appreciate your taking the time to say something, and I want you to know it. If I have enough to say, I may even use your comment to launch another post.

Picking On Other People

As a blogger, I spend a lot of words criticizing what other people are saying. I point out why they’re stupid or wrong or dangerous. In other words, I’m not always nice to people.

However, I try to choose the targets of my scorn carefully. I don’t like picking on people smaller than me. I’m not going to write a post about something I read in a letters-to-the editor column (I’ll make an exception if the writer is well known, or represents a government agency), or something someone wrote in a comment somewhere. I prefer to pick on major bloggers, professional pundits, government functionaries, politicians, and self-important blowhards.

In a sense I follow the old newspaper adage about comforting the afflicted and afflicting the comfortable.

Other People Picking On Me

Come at me, bro.


I’m a product of the early days of the blogosphere, so I can’t quite escape the feeling that as bloggers, we’re all in this together. Therefore I try to maintain an atmosphere of what I think of as blogger collegiality. This is not the same as being nice. If I disagree with another blogger, I say so pretty clearly. And if I think their ideas are horrifying, I say that pretty clearly too, often with swearing. But I try not to let my posts turn into a personal attack on the bloggers involved, even if they really have it coming.

(Note that this only applies to bloggers, pundits, and other species of journalists. That’s because for the most part, they’re just saying horrifying things. People who actually do horrifying things — or want to be elected to do horrifying things — don’t get the same courtesy.)

When referring to other bloggers in my posts, I generally try to keep things on a post-by-post basis. For example, I disagree with Jack Marshall at Ethics Alarms over a lot of things, particularly his positions on immigration and the drug war, as well as his willingness to discount the importance of human choice, but if I read something of his that I agree with, fairness requies that I consider blogging about that too.

Lessons Learned Along the Way

This is the advice section. Bear with me, we’re past the halfway point.

Buy a domain

I originally hosted Windypundit on Blogger like everybody else. As soon as I had a few posts up, I bought the domain name “” and got a cheap hosting service. I used a feature of Blogger that allowed you to edit content on the Blogger site but have it published via FTP on your own site. Eventually I converted to the new Movable Type blogging engine which ran directly on the host.

Buying my own domain name was the best technical decision I ever made about this blog. It’s my number one piece of advice for new bloggers. Don’t use a subdomain, and don’t get the name as part of your hosting package. Buy the domain directly from a registrar and set it up yourself. It requires a little more technical skill, but it gives you complete control. I’ve been through four or five hosting services, and I’ve never had trouble leaving one behind because I’ve always owned the Windypundit name, and I could always take it with me.

Bad News For High-School Students

Your high school teachers taught you that it’s very important to start every paragraph with a topic sentence that states the main idea of the paragraph. And when writing for school, especially when providing writing examples for tests, that’s probably for the best. But you should know that out in the real world, nobody writes that way. There may be sentences in a paragraph that serve the purpose of a topic sentence, but a paragraph is just as likely to be a collection of loosely-related thoughts. Sometimes writers start a new paragraph just to break up a large block of text to make it easier for readers to scan the page.

Keep the Structure Light

There’s a famous piece of speechmaking advice which goes something like “Tell ’em what you’re gonna tell ’em, tell ’em, and then tell ’em what you’ve told ’em.” That’s not really good advice. I’ve seen too many speeches where the presenter begins with an overview that takes 20% of the allotted time and never gets to the “Tell ’em what you’ve told ’em” part because the clock runs out.

In a blog, you should keep the “Tell ’em what you’re gonna tell ’em” part really short. It’s only there so readers can decide whether it’s worth their time to read the rest of the post. For example, from the first sentence of this post, you know it was going to be an anniversary post.

If You Haven’t Blogged Anything in a While…

Don’t post an apology, not even if you promise to post something else real soon. Nobody wants to read that, and it’s a disappointment to anyone who came to read it because their feed reader said you posted something new (and it can make you look silly if you never post again). The way to end a dry spell is to post something people will want to read.

