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Uncle Junior's Trial : Effect of Mistrials, Ways to Avoid Jury Tampering, and Allen charges (last updated December 9, 2002) (back to top) In having his trial on RICO charges declared a mistrial, Uncle Junior was not found to be either guilty or not guilty. His trial simply ended without a resolution, the charges against him still stand, and the government does have the option of bringing him to trial again, though doing so might be so expensive that it is not realistic. A new trial would not implicate Uncle Junior's rights under the Double Jeopardy clause of the Fifth Amendment. That clause provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb," which means that someone generally cannot be prosecuted again for the same crime once he is acquitted or convicted. But since Junior did not get any kind of verdict, and since the trial was declared a mistrial through no fault of the prosecutors, the government can initiate a second prosecution. Uncle Junior's trial – and the reasons for the declaration of a mistrial – does point to potential flaws in how the jury was handled in this case. The court could have taken some preliminary steps to prevent the kind of jury tampering engaged in here, including keeping an anonymous jury in order to protect them from any outside influence or threat, and sequestering the jury so that none could influence any jurors. Once the jury began deliberating, the court should have sequestered the jury again to prevent outside influence. The court also could have considered disqualifying the holdout juror since there were indications that he was not deliberating at all and thus was no longer qualified to perform his duty; Federal Rule of Criminal Procedure 23(b) does allow a court to have a jury return a valid verdict even if one juror has been excused for just cause after the jury began deliberating. The judge did try urging the jury to move past its deadlock with a common feature of jury deliberations, an Allen charge, which is a set of instructions derived from an 1896 case decided by the United States Supreme Court and modified over the years. Judges give modified Allen charges when juries report that they cannot reach a unanimous consensus on a verdict in a criminal case. Careful not to coerce the minority simply into agreeing with the majority to reach some verdict, judges ask jurors to recognize that absolute certainty is not expected and to consider what others are saying. (Hung juries are relatively rare. I did see a hung jury and mistrial when I covered a criminal trial during law school; the federal judge presiding over the case said it was only the second he'd seen in more than a decade as a judge. The defendant was subsequently convicted when the second prosecution was initiated, in part because the government now had seen the defendant's best defenses and could counter them at trial.) Sources: Stephen A. Saltzburg and Daniel J. Capra, American Criminal Procedure : Cases and Commentary (Fifth edition) (West Publishing Co., 1996).  Billy Budd : Interpretations (last updated December 7, 2002) (back to top) Herman Meville's final work of literature and one of his most interpreted ones, Billy Budd : Foretopman (sometimes known as Billy Budd : Sailor) is the story of a British crewman who is executed for striking out against a senior officer who wrongly accused him of mutiny. Some have read the story as driven by the suppressed homosexual desires of Billy Budd's accuser – John Claggart – but this is only one interpretation. Others see the story – which Melville began writing in 1896 and had not finished by his death in 1891 – as Melville's response to the Haymarket affair of the 1880s, in which seven anarchists were convicted for inciting the murder of police officers trying to put down a labor rally. Others have seen the story as Melville's response to an 1842 mutiny case that his cousin helped decide, or to the fugitive slave cases decided by his father-in-law, the chief justice of the Massachusetts Supreme Judicial Court, in the 1850s before the Civil War. "No other text of Melville's is as protean, as unstable, as this late unfinished masterpiece. Paradoxically, too, no other Melville text exists in manuscripts so revealing of its extraordinary evolution and expansion (over what were to be the last five years of its author's life), no other work of Melville's has been printed and published in so many different forms, no other Melville text has been so canonized as the apotheosis of its creator's finest art (even though he never finished it), and no other text has given rise to so many conflicting interpretations as Billy Budd," wrote one Melville biographer, Laurie Robertson-Lorant, of the novella. The story takes place aboard the H.M.S. Indomitable (called the H.M.S. Bellipotent in some versions) in 1797 shortly after two great mutinies within the British naval fleet. Billy, described as an example of the "Handsome Sailor" whom all recognize, is impressed into naval service from a merchantman ship, the Rights-of-Man, and quickly wins over most of the crew. John Claggart, the ship's Master-at-arms grows to hate Billy for reasons that the narrator simply speculates on, and accuses Billy of mutiny. Captain Edward Vere gives Billy a chance to respond to the accusations, but Billy, who finds himself unable to speak in the face, lashes out at Claggart and kills him with one blow to the head. Vere then sets up a drumhead court to consider how to handle Billy, and acts as both witness and prosecutor in convincing the drumhead court to convict Billy and to sentence him to death. Billy Budd is executed, and his final words are "God