State's Appeal Against Pistorius Murder Acquittal Allowed

In a welcome move, at least for those of us who had serious concerns about how Judge Masipa dealt with dolus eventualis in the Oscar Pistorius judgment (see my previous blog post on the matter here), Judge Masipa has permitted the State's appeal, which will now be heard in front of the South African Supreme Court.

To recap, in a nutshell, without making it clear in her judgment why and on what grounds, Masipa J. had to have accepted that Oscar Pistorius did not foresee that firing four bullets through a closed toilet door risked causing the death of the person behind the door. You don't have to be a lawyer to see the problem with that (though the lawyers out there may note that the State got a lucky break that the Honourable Judge didn't explain her reasoning fully in the original judgment, for if she had perversity could well have been the only avenue available for the appeal, and that is a very difficult bar to get over. As it is, Masipa J. accepted that it is a point of law as to whether she correctly applied the principle of dolus eventualis to the facts.)

The Guardian's liveblog of the original judgment had a useful explanation of what happened:

Read the State's grounds for appeal below.

  State papers for Oscar Pistorius sentencing appeal by eNCA.com

Eric Garner and Mike Brown: the problem is the system

I am so frustrated by what has happened that I have found it difficult to take a step back and write a measured blog post about it, and instead have been engaging in debates/arguments on Facebook. I still haven't coalesced all my thoughts, so instead am just going to flag a point I made in response to someone on Facebook, which somewhat gets to the core of my thoughts on this troubling issue.

It is impossible, in my mind at least, to say "I am on one side on Mike Brown and the other side with Eric Garner", because in both cases the problem is the same: a District Attorney is so scared of pissing off the police union that he chooses not to pursue criminal charges against a police officer, even if he does go through the pantomime of pretending to do so. In both cases (we know in Ferguson, and we can assume in Staten Island), the prosecutor bent over backwards to avoid having the issue go to a full, public, trial, during which the testimony and evidence would be tested at length. By subverting and perverting the grand jury process Bob McCullough also further undermined African Americans' faith in the justice system. The son of a cop who was shot, he refused to recuse himself, but had neither the balls to take a decision not to press for an indictment nor leave the question of guilt or innocence to a jury in a trial. It's almost as if both DAs were scared of what the outcome might be, and intentional or not, the end result is that cops in America have become judge, jury, and executioner. That's not a democracy, that's a police state.

12/10/14 UPDATE:

The New York Times has a good piece expanding, in rather more measured terms, the point I was making above:

Grand Jury System, With Exceptions, Favors the Police in Fatalities

Smugness Alert

But I couldn't resist.

Of all my run-ins with RWNJs (right-wing nutjobs) on Twitter, this was by far and away the most satisfying...

@baseballcrank @charlescwcooke Other than my doctorate on Sino-American relations and degree in Chinese Studies, nothing at all. Yup.
— Chris Connolly (@Cripipper) November 12, 2014

The Puzzling Problem of the Pistorius Plea

A blog post by Felicity Gerry QC has today left me thinking again about the verdict in the Oscar Pistorius trial.  I need to disclaim at the very start that I saw very, very little of the actual trial and thus did not have the evidence in front of me that was placed in front of the judge.  However, given the provocative title of Ms. Gerry's post, 'The Oscar Pistorius verdict: was it a miscarriage of justice?', I was slightly surprised at her conclusion that

"justice was done and seen to be done. It may or may not be the truth, but on the available evidence, the important standard of proving serious criminal charges beyond a reasonable doubt was maintained."

What puzzles me about the verdict is an issue that I highlighted back in April,  which is that the Pistorius defence boiled down to something along the lines of "I killed Reeva when I accidentally fired through the toilet door thinking there was an intruder behind it."  From what I have seen and read, in her verdict Judge Masipa has not adequately dealt with the issue of transferred malice, and the blurring of what were essentially two separate defences offered by Pistorius: 1) That he acted in putative self-defence (which would require an assessment of whether it was reasonable under the circumstances as he perceived them for Pistorius to think that the force he used to avert the perceived threat was reasonable); or 2) He fired the gun accidentally.

This problem with the verdict has been highlighted by a number of South African legal scholars, and put very clearly by Pierre de Vos, of the Constitutionally Speaking blog, when he wrote:

The state can only prove intention via the concept of dolus eventualis [indirect intention/transferred malice] where the state can prove that while Pistorius might not have meant to kill the victim (Reeva Steenkamp or the putative intruder), he nevertheless foresaw the possibility and nevertheless proceeded with his actions (in legal terms he nevertheless reconciled himself to this possibility and went ahead).