Developing A Style

Good professional writers understand their craft well enough to bend and shape their prose at will to achieve the style they want. I’m not that good, so in creating the style of Windypundit, I follow the best advice on style I ever heard: Just keep writing and your style will emerge.

Strunk & White

Strunk & White’s Elements of Style is probably the single most influential book on writing ever published. It’s an eccentric little work, full of rigid little rules. You should know these rules. You don’t have to obey them to be a good writer — and for certain types of writing you must disobey them — but when you break the rules, you should know which ones and why.

The style reminders I’ve found most helpful are “Be clear” and “Omit needless words.” My regular readers may be surprised to hear that, but trust me, it would be much worse if I didn’t spend time making my sentences shorter. If you can say the same thing with fewer words, or fewer paragraphs, it’s almost always an improvement.

(The word I most need to kill is “just”. It always sounds good when I’m writing it, but when come around and read it during revisions, it always turns out not to be doing anything useful.)

Some of the rules just don’t apply to what I’m doing. If I followed style reminders 1 and 17 — “Place yourself in the background” and “Do not inject opinion” — it would reduce all of Windypundit to a few random sentences on a single side of paper.

Quote Everything You Need

When you want to comment on another blogger’s post — or anything else on the web really — it’s not enough just to link to it. The web is filled with transient ephemera, and a page you link to today could be gone tomorrow. Make sure you quote enough of it that your post still makes sense when your readers can’t get to it anymore.

Stupid Writing Tricks

I’m a terrible proofreader. I get caught up in the subject of the text and stop paying attention to the text itself. On top of that, after so many years of reading stuff on the Web — after seeing so many grammar errors, so much misplaced punctuation, all that bad spelling — I just skim right over it without noticing.

This applies to my own writing as well. I more-or-less know how English text is supposed to be written, but once I make a mistake, I have a hard time spotting it. My mind just skips right over it, making the correction without my being aware of what’s really on the page. Sometimes I’ll be looking at a sentence, and I’ll get this feeling of vague unease. After three or four passes, I might realize I was seeing a typo.

Split Infinitives

In Latin, so I’ve heard, the infinitive conjugation of a verb is usually a different form of the word, in much the same way that the English past tense conjugation of “break” is “broke,” so Latin writers can’t split an infinitive by putting another word in the middle. In English, the infinitive conjugation of a verb is simply the main word with “to” in front of it: The infinitive of “walk” is “to walk.” The infinitive of “break” is “to break,” and so on. This means we can put additional modifying words in the middle of the infinitive conjugation, as in “to quietly submit” or “to loudly object.”

For years, grammar police have objected to such split infinitives, presumably because English is derived from Latin, where such constructs were impossible. That seems silly to me, and I see no reason not to use split infinitives whenever I feel like it. As proof that split infinitives aren’t a bad thing, I offer for your consideration the most famous split infinitive in all of English writing: “To boldly go…”


The rules say you shouldn’t use “like” as a conjunction, so it’s technically wrong to write a sentence such as “They treated me like I was a celebrity.” It would be more correct to write “They treated me as if I was a celebrity.”

After decades of hearing people use “like” instead of “as,” I find that “as” sounds stilted and mannered, and “like” sounds more natural, so I use it a lot.

Serial Commas

I always use the serial comma, so I prefer “bell, book, and candle” to “bell, book and candle”. I won’t hate you if you prefer to do without it.

Quotation Marks

The general rule with quotation marks and other punctuation is that you should always put the final punctuation mark inside the quotation:

He yelled “Look out!”

“Be quiet,” she whispered.

This causes a problem for me. I’m a computer programmer by training and trade, and in computer programs the punctuation is very important. In particular, quotation marks usually set aside a literal string from the rest of the program, and you can’t casually move something inside the quotes that doesn’t really belong there. This is very important, and if you get this sort of thing wrong, your software won’t work.