bless Captain Vere!" As Barbara Johnson noted in a 1979 essay, "while the majority of readers see Billy as a personification of goodness and Claggart as a personification of evil, those who do not, tend to read from psychoanalytical point of view" and focus on Claggart's latent homosexuality as his motive for hating Billy Budd and for singling him out for ill treatment. The narrator himself attributes it to a natural malignancy, as well as to an envy of Billy's beauty and a disbelief in his apparently too-pure nature. Writers in the 20th century have seen Claggart's motives as stemming from his homosexual desires that are turned into self-loathing targeted at Billy. For example, French academic Georges-Michael Sarotte has written that Claggart's "desire for the innocence he feels he is unable to experience represents the yearning of repressive society for the vanished Eden or for a less repressed society in which the instincts – homosexuality among them – were given free rein. But Claggart's defense mechanism turns him toward sadism and overt, vehement denunciation." Professor Leslie Fiedler also saw a homoerotic element to "Billy Budd" in his 1960 classic, Love and Death in the American Novel. There, he wrote that the encounter of Billy as "the beauty of innocence" and Claggart as the "lust of imperial evil" "is played out as passionate hatred, eventuates in melodrama." But some have argued that Fiedler's comments as to Billy Budd have been misunderstood. Caleb Crain wrote in 2000 that the story is about male homosexuality, "but not in the sense of rendering a verdict on it, for or against. For Melville, homosexual desire is merely one of the engines available to drive a plot, one that serves him well in exploring the moral ambiguity of building political authority out of affectionate bonds between men – or of making art out of affectionate bonds between men – or of making art out of feelings for another person." Others see the story as about Billy Budd himself, the innocent victim of an inflexible justice system. In that, the story does bear some similarities to the Somers mutiny of 1842, which the narrator does explicitly reference in the text. In that case, three crewmen were accused of mutiny and were summarily executed without a proper court-martial; the case was hotly debated afterwards in some part because one of the mutineers was the son of then-President John Tyler's Secretary of War. Melville's own cousin, Lieutentant Guert Gansevoorst, was even one of the members of the drum-head court that recommended execution for the three accused mutineers. Billy also could be seen as evoking the Haymarket defendants, eight anarchists who were charged with murder for a May 1886 incident in which a dynamite bomb killed six policemen who were in the midst of breaking up a pro-labor rally. The anarchists were tried in what appears to be an unfair court proceeding and were all found guilty. Seven were sentenced to death; of these seven, two had their sentences commuted to life imprisonment, one committed suicide, and four were hanged. Others have seen the story as being more about the demands of military justice and about the captain's difficult choice. Robert Cover, for example, sees the story as about the difficulty in applying rigid laws in no-win situations and suggests that Melville based Vere on his father-in-law, Chief Justice Lemuel Shaw of the Massachusetts Supreme Judicial Court. Shaw supported the end of slavery and was a noted abolitionist in his writings and personal opinion, but nonetheless upheld the Fugitive Slave Act of 1850 and returned fugitive slaves to their owners out of a desire to hold the union together. Sources: Laurie Robertson-Lorant, Melville : A Biography (Clarkson Pottery / Publishers, 1996). Robert M. Cover, Justice Accused : Antislavery and the Judicial Process (Yale University Press, 1975). Georges-Michael Sarotte, Like a Brother, Like a Lover : Male homosexuality in the American novel and theater from Herman Melville to James Baldwin (Anchor Press / Doubleday, 1978) (translated by Richard Miller). Caleb Crain, The ties that bound in America, New York Times Book Review, December 17, 2000. Larry J. Reynolds, Billy Budd and American Labor Unrest : the case for striking back, in New Essays on Billy Budd, edited by Donald Yannella (Cambridge University Press, 2002). Barbara Johnson, Melville's Fist: The Execution of Billy Budd, printed in various locations, including Barbara Johnson, The Critical Difference : Essays in the Contemporary Rhetoric of Reading (Johns Hopkins Univ. Press, 1980). Thanks also to my friend Sarah Abramowicz, a J.D. and a doctoral candidate in English literature at Columbia University. HUD and Mortgage Fraud (last updated November 24, 2002) (back to top) Through a wide variety of programs, the Department of Housing and Urban Development promotes homeownership and provides housing assistance for millions of low-income people. At the same time, it has been criticized for mismanagement, inefficiency, and lacking a secure grasp of where its roughly $30 billion annual budget goes. In particular, HUD was plagued by a major scandal involving allegations that senior housing officials defrauded the government in the late 1980s; the resulting investigation by an independent prosecutor led to at least 16 convictions. Today, HUD is still implementing reforms to correct four department-wide deficiencies identified by the General Accounting Office in 1994, when it declared HUD a "high-risk institution" : (1) internal control weaknesses, (2) "poorly integrated, ineffective, and generally unreliable information and financial management systems," (3) a weak organizational structure, and (4) an insufficient mix of staff with the proper skills. HUD initiated a management reform plan in 1997 to address these deficiencies, and the GAO found that HUD had made "credible progress" in the first two years of the plan but still had more to do. Mortgage fraud is not just limited to HUD, and is a problem for the overall real-estate market. In March 2001, for example, a reputed mobster was indicted under federal racketeering laws for a mortgage fraud scheme in which he would secure mortgages for properties, inflate their value through falsified real-estate appraisals, and then sell them on the open market for a profit. More generally, some have criticized the overall mortgage process for encouraging fraud and collusion, since each player could have a financial stake for ensuring that deals go through, including appraisers who face pressure to meet targeted values or risk losing future business. Sources: The Department of Housing and Urban Development is on-line here. The General Accounting Office is on-line here. The Appraisal Institute is on-line here and has issued several press releases on mortgage fraud. Alan Feuer, Indictment says mob is linked to a mortgage fraud operation, New York Times, March 29, 2001. Competency to Stand Trial (last updated November 11, 2002) (back to top) Courts have long recognized that a defendant who "lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to trial," as the United States Supreme Court put it in a 1975 case. While this legal principle is sound, whether a defendant is in fact incompetent is often contested in such instances, and a defendant who is found to be incompetent does not simply go free. The most prominent case involving this principle in recent years was that of Gen. Augusto Pinochet of Chile, who had a criminal trial against him permanently closed in July 2002. Pinochet was arrested in August 1998 for covering up executions and kidnappings carried out by a military squad in the 1970s. He was then found to be suffering from "light to moderate" dementia in January 2001, and criminal proceedings against him were suspended in July 2001, though this ruling was appealed for a year. Under U.S. federal law, a defendant who has been found to be incompetent to stand trial is put into the custody of the U.S. Attorney General and is hospitalized for at least four months until his mental condition has improved or charges have been dropped. To be found incompetent, a court must determine that the defendant is "suffering from a mental disease or defect that renders him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense," as set forth in 18 U.S.C. 4241(d). Sources: Drope v. Missouri, 420 U.S. 152 (1975), available on-line via Findlaw.com here. Human Rights Watch has information about Gen. Augusto Pinochet's case on-line here. The "Missing Children" Problem, including the Kidnapping of Children (last updated October 6, 2002) (back to top) Despite intensive media coverage of particular incidents, the stereotypical kidnapping of a child by a stranger is a very rare instance, occurring only about 200-300 times a year, according to a 1990 federally-funded study that is still considered authoritative. Statistics going much higher for so-called "missing children" are usually the result of lumping in what the most authoritative federal study calls "extremely dissimilar social problems," such as runaways, abductions by non-custodial family members, and technical abductions such as violent crimes that involved moving a victim distances as little as 22 feet. The problem of "missing children" first emerged as a political issue in the early 1980s after several unrelated incidents, such as the 1981 kidnapping and murder of Adam Walsh, the 9-year-old son of current television personality John Walsh. With attention on this new problem, many people threw around statistics that were not necessarily founded in hard data or that were not clearly defined. Over time, some began to cast doubt on these statistics and raise questions about their basis in fact. The Denver Post, in a Pulitzer-Prize winning series, pointed out the "numbers gap" between such statistics and the number of investigations conducted by the FBI of children abducted by strangers. The FBI's investigative jurisdiction is limited to crimes that violate federal statutes or cross state lines, but even so, if there really were 50,000 children kidnapped by strangers a year, why was the FBI investigating less than 100 cases a year in the 1980s? To help understand the controversy, the Department of Justice commissioned the National Incidence Study of Missing, Abducted, Runaway and Thrownaway Children (NISMART), which was released in 1990 and is still considered the best source of data on the "missing children" problem. Using a household telephone survey, a review of police records in 21 counties in 16 different states, and a new analysis of FBI data, the NISMART study broke down the "missing children" problem into specific categories and to make some estimates. The study also broke these estimates down into "broad scope" numbers for those situations that a family might be concerned about but which are often resolved quickly and without incident, and "policy-focal" numbers for more serious situations which might concern police and social-service agencies, and in which a child might be in danger.