In 2013 Judge Fritz Brand reminded us in the Humphreys case that it is not sufficient for the state to show that the accused should (objectively) have foreseen the possibility of fatal injuries to convict him or her of murder on the basis of dolus eventualis. The state must show that the accused actually foresaw the possibility of his actions killing someone (in this case, the person – whomever it might have been – behind the toilet door). It is not about what a reasonable person would have foreseen (which would speak to whether he is guilty of culpable homicide).

In this case the judge found that Oscar Pistorius did not actually (subjectively) foresee as a possibility that he would kill the person behind the toilet door when he pumped four bullets through the door. 

Like Mr. de Vos, when I wrote my original post I could not see how the judge could fail to come to the conclusion, on the facts known, that Pistorius did not foresee that possibility.  As far as I can see the issue was not properly dealt with in the judgment either.  What is more puzzling is that an acceptance of the argument that he fired the gun as a result of an involuntary muscle spasm would then be somewhat inconsistent with a guilty verdict on the count of culpable homicide.

While it would certainly have led to an undramatic trial, I always felt that by trying to prove the intentional murder of Reeva Steinkamp, the prosecution was aiming too high.  The state allowed Pistorius's defence to cloud the issues.  The simplicity of the question at the heart of the tragedy was overshadowed and drowned out in the melodrama of the saga of Oscar and Reeva, but it remained a simple question: Did Oscar Pistorius fire four shoots through the door believing that there was an intruder on the other side, and if so did he foresee that it could kill that intruder?  The issue of guilt or not on the charge of murder would hinge on whether it was reasonable for him to use lethal force. From what I know of South African law I believe the answer inescapably points to 'No'.

As Pierre de Vos concluded:

In the Pistorius case the question is whether there was any reason to believe Pistorius did not share the foresight that his actions could lead to the killing of a human being. The judge found that there was. The question is whether the facts support such a finding.

Perhaps the judge felt compelled to find as she did because the prosecution, in her view, failed to make this point beyond reasonable doubt.  If so, it is an appalling oversight on the part of Gerrie Nel, the prosecution barrister and in which case then perhaps Felicity Gerry is correct, and justice was done and seen to be done, however imperfect it may be.  But in the absence of clearer reasoning from Judge Masipa, we are left to guess, which is unsatisfactory from everybody's point of view.

The Power of Negative Thinking (Scottish edition)

There's a lot of keech, as they say in Scotland, bring spouted on both sides of the indyref debate. No, Scotland will not slide into catastrophe as an independent nation, and nor will it be a megarich socialist utopia with unicorns giving out free prescriptions. It probably will thrive and become wealthier in the long run, but the birth pains of getting there could well be pretty painful and I am certain that there will be some who will regret, in the short term at least, voting Yes. Conversely, it will probably see a rebirth of the sensible centre-right in Scotland, and some right-leaning No voters will quickly embrace and love the possibilities offered by independence.

Weirdly, though, it appears that about half of No voters want an independent Scotland to fail. I have been looking at the data tables for Sunday's Sunday Telegraph ICM poll that showed 'Yes' 8 points ahead. Martin Boone of ICM gave an interview last week to the BBC in which he expressed concern that the pollsters could get the result completely wrong, as they did in 1992. That tells me that even he isn't entirely comfortable with the results of ICM's own poll. It should be noted that the sample size was also smaller than usual (700), and it was online rather than by telephone (ICM's own telephone poll a few days earlier gave No a 2-point lead).

Anyway, I digress.  A big part of the No campaign has been that they believe Scotland having its own currency and central bank would be a disaster for the country in the short term (and they are probably right), to the extent that it's not currently even on the agenda: the plan is for a currency union with the rump UK (rUK). The No argument contends further that even a currency union with rUK would be bad for Scotland, even were rUK to agree to one.

Fairly logical so far. Where it starts to get weird though is that according to the ICM poll, half of No voters believe Scotland shouldn't be allowed (by rUK) to have a currency union (page 14).  Now, I accept that it is possible that a section of No, having given thought to the economic and monetary policy implications of a currency union believe that, actually, a new Scots pund would actually be preferable to a currency union. I suspect they are small in number though.

That leads to the conclusion that a very significant minority of No voters, believing that an independent Scotland keeping the £ sterling would be the lesser of two evils, also believe that Scotland should not be able to keep it in any case. Or to put it another way, having convinced themselves that Scotland won't be allowed to keep the £, or alternatively believing that Scottish independence and a currency union will damage the economy, they want to see Scotland not being able to keep the pound to vindicate their opinion and how they voted*.