I can break the rules of programming punctuation when I’m writing about someone talking, but I have a very hard time when quoting something written, especially if it is about computers. For example, my inner programmer is screaming at me to correct this:

Save the spreadsheet in a file named “Spending.”

That period does NOT belong in the filename. I would have to rewrite it this way:

Save the spreadsheet in a file named “Spending”.

The other way just looks so wrong.

Beyond my Control

I know the difference between “its” and “it’s”, between “principle” and “principal”, between “capitol” and “capital,” yet I still catch myself misusing them all the time. My brain knows the difference, but my fingers type the wrong thing anyway.

Too Many Connectives

Oh,… I mean,… Actually,… Of course,… Really,… However,… Make no mistake,… Don’t get me wrong,… On the other hand,… In some sense,… For the most part,…

As I’m writing, it feels natural to drop those little connectives between sentences and paragraphs, because it seems more like natural speech. But when I read it back, I realize I overdo it. I am forever editing these phrases out of my writing, and I still leave too many in.


(I’ll bet you thought I’d never get here.)

The Future of Windypundit

Unlike certain other bloggers who quit on their anniversary and got tons of accolades in the comments, I’m planning to stick around. Your accolades in the comments are welcome nonetheless.

My big project right now is mostly technical, in that I’m planning to get off Movable Type and switch to WordPress. It’s a big job, because I want to move over all the posts without breaking links. I’ll also need to create a whole new custom WordPress theme, probably using Hybrid as a base.

In terms of content, I’d like to start including more photography again. I’ve been holding off on that because of technical issues, but once I’m on WordPress, publishing photos should go a lot more smoothly.

I’d also like to get back into doing some real journalism from time to time, reporting on local events or interviewing people. That takes a lot of time, so we’ll see how it goes.

Also, there will be more catblogging.

Thank You

Without readers, I would just be a another madman ranting on the internet, and I would have given up on blogging long ago. With you, at least I know someone is listening. Thank you for encouraging my behavior.

No, wait, we’ve come a long, long way together, and “Thank you” is not enough…

Update: Patrick at Popehat gave me a nice shout-out, and Mark Bennett at Defending People told a story about me that I didn’t know the ending to.

New Yorkers Get Charitable Bail Funds

Over at Indefensible, criminal defense lawyer (and TV producer) David Feige writes:

Finally, after almost three years of work, the New York State Legislature has passed our bill allowing charitable bail funds.  This is a big step toward alleviating one of the more tragic consequences of poverty in the criminal justice system–being forced to plead guilty because you can’t afford bail.

As the Wall Street Journal explains:

New York has enacted a new law authorizing charities to post bail of up to $2,000 for those charged with misdemeanors and unable to come up with the money.

Actually, I think David Feige and WSJ are both burying the bigger story. A better lede would have been, “Up until now, New York has demonstrated inexplicable cruelty by preventing charities from posting bail for people accused of crimes.”

Still, this is a good thing. Too many poor people accused of relatively trivial crimes spend months in jail awaiting trial because they cannot afford bail of $1000 or even $500. Then they take the first plea offer that gets them out of jail, not because they think it’s fair, but because they simply want to get out of the cage.

Maybe I’m naive, but I don’t really understand why we have such strict bond requirements for minor crimes. If somebody is accused of committing a crime that everybody knows won’t draw jail time and they have no history, why not release them on their own recognizance and see what happens? If they show up for their next court date, great, now they’ve established a history of making court dates, so there’s even less need for bail in the future. And if they don’t show up, well, they probably wouldn’t have gone to jail anyway, so it’s not a big loss, and now you know to hold them on a bond the next time.

From the WSJ article:

The measure, which Gov. Andrew Cuomo signed Wednesday, will take effect in 90 days. He called it “unacceptable” for defendants to have to spend jail time for low-level crimes they may not have committed because they can’t meet the bail requirement.