Gays in the Military : "Don't Ask, Don't Tell, Don't Pursue, Don't Harass" (last updated November 4, 2002) (back to top) Based on the official belief that the presence of gay service members would undermine morale, discipline and unit cohesion, the military continues to maintain a policy under which service members can be discharged if they are found to be gay or to engage in homosexual acts. The policy was refined in 1993-94 so that the military is not allowed to ask whether members were gay or can investigate only under certain circumstances ("don't ask, don't tell, don't pursue"), though the number of homosexual-conduct discharges each year subsequently rose somewhat, though not to the levels of the early 1980s. The policy was revised and expanded in 2000 to prevent anti-gay harassment, but this aspect reportedly has not been fully implemented. The issue gained new attention in August 2002 when Harvard Law School announced that it would allow the military to recruit directly on campus in order to comply with the Air Force's new interpretation of the Solomon Amendment, a federal law enacted in 1996 that denies federal funding to a school that "prohibits or in effect prevents" military recruiting. The Air Force had previously found that Harvard Law School complied with federal law by allowing the military to recruit indirectly through a veterans' association, but changed its interpretation in May 2002 and threatened to initiate actions that could have cut federal funding for the entire university. Military policy has restricted homosexuals from military service since World War I through personnel regulations and through military law prohibiting sodomy, as reported by the RAND Corporation in a 1993 study of the issue. Initially, the military attempted to screen and exclude homosexuals from service through then-current theories about the causes and manifestations of homosexuality. During World War II, the military continued to separate homosexuals from service, though there was wide variance in how cases were handled and a new willingness to consult with medical and psychological experts. About 2,000 people were discharged for homosexuality each year during World War II, according to the RAND study. Military policy became more unified and more explicit in preventing homosexuals from serving after World War II. On October 11, 1949, the Department of Defense issued a memorandum that unified military policy towards homosexual behavior, saying that "homosexual personnel, irrespective of sex, should not be permitted to serve in any branch of the Armed Services in any capacity, and prompt separation of known homosexuals from the Armed Forces be made mandatory." And in 1959, homosexual acts was defined as an act of sexual perversion which could be grounds for being discharged as unfit. Even though the military was about ten times smaller than during World War II, about 2,000 people still were discharged for homosexuality each year, the RAND study estimated. In 1965, military regulations began allowing members facing a less-than-honorable discharge to present their cases before administrative hearings and to be represented by counsel. This allowed service members accused of homosexuality to challenge discharge, and led to a review of the process in the late 1970s and early 1980s. Nevertheless, in 1981, the military reiterated its policy of excluding homosexuals, but now stated that homosexuality alone did not require a misconduct discharge and thus allowed for an honorable discharge. That year, 1,817 service members (comprising 0.086 percent of the army's strength) were discharged for homosexual conduct. The issue of gays in the military became a widespread political issue in the 1992 presidential campaign. As one of his first acts in office, on January 29, 1993, President Bill Clinton directed then Secretary of Defense Les Aspin to submit a draft executive order "ending discrimination on the basis of sexual orientation in determining who may serve" in the military. Such an order was to be in a manner "consistent with the high standards of combat effectiveness and unit cohesion our Armed Forces must maintain." That new policy was announced in July 1993, debated through the following months, and then became law on February 28, 1994 as part of the National Defense Authorization Act for the Fiscal Year 1994. Prohibitions against homosexual conduct remained in place. Congress recognized the longstanding prohibition against homosexual conduct in the military and found that the presence of people engaging in homosexual acts in the military would undermine morale, discipline, and unit cohesion. Accordingly, the act stated that a service member "shall be separated" from service if he or she:
 Spousal Privileges (last updated October 28, 2002) (back to top) There are actually two kinds of spousal privilege, and Adriana may have gotten better advice from watching "Murder One" than she did from the lawyer she consulted, who confused the issue by talking only about one kind of privilege and not both. Adriana probably cannot be forced to testify against Christopher once they are married, which will help her get the government to go easier on him than on the other members of the Soprano family. The testimonial spousal privilege is what Adriana wants to use to help Christopher, and it probably will help her out, though only if she is ever called to testify in court against him. This testimonial privilege has "ancient roots," as the United States Supreme Court said in a 1980 case, though it has been limited in recent years to help abused spouses and may not apply if the court finds that Christopher and Adriana were "joint participants" in a crime. Still, if a person does not want to testify against his or her spouse in a criminal action, many jurisdictions (including New Jersey) will still respect that. The government could still force Adriana to testify against Tony and other people, but it may have to offer some immunity towards Christopher or have a separate trial