I believe that psychologists call this cognitive dissonance. You and I are more likely to call it cutting off your nose to spite your face.



*(There is also the possibility that they believe that it would be unfair on rUK to allow this to happen; I can't see that equating with No's claims to also be 'Team Scotland').

The most annoying thing about Ian Paisley is that he actually was quite likeable

One of the most frustrating things about Ian Paisley, a man whom history ought to judge harshly for his role in creating and perpetuating a vicious cycle of violence fuelled mainly by his own sense of self-righteousness and a Bible-inspired sectarian disdain for the Roman Catholic Church and its adherents (or as my father used to put it, rather more succinctly, "that oul' bastard"), is that he was in real life very personable and likeable, and with a great sense of humour.

And while it was welcome that he became a peace maker later in life, I think Ian Jack has it right when he concludes that Ian Paisley exploited people's fears and fuelled a conflict, labelling former allies traitors and enemies devils, in large part to satisfy his own ego.  Northern Ireland would never be safe until it was in the DUP's hands.  Unfortunately for Northern Ireland, the manner in which he squashed other unionist leaders and ran his own party like a one-man band, has left Northern Ireland unionism led by a squad of petty political pygmies, to the detriment of all.

'I was rescued from the IRA that early' - Ian Paisley talks to Ian Jack

Why the Yes campaign has a lot in common with 'Chuggers'

Alex Massie, who I believed earlier last week had somewhat conceded one of the main arguments for independence, has written a really excellent piece in the Speccy.  I recommend anyone with an interest in Scotland's future read it.


Come in Britain, your time is up

Despite the fact that both the Yes and No campaigns have done their best to present this referendum as a battle between rival cost-benefit analyses, it is still – as it has always been – about the idea.

There’s always been a constituency for independence and it’s always been larger than many people imagine. Always. How often have you heard a variation on the theme of I like the idea but I’m no’ sure we could really do it? or Yes, in an ideal world and all other things being equal (but not, alas, in this world).

Even when the idea was ridiculous it was attractive, you see.

It reminded me of my days doing telephone charity fundraising.  The principles are the same: people like the idea of giving to charity, but often are reluctant to open their wallets.  What you need to do is give them a reason to do something they like the idea of doing anyway.  Voting Yes to independence is very much in the same vein.

'Yes' is gaining ground for precisely this reason.  As Douglas Alexander wrote the week before last in The Guardian, 'Scotland’s yes campaign has been based on emotion, not fact', which is precisely the 'No' campaign's problem.  When trying to get people to increase their giving level, you had to create an emotional hook, and create a space in which they could do something they liked the idea of doing, but which other factors inhibited them from initially agreeing to.  'Yes' has successfully created the emotional hook for Yes, and network effect is creating the space. That's why 'No' will not be able to regain the momentum.  I'm not yet convinced it will be enough to carry Yes over the line, but it is going to be very close even if they don't.

Will Scotland be pushed into what Quebecers call a 'neverendum'?

An Objective History of Slavery (or the persistence of liberal racism). Also, a dog running into the sea.

A few months ago, I was bowled over by an article by Ta-Nehisi Coates that enabled me to understand slavery and American history in a new light.  I was surprised at how little interest there was in the post, and wrote a follow up on that basis.  It was met with equal indifference.

I was somewhat worried that I was being hypersensitive, but my fears have been assuaged, somewhat, by a book review in yesterday's Economist, of Edward Baptist's The Half Has Never Been Told: Slavery and the Making of American Capitalism.  It was Coates who drew it to my attention on Twitter, and the review is really quite jaw-droppingly racist.

Anyway I just read a book about mass rape during war time. "Almost all the men were villains." Must not be history.
— Ta-Nehisi Coates (@tanehisicoates) September 4, 2014

Mind-boggling criticism of a book about slavery in the US South. pic.twitter.com/hjkjq2m7u6
— Matt Yglesias (@mattyglesias) September 4, 2014

The Economist apologized and withdrew the review, seemingly on the basis of the last line quoted above, but very little in the entire piece stands up to scrutiny.