Wait a minute. Maybe a better lede for this story would have been, “New York Governor and state legislature shake down charities by throwing people in jail to await trial for minor crimes.” After all, if it’s unacceptable for defendants to have to post bail in these situations, isn’t that the fault of the legislature in the first place?

Enslaving Our Kids

Over at Nobody’s Business, I finally get around to responding to Thomas Ricks’ idiotic New York Times op-ed:

Proposed for your consideration: We should be allowed to hunt Thomas Ricks for sport. I’m sure it would be great fun for us, and I think that if skinned and properly tanned, his silver-haired visage would look great on my living room wall.

Find out why, read the whole thing: Enslaving our kids.

Towards Shifting the Judicial Balance

In response to my noting that the Florida Supreme Court has approved the state’s policy of convicting people of possessing drugs without proving they did so knowingly (a problem not unique to Florida), someone named Paul Murray comments,

Surely all that’s needed is to get a pickpocket to plant some grass clippings on these judges.

Yeah, I’m convinced that one of the reasons judges keep issuing rulings like this (and that lawmakers keep passing laws like this) is that they never get caught up in the justice system themselves. Sure, they offer all kinds of legal arguments, but they also talk a lot about the need for “balance.” Maybe if they got rousted by the cops a little more often, their sense of balance would give more weight to freedom.

Which reminded me of an idea I had earlier.

Why Prosecutor Blogs Are Less Fun

Given my libertarian views, it’s not suprising that I don’t entirely enjoy reading blogs by prosecutors. Even those who aren’t rabid law-and-order true believers still rub me the wrong way on certain subjects. For example, I’ve been reading Mark Pryor’s D.A. Confidential blog for years. He’s a good writer — see his Holding Hands With Evil series for a taste — and he seems like a genuinely good guy.

A couple of days ago, in what he undoubtedly sees as a lighthearted post, he offered this riddle:

First, a riddle: two men are consuming marijuana when a policeman walks into the room.  The man smoking the joint is arrested and charged with a misdemeanor, but the man eating it is charged with a felony.  Why?

(I’ll post my answer – hey, there may be more than one correct answer, right? – over the weekend, but it has nothing to do with amounts or weights.)

Ooh! Ooh! I know! I know! Pick me! Pick me!

My answer is: Because self-righteous moral scolds have callously decided to inflict cruel punishment on people whose personal behavior offends their narrowminded sensibilities.


Just to be clear, this is not an attack on Mark Pryor.  He’s just using this to point out a quirk in the law, as a commenting prosecutor explains:

Answer: The possession of marijuna is a misdemeanor. The guy eating the marijuana tampered with evidence–a third degree felony…I have discussed the irony of this situation on a number of occasions.

Of course, this is only amusing until someone gets locked in a cage for no good reason. Which is, in a nutshell, my general reaction to a lot of prosecutor blogs.

Florida Court Makes it Easier to Unknowingly Commit Crimes

I like to think I know a thing or two about the excesses of the war on drugs, but I had no idea that the legal situation in Florida was this ugly:

Florida will remain one of the only two states in the country that sends people to prison on drug possession charges without first proving the person knew what they were carrying was illegal.

In a decision that will assure thousands will remain behind bars on a charge that many defense attorneys and some judges insist is blatantly unconstitutional, a divided Florida Supreme Court on Thursday upheld the state’s drug possession law.

“There is no constitutional right to possess contraband,” Justice Charles Canady wrote for the majority. “Nor is there a protected right to be ignorant of the nature of the property in one’s possession.”

Dissenting justice Justice James E.C. Perry gave some examples of what it would be like if this principle applied to other laws:

“Could the legislature amend its murder statute such that the state could meet its burden of proving murder by proving that a defendant touched another and the victim died as a result?” he asked, quoting from a federal judge who like several circuit judges in the state struck down the statute as unconstitutional. “Could the state prove felony theft by proving that a defendant was in possession of an item that belonged to another, leaving the defendant to prove he did not take it?”