against him in order to do so. The spousal communications privilege is what Adriana learns about later, and it does not help her very much. Communications made between spouses are privileged and cannot be revealed in court unless one of the spouses consents, but only if the communications are not revealed to anyone else (the crime-fraud exception that the lawyer mentions refers to attorney-client privilege and does not necessarily apply to the spousal situation). Anything Christopher told Adriana before they got married (or after they get divorced) and anything he told her in the presence of other people can be used in court against him. Ultimately, Adriana can protect Christopher by getting married and staying married until after he goes to trial. The government will probably offer her and Christopher immunity (which they would probably offer anyway to get her continued cooperation as an undercover agent) or split the case into two trials, one against the Soprano family with Adriana's testimony, and one against Christopher alone without. Of course, Adriana still has a lot of problems of her own to handle, and she may even choose to waive the testimonial privilege and testify against Christopher in order to protect herself, since she does face the threat of drug and conspiracy charges. Sources: Trammel v. United States, 445 U.S. 40 (1980). State of New Jersey v. Szemple, 135 N.J. 406 (N.J. 1994). State of New Jersey v. Baluch, 341 N.J. Super. 141 (N.J. Superior Court, Appellate Division, 2001). In re Grand Jury (3rd Circuit 1997), on-line here. Christopher B. Mueller and Laird C. Kirkpatrick, Evidence Under the Rules (Little, Brown & Company, 1996) (3rd edition). New Jersey's testimonial spousal privilege is codified at New Jersey Statute 2A:84A-17, and its spousal communications privilege at 2A:84A-22. Suicide (last updated October 12, 2002) (back to top) More people die in the United States by suicide than by homicide each year, with about 30,000 deaths per year and about 500,000 people requiring emergency medical treatment from an attempted suicide. The overall suicide rate in the United States has held at about 11-12 suicides per 100,000 people, but varied among specific groups; the rate among young people has almost tripled in recent decades while other groups have seen either stable rates or declines. Public officials have been pointing more attention to the problem of suicide in the United States and around the world in recent years. In the United States, Surgeon General David Satcher called in 1999 for greater awareness and intervention, and a national strategy to improve suicide prevention was launched in 2001. These efforts have sought greater recognition of suicide as a preventable public health problem and reduced access to lethal means of self-harm. Another topic of concern has been improving the ways in which suicide is portrayed and discussed, particularly in the news media. Many experts have warned about the risk of "cluster suicides" or "suicide contagion," in which the number of suicides has increased when the number of stories about individual suicides increases, when a particular death is reported in detail, or when headlines are particularly dramatic. Accordingly, some have urged the media to avoid reporting a suicide in such a way that readers and viewers either identify with victims or see suicide as an acceptable solution or a way of getting attention, to not report detailed methods of committing suicide, and to avoid oversimplifying the reasons behind a suicide such as tying them to any one particular factor such as a traumatic event, a particular time of year, or identification with a celebrity. Nationally, there were 11.3 suicides per 100,000 people in 1998. While women are more likely to attempt committing suicide, men are about four times more likely than women to die by suicide. Native American men (including both American Indian and Alaskan natives) face the highest rates of suicide; in 1999, there were about 41.8 suicide per 100,000 Native American men, almost four times the national rate. About 3 out of five suicides are committed with a firearm. The following chart breaks down the death rates by suicide among men and women in different age groups, comparing the rates in 1950 and in 1998. Data is taken from the National Center for Health Statistics' Health, United States, 2001 report.
Courtroom Sketches and Cameras in the Courtroom (last updated October 13, 2002) (back to top) Courtroom sketches remain the exclusive source of images for all federal trials and for many state trials, due to restrictions that prevent television coverage or still photographs in such courtrooms. Since the 1970s, many states have allowed some kind of television coverage of trials, though federal courts have only allowed such coverage on an experimental or case-by-case basis. According to Katherine Krupp of the Metropolitan Museum of Art, modern trial sketching in the United States grew from newspapers, which relied on artists' renderings before cameras became widespread. Artists "used to be considered as great a distraction as the presence of photographers" and were sometimes ordered not to draw during a trial, but now are generally free to draw during a trial. Television coverage of trials has become more widespread since the 1960s and has allowed the rise of Court TV, but is still not allowed in many state courts and in all federal courts. Several states began experimenting with televising trials in the 1960s, but almost all stopped after a 1965 United States Supreme Court decision that ordered a convicted swindler receive a new trial because his original trial was disrupted too much by the media's presence (Estes v. Texas, 381 US 532). Several states began experimenting again a few years later, especially after a 1981 United States Supreme Court decision that rejected an absolute constitutional ban on broadcast coverage (Chandler v. Florida, 449 US 560). According to the Radio and Television News Directors Association's survey of state rules concerning camera coverage, at least half of the states allow broad coverage of trial proceedings. About 17 states either do not allow coverage of trials or do so with severe restrictions (though many do allow coverage of appellate arguments, which do not involve juries); some individual courts in these states have declared statewide bans unconstitutional. Federal courts in all states, however, do not allow television coverage, largely stemming from a court rule, Federal Rule of Criminal Procedure 53 (entitled "Regulation of Conduct in the Court Room"), that bans photographs or radio broadcasts from courtrooms. Still, there has been some movement towards allowing some coverage. Some district and appellate courts allowed coverage on an experimental basis in the early 1990s. Also, federal appellate courts were allowed in 1996 to decide for themselves whether to allow TV coverage of appellate arguments (which do not involve juries), though 11 of these 13 courts subsequently decided against doing so. Some have urged Congress to give federal judges the power to decide whether to allow television coverage of trial and appellate proceedings. The most recent effort in 2001 would have authorized a three-year pilot program in which federal judges would have been given the discretion to permit photographs, electronic recording, broadcasting, or televising of court proceedings, but did not get far. An earlier effort met strong opposition from the Judicial Conference of the United States; Chief Judge Edward R. Becker of the Court of Appeals for the Third Circuit testified that camera coverage could hurt the trial process and might unfairly pressure civil litigants into settling. Proponents of camera coverage have argued that such coverage helps educate the public about how the law works. Chief Judge Becker said such benefits were "overrated," explaining that "television news coverage appears simply to use the courtroom for a backdrop or a visual image for the news story which, like most stories on television, are delivered in short sound bites and not in-depth." Sources: Ronald L. Goldfarb, TV or Not TV: Television, Justice, and the Courts (New York University Press, 1998). The Radio and Television News Directors Association's state-by-state survey of rules allowing or prohibiting camera coverage is on-line here. The Judicial Conference of the United States is on-line here; Chief Judge Becker's testimony is included in a September 6, 2000 press release about the Judicial Conference's opposition to a Senate bill that would have changed current federal court rules prohibiting camera coverage. Katherine Krupp, Journalism Meets Art, Media Studies Journal (Winter 1998). Ida Libby Dengrove and Frank W. Martin, My Days in Court: Unique Views of the Famous & Infamous by a Court Artist (William Morrow & Company, 1990). Obesity (last updated May 6, 2002) (back to top) About 61 percent of adults, 13 percent of children aged 6-11 years old, and 14 percent of adolescents aged 12-19 years old in the United States are overweight or obese, according to results from the 1999 National Health and Nutrition Examination Survey (NHANES). A common measure of obesity is body-to-mass index (BMI), a calculation which expresses a person's body weight in kilograms divided by the square of his or her height in meters. A person is considered obese when he or she has an excessively high amount of body fat or adipose tissue in relation to lean body mass (BMI of 25 to 29.9). A person is considered overweight when he or she has high body weight relative to height, though one can be overweight due to muscle and not due to fat (BMI of 30 or more). According to the NHANES survey, the incidence of obesity in the United States has doubled among adults since 1980, going from 15 percent in 1980 to 27 percent in 1999. About 35 percent of the adult population was considered overweight in 1999, an increase of about 2 percent since 1980. Sources: The Centers for Disease Control has information about obesity here. Calculate your own BMI through an on-line calculator here. Columbus Day (last updated September 27, 2002) (back to top)
Undercover Agents (last updated September 18, 2002) (back to top) Undercover agents are a valuable law-enforcement tool, and are generally permissible as a matter of law and policy. The law pertaining to undercover agents doesn't protect you from admitting crimes or personal secrets; it only prevents the police from forcing you to do so, from getting you to commit a crime you would not have committed on your own (entrapment), or from tricking you into talking about a crime after you've already been charged with it. First of all, the Miranda right against self-incrimination only applies when you are (a) in police custody and are (b) being subjected to interrogation (this right was established in the seminal 1968 case, and was upheld by the Supreme Court in 2000 against a challenge based on a somewhat obscure federal statute). If you do not even believe that you are talking to a police officer, your Miranda rights are not being violated and are not even triggered. Second, police and undercover agents cannot perpetrate an entrapment by encouraging people to commit a crime by lying to them or by otherwise influencing them. This is a difficult defense to successfully make, since the defendant must generally prove