That's right: slaves had a vested interest in making slavery sound, you know, worse than it was.  We need to be skeptical about the veracity of their testimony, and need to weigh it against the stories white slaveowners told about how well they looked after their slaves: "Jemima was practically a member of the family etc. etc."¡  One can only assume that we also need to take into account the rosy recollections of what anyone who has seen Quentin Tarantino's "Django" would know were called back then "house niggers": trusted slaves, who lived in the family home and part of whose job it was to ensure that the slaves did not escape¡

The ridiculousness of this assertion was highlighted by the fact that the picture used to illustrate the review was that of Patsey, Lupita Nyong'o's character in Twelve Years a Slave.  Anyone who has either seen the film or read the book will know that it was precisely because Patsey was the most valuable slave, that she suffered the most torture.  The entire critique is premised on the idea that if you treated slaves nicely they would not want their freedom.  For a magazine that supposedly subscribes to a liberal worldview it really is mindboggling.

Re-read, carefully, the concluding paragraph, ignoring the last two sentences.

unexamined factor

may have

surely

could have

Here we have someone writing a book review and picking holes in a very important historical work not on the basis of empirical evidence or research, but on the basis of casual racism and the fact that the idea that white people were to blame for slavery and without it the United States of America could never have come into existence makes the reviewer feel a bit uncomfortable.  The Economist clearly has some tightening to do in its editorial department.  And to answer the question I posed in my follow-up post mentioned above: yes, I think it is very clear that whites really do run scared of black history.

On the plus side, however, it spawned for a couple of hours #economistbookreviews on Twitter.

Nowhere in Mr. Dickens' account does he acknowledge the proprietor's generosity in providing orphans with factory work #EconomistBookReviews
— Katje (@silentkpants) September 4, 2014

Nobody even deigns to address the distinctly un-PC possibility that Josef K did it, and got what he deserved. #economistbookreviews
— Rebecca Schuman (@pankisseskafka) September 5, 2014

This account of the My Lai massacre is advocacy. The villagers are all victims, the US GIs who shot them all villains. #economistbookreviews
— David Corn (@DavidCornDC) September 5, 2014

"In her diary, young Ms Frank glorifies flagrant disregard for the law by her continued evasion of the authorities." #EconomistBookReviews
— Gibson Twist (@GibsonTwist) September 5, 2014

"All the passengers are portrayed as victims, and all the icebergs are portrayed as evil." #economistbookreviews
— Michael Schaub (@michaelschaub) September 4, 2014

#economistbookreviews Ultimately what dooms War and Peace to the remainder bin is its refusal to acknowledge Napoleon's gifts as a statesman
— Popehat (@Popehat) September 4, 2014

"The Famine focuses too much on potato blight and London's response. The Irish should've eaten less." #economistbookreviews @tanehisicoates
— Chris Connolly (@Cripipper) September 4, 2014

#economistbookreviews "The work, as its title suggest, focuses on Sophie's choice. But what about the choices the Nazis faced?"
— Popehat (@Popehat) September 4, 2014

@tanehisicoates Anne Frank's debut work would have benefited from a chapter or two detailing the German perspective. #economistbookreviews
— Aaron Rodriguez (@Arod95) September 4, 2014

And if even those haven't lightened your mood, here's a gratuitous video of a dog running into the ocean.

The Case For Scottish Independence by Alex Massie

I have largely kept off the topic of the Scottish independence referendum (or indyref, as it has become known), largely because I think it is for the people of Scotland alone to decide what's best for their country.  I'm not British, so the partition of that island into two separate countries doesn't have any emotional resonance for me, though I am from the UK, but I happen to feel that Scottish independence could be good, in the long run, for my wee part of the Kingdom.  That's not enough reason, though, for me to feel like I should try and persuade Scots to do something that might not be in their interests, just because it may be in mine.

(Quick thought experiment: Scotland votes Yes, but Dumfries & Galloway and the Scottish Borders vote No, and an armed militia demands their own separate devolved government remaining in the UK.  Should the British government: A) Establish a Parliament of Southern Scotland and exclude the area from an independent Scotland, or: B) Ensure that the democratic will of Scotland is respected...  Anyway, I digress...)

Slugger O'Toole had an interesting piece yesterday, provocatively entitled And so the “Oh F*cK” moment arrives for the No camp in the #IndyRef.  In it was a quote from a piece by Alex Massie,  a Scottish writer, broadcaster and unionist.

There is a sense, I think, in which many voters have tired of the endless statistical wrangling that’s supposed to predict – and prove! – the future one way or the other. If true, that’s a win for the Yes campaign since sidelining those concerns – particularly on the economy – opens a path to voters who quite like the idea of independence – the idea of Scotland! – but are nervous about how, or even whether, it might actually be accomplished.

From a Unionist perspective, it does not help that, in general, London has been useless. Even now Westminster seems more interested in the Clacton by-election than in the referendum that will decide the future stability and integrity of the United Kingdom. Viewed from North Britain, this seems desperately petty and small. There is, whether one likes it or not, a sense that perhaps they’re just not that into us. At the very least they appear to take us – and the result of the referendum – for granted. And this, naturally, cheers Yessers.

Then again, this can be a lose-lose situation for Unionists. London’s apparent indifference is galling but there are moments when you could be forgiven for thinking indifference is at least preferable to the ignorance – and indiscipline – shown by London-based politicians when they do speak about Scotland. Yes, Boris, that means you (though you are not the only guilty party).

Read those last two paragraphs again.  If the potential end of the United Kingdom isn't enough to grab London's attention, or at least distract it from the Clacton (yes, Clacton!) by-election, and convince it that it needs to pay more attention to Scotland, then I don't know what will.

Just as Antonin Scalia's withering dissent in United States v Windsor inadvertently handed victory to marriage equality supporters in federal courts across the United States, I think Alex Massie just made the best case for independence that I have see to date.

Wording of the Scottish Independence Referendum

I always thought the Scottish independence referendum question isn't worded very authentically. It should be:

Should Scotland be an independent country?

'Och aye, I suppose so'

or

'Naw, I wouldny be bothered'.

RIP Gerry Anderson: Hypno Hen

Rest in Peace Gerry, you were a broadcasting genius.

Do What You're Told And You Won't Get Hurt

The deaths of Michael Brown and Kajieme Powell in St. Louis have bothered me. They have bothered me not so much for their details, though I hope for the families of both men that when all the evidence emerges and is weighed that they feel the conclusions arrived at have delivered justice, but because of what they say, when taken together.

For that reason, as odd as it sounds, I want to set aside the arguments about whether Officer Darren Wilson and the two officers in the Powell case were justified in firing the bullets that killed these two men, though that is surely what the trial in the former case and the investigation in the latter will focus on.  I want to look at the total number of bullets fired, and what it says.

As I pointed out in my last blog post, police in Britain fired their weapons three times last year.  In both the Brown and Powell cases, at least three times that number of bullets appear to have been fired in each incident.  This is the aspect that worries me: multiple eye witnesses report that after some sort of scuffle at the police car, during which Wilson's gun was discharged, Brown set off running, and Wilson shot at him as he fled.  Forget what happened next and think about that for a moment.  If the eye witnesses are to be believed, and we now have so many that they are all part of a vast police-hating racially motivated conspiracy (and I am sure there are those who will want to believe that), Officer Wilson shot at Mike Brown as he ran away.  When two police officers fired at least nine bullets into Kajieme Powell at close range, three of these were fired while he was on the ground.  Both of these facts on their own should cause alarm, indeed outrage, among the public at large. In the sad circumstances of the deaths of these two men, however, it is a minor detail, though to me it speaks to the bigger problem.

As is stated in the British police college's guidelines on the discharge of firearms, and very graphically illustrated in the video at the bottom of page 1 of this piece in The Atlantic, (humblebrag: my last blog post got a mention on page 2, and in this Al Jazeera piece) that police officers do not shoot to wound, they shoot to incapacitate, and that can only effectively be done with an unholstered weapon at a distance of 21 feet or more, aiming at the torso.  "Incapacitate" is often expressed in the U.S. by police officers and gun enthusiasts as "neutralize the threat".  I find that worrying like a euphemism for "shoot dead".  Kajieme Powell was indeed close to the officers that shot him.  They could not have missed.  I believe they are trained to open fire with a "double tap".  A 'double tap' at the range in question is going to incapacitate. A 'double tap' is going to neutralize the threat.  A 'double tap' is probably going to kill.  The 9 or 10 bullets fired into Kajieme Powell, including a number while he was on the ground, are going to ensure that.  Threat neutralized indeed.

I will confess I have little appreciation for the stresses police officers in the U.S., or the U.K. for that matter, work under.  They do what is certainly a stressful and at times dangerous job.  32 of them died in the line of duty from gunshot wounds last year.  An even greater number died in Road Traffic Accidents.  What degree of risk the public can expect an officer to take while protecting the public is difficult to quantify.  I worry that too many in the Police believe the answer is none.

Deaths from Police Shootings... pic.twitter.com/y1qf6GDBv3
— ian bremmer (@ianbremmer) August 23, 2014

This opinion piece in the Washington Post by a 17-year veteran of the L.A.P.D. illustrates the point:

Worlds Apart

Ezra Klein hits the nail on the head re all that is wrong with policing in America:

"There is something wrong that the video seems obviously exculpatory to the police