Perry goes on to give examples of how this ruling could be abused:

He offered several examples of innocent people who could be trapped. He offered, “a letter carrier who delivers a package containing unprescribed Adderall; a roommate who is unaware that the person who shares his apartment has hidden illegal drugs in the common areas of the home; a mother who carries a prescription pill bottle in her purse, unaware that the pills have been substituted for illegally obtained drugs by her teenage daughter, who placed them in the bottle to avoid detection.”

The response from Palm Beach County State Attorney Peter Antonacci is telling:

Antonacci said prosecutors aren’t likely to waste time going after a letter carrier or a hapless mother. “We have enough to do,” he said.

So innocent Florida citizens are protected from prosecution under this law because the prosecutors’ offices are understaffed? That’s not very reassuring. And what’s really troubling about Antonacci’s response is what he doesn’t say: He seems not the least bit concerned that the letter carrier and the hapless mother didn’t do anything wrong.

West Palm Beach defense attorney Kai Li Aloe Fouts isn’t so certain. “You’ve got good cops and you’ve got bad cops. You’ve got good prosecutors. You’ve got bad prosecutors,” she said. “We have cases every single day, where we’re scratching our heads, wondering, “Why was this filed?’ “

Exactly. Laws that leave opportunities for abuse by prosecutors are inimical to the rule of law. What if that letter carrier with the package full of illegal Adderall is a young black male who was disrespectful of the cops who arrested him? What if that “hapless mother” with the bottle full of the wrong drugs is community activist who has been critical of the mayor? Maybe then the prosecutors would find the time to press charges.

When DNA Evidence Doesn’t Prove Much

Some criminal defense bloggers are skeptical of the supposedly high reliability of DNA evidence. Since almost every other form of forensic testing is based on shaky scientific foundations, they figure it’s only a matter of time until DNA falls too.

I don’t share their skepticism, at least not about the basic principles of DNA profiling. Other forensic sciences — blood spray patterns, bite mark analysis, psychological profiling, ballistics matching, and even fingerprinting — were invented for use by the criminal justice system. The science and technology behind DNA profiling, however, were developed as part of the general study of medicine and biology, using traditional methods of scentific investigation, and the conclusions have been validated many times over by subsequent research. I have little reason to doubt the basic validity of today’s standard DNA identity matching.

My more careful readers will have noticed I slipped a few weasel words — “today’s” and “standard” — into that last sentence. That’s because I still expect to see some problems in the courtroom. I’m not just talking about lab errors, but about the use of DNA in ways it was never intended, or in ways that have not been validated.

Case in point, the trial of Cleveland Barrett:

…Assistant State’s Attorneys Krista Peterson and Jane Sack told jurors in closing arguments that the DNA obtained from the victim after the alleged incident in July 2010 was a match to Barrett’s genetic profile and evidence that corroborated the victim’s trial testimony.

“Who is the major profile in the DNA that’s found?” Sack asked the jury, according to a transcript from the trial. “The defendant.”

But this DNA was different. It was not from semen, as is often the case in rapes; instead it came from male cells found on the girl’s lips. What’s more, the uniqueness of the genetic link between the DNA and Barrett was not of the 1-in-several-billion sort that crime lab analysts often testify to in trials with DNA evidence. Instead, when Illinois State Police crime lab analyst Lisa Fallara explained the statistical probabilities, she testified the genetic profile from the cells matched 1 in 4 African-American males, 1 in 8 Hispanic males and 1 in 9 Caucasian males.

Barrett was acquitted after spending a year locked up pending trial.

This case illustrates a couple of potential ways to misuse or abuse DNA evidence. (I can’t tell from the news story what other testimoney there was against Barrett or how any of the evidence was found, so I’m sticking with the word “potential.”)

First of all, there’s the fact that DNA was recovered from an unknown source on the outside of the victim’s body instead of from something more incriminating, such as semen in an orifice. Given that all of us shed microscopic skin cells all day long, I wouldn’t be surprised if everyone has someone else’s DNA on them somewhere. As DNA recovery techniques get better, forensic labs will probably recover more and more of it from crime victims, but it won’t necessarily prove anything.

As for that great DNA science I mentioned earlier, that was about the DNA itself, not about the methods for recovering it as evidence. All those biologists and doctors never had any reason to investigate how DNA traces are transfered between people. The probabiliy of a given allele at a given loci is well known. The probability that something like shaking hands or touching the same lightswitch will tranfer detectable amounts of one person’s DNA to another…it might happen a lot, or it might not happen at all. In either case, I’m pretty sure it hasn’t been validated nearly as thoroughly as basic DNA science.

(If you think cops and prosecutors wouldn’t stoop to misusing DNA evidence that might not prove anything, let me remind you that they use the presence of traces of cocaine on money as probable cause for searches and forfeitures, even though it has been known for decades that most U.S. currency has cocaine on it.)

The second potential misuse of DNA evidence is the lowering of the statistical standards. Normal DNA profiles are based on 13 locations on the human DNA strand. With a suspect in custody, or his DNA on file, the lab will determine what alleles (DNA patterns) he has at each location. Then they will attempt to make the same determination for the evidentiary DNA from the crime scene.

The problem is that the DNA from the crime scene is often degraded, and not all 13 genetic loci can be determined. Fortunately, not all 13 DNA loci have to match. Even if 3 or 4 of the evidenciary loci cannot be typed, the remaining loci are still good enough for a match at millions-to-1 odds.

On the other hand, if there’s a mismatch at even a single loci, that excludes the suspect completely: There’s no way he could have left behind DNA with alleles he doesn’t have. So the limiting factor for using incomplete DNA profiles is the unknown possibilities in the degraded sample. If 4 loci cannot be typed, that is 4 places where the DNA might not have matched if the lab had had a complete sample. The more unknown loci, the worse the evidence.

(Although it doesn’t appear to have happened here, partial DNA samples can also lead to coincidental matches in DNA database searches. Do a search with a partial sample and find five possible matches? Well, you know those are coincidental. But do a search with the same partial sample and get a single hit? That’s got to be the perp, right?)

So how did the Barrett prosecution end up using DNA evidence that offered only 9-to-1 odds? They got a match at one DNA location. This was little better than an old fashioned blood type match or having a witness who could only say that the attacker was “tall with black hair.”

Fortunately for Barrett, he had a vigilant lawyer:

Barrett’s case, in fact, involved considerable back-and-forth testimony over the meaning of the DNA. At one point, Fallara testified that she could not determine whether the cells on the victim’s lips came from saliva or skin or even a hair. She did acknowledge, though, that Barrett’s DNA matched the DNA recovered from the victim’s lips at only one of 11 locations on a chromosome – meaning she could not get enough information at the other 10 locations, a distinction that was drawn out by Assistant Public Defender Scott Kozicki in cross-examination.

Fallara even acknowledged in testimony that under a different reading of the data, Barrett could have been excluded as the source of the DNA recovered on the victim’s lips.

“It’s new. It’s highly unusual. And it’s very concerning,” said Gregory O’Reilly, chief of the forensic science division for the Cook County public defender’s office. “There’s a terrific power in the phrase ‘DNA match.’ And there’s a great risk that the jury will put great significance on this when it’s not significant at all.”

(I’m not sure why they talk about only 11 loci. Perhaps it was a non-standard test.)

In theory, there’s nothing wrong with using weaker DNA evidence as long as the weaknesses are explained to the jury. In this case the defense was apparently successful in that respect. It makes makes me wonder, though, how many other people will plead guilty to crimes based on DNA evidence that was no better than this? I’ll bet it’s already happened. We’ll know soon enough when they start filing appeals for ineffective assistance of counsel.

(By the way, next time you hear a private lawyer bashing public defenders, ask him if his law offices have a forensic science division.)