that he or she had no prior disposition to commit the charged crime. Third, under the Sixth Amendment, you do have some protections from undercover agents once you've been charged with a crime. Undercover agents can still listen to what you say, but they cannot deliberately elicit incriminating remarks. The nurse at Junior's clinic, if she was the undercover agent, can listen to what Junior says and can testify about his statements in court, but she could not try to get him to say anything incriminating. She can also testify about anything she heard Tony saying and, since Tony hasn't been charged with anything, probably could have even tried getting him to talk. According to the Attorney General's Guidelines on FBI Undercover Operations as of November 1992, the FBI may use undercover activities and conduct undercover operations in which an FBI employee or agent assumes a name or cover identity. Undercover operations must be approved and monitored by a special agent and often by an undercover review committee. The FBI is required to "take reasonable steps to minimize the participation of an undercover employee in any otherwise illegal activity," and an undercover agent cannot participate in violent acts except in self-defense, cannot perpetrate entrapment, and cannot use illegal investigate techniques. Sources: The Attorney General's Guidelines on FBI Undercover Operations as of November 1992 are on-line here. Stephen A. Saltzburg and Daniel J. Capra, American Criminal Procedure: cases and commentary (West Publishing Co. 1996) (5th ed). The Model Penal Code also includes a provision that allows a defendant to be acquitted based on being entrapped. Doctor-Patient and Psychologist-Patient Privilege (last updated September 18, 2002) (back to top) Junior and Tony have business talks at the doctor's office while Junior's doctor turns a blind eye. Tony tells Dr. Melfi that he is grooming Christopher to act as his front man. Carmela admits Tony's involvement with the Mafia to a psychologist who then tells her to leave her husband with what's left of her children. All these incidents raise questions about how much doctor-patient and psychologist-patient communications are really protected from being disclosed. By law, what you tell your psychologist is generally more protected than what you tell your doctor (or say at his or her office), but even what you tell your psychologist could be disclosed in court. Tony is rightfully careful with what he tells Dr. Melfi, but may have slipped by telling her about what he plans to do in the future. Doctors and psychologists are generally obligated to maintain their patients' confidentiality, but the American Medical Association's and the American Psychological Association's ethical codes do recognize that the law may require and permit disclosure. The law trumps ethical standards of confidentiality and whatever assurances are given, so practitioners should be careful not to promise more confidentiality than they can actually provide. Most states do recognize the physician-patient privilege via state statute, but the privilege is usually limited to confidential communications that are related to diagnosis or treatment, and does not cover communications made to advance a crime or fraud. The drafters of some proposed federal privilege rules decided not to even propose a federal version of the physician-patient privilege, noting that "the exceptions which have been found necessary in order to obtain information required by the public interest or to avoid fraud are so numerous as to leave little if any basis for the [physician-patient] privilege." While the doctor-patient privilege is very limited, some form of psychologist-patient privilege is recognized in all 50 states as well as in federal courts, and it is often treated as being as protected – and as limited – as the attorney-client privilege. Thus, just as a client can tell an attorney about past crimes but not future crimes without risking disclosure, a patient probably can admit involvement in past crimes to a psychologist and have that communication be privileged, but the psychologist could still be required to reveal any communications about future crimes. State forms of the psychologist-patient privilege are by statute, but the federal version was firmly established by the United States Supreme Court in the 1995 case of Jaffe v Redmond, in which a majority of the Court recognized the privilege because it was "rooted in the imperative need for confidence and trust." The Court also noted that denying the privilege would not produce usable evidence but merely discourage people from seeking or receiving effective treatment. New York and New Jersey, for example, recognize the physician-patient and psychologist-patient privileges but treat them somewhat differently. Both states treat psychologist-patient relations as being just as privileged and as protected as communications between an attorney and his or her client (see NYCPLR 4507 and N.J.S. 45:14B-28). However, while New York only protects physician-patient communications when they were believed "necessary" to enabling the doctor to attend the patient, New Jersey protects communications which were believed "necessary or helpful" (see NYCPLR 4504 and N.J.S.A. 2A:84A-22.2). Sources: Christopher B. Mueller and Laird C. Kirkpatrick, Evidence Under the Rules (Little, Brown and Co., 1996) (3d edition). Edward J. Imwinkelried, The New Wigmore: a treatise on evidence : evidentiary privileges (Aspen Law & Review, 2000). The United States Supreme Court's decision in Jaffe v. Redmond (1996) is on-line via Findlaw.com here. The American Medical Association is on-line here, and the relevant ethical code is E-5.05. The American Psychological Association's ethical code is on-line here, and the relevant provisions are 5.01 to 5.11. New York's Civil Practice Law & Rules is available on-line via the New York State Assembly here and New Jersey's relevant privilege laws are summarized on the New Jersey Law Network here and here. Intelligence Failures and Reforms (last updated June 3, 2002) (back to top) In the wake of criticism over the Federal Bureau of Investigation's failure to detect and deter the September 11, 2001 attacks, FBI Director Robert S. Mueller III announced on May 29, 2002 several major organizational changes to the FBI. First, the FBI would refocus its priorities so that protecting the United States from terrorist attack and foreign intelligence operations would take the highest priority. In terms of staff, he proposed increasing the number of agents dedicated to counterterrorism efforts by hiring new agents and by shifting 518 agents away from drugs, white-collar crime and violent crime efforts, with the vast majority coming from drug efforts (400 agents from anti-narcotics efforts, with 59 each from the other two areas). Mueller has also testified that he wants to accelerate a move within the FBI away from generalists to emphasize specialized experts. In terms of investigatory capabilities, Attorney General John Ashcroft announced on May 30, 2002 new guidelines that loosen prior restrictions on domestic intelligence gathering. Under these guidelines, which are already in effect, federal agents are now allowed to visit any place and attend any event that is open to the public, though they are not allowed to retain any information unless it relates to criminal or terrorist activity and they are still bound by the Constitution and federal law. Agents can also now use on-line resources to the same degree as the public and can conduct wiretapping operations with less supervision than before. According to Ashcroft, these revised guidelines emphasize the FBI's mission of preventing terrorism, reduce "unnecessary procedural red tape," and allow the FBI to "draw proactively on all lawful sources of information." The FBI "cannot meet its paramount responsibility to prevent acts of terrorism if FBI agents are required, as they were in the past, to blind themselves to information that everyone else is free to see," he said on May 30. Nonetheless, the revisions have already been criticized by many, ranging from the American Civil Liberties Union to Representative F. James Sensenbrenner Jr. (R-Wisconsin). In a May 30 press release, the ACLU said the new guidelines reward the FBI's failure by restoring powers that were abused during the civil-rights era, when the FBI spied on activists such as Dr. Martin Luther King Jr. In many ways, the Department of Justice has seen its powers expand in several ways since September 11. The USA Patriot Act, which was signed into law in October 2001, authorized new law-enforcement tools such as stronger powers to prevent money laundering and to detain non-citizens based on lower standards than citizens. In October, the Justice Department also published a regulation that authorizes prison officials to monitor communications between detainees and their lawyers without a court order. Mueller took office on September 4, 2001, just a week before the September 11 attacks. His predecessor was Louis Freeh, who served from 1993 to June 2001. Sources: Information on the FBI's reorganization effort is on-line here. The new DOJ guidelines released on May 30, 2002 are available on-line via the Department of Justice's Office of Legal Policy, on-line here, and Attorney General John Ashcroft's May 30 speech announcing them is on-line here. The ACLU's May 30 press release criticizing the new FBI guidelines is on-line here. Don Van Natta Jr. and David Johnston, Wary of risk, slow to adapt, F.B.I. stumbles in terror war, New York Times, June 2, 2002. Nostradamus (last updated September 15, 2002) (back to top) Hailed by some as a prophet, Michel de Notredame, best known as Nostradamus, was a doctor and poet in 16th-century France (born in 1503, died in 1566). Some of the nearly 1,000 verses that he wrote and that were compiled in groups of 100 known as "Centuries" have been interpreted as predicting future events, but these verses are ambiguous, open to much interpretation, and have been seen as truly predictive only in retrospect. Most recently, some have claimed that the September 11, 2001 attacks on the World Trade Center and the Pentagon were somehow predicted by Nostradamus. There are three verses that people have commonly pointed to, although two of the verses are more readily applied to other events, and one was actually not written by Nostradamus but by a young student who wanted to demonstrate how an ambiguous "prophecy" could be open to much interpretation and could eventually be seen in hindsight as predictive.
Economy (last updated September 15, 2002) (back to top) One measure of the state of the U.S. economy is how fast the gross domestic product is growing, both on an annual basis and also by a particular quarter. In the late 1990s, the United States economy grew about 4 percent each year and even higher in some quarters. In 2001, the pace of economic growth slowed and the economy even contracted in the third quarter of 2001, but began to recover by the fourth quarter of that year.    Financial Planning (last updated September 15, 2002) (back to top) Carmela isn't the only one trying to plan for her family's financial future. Long-term financial planning can take on many different aspects, some of which are discussed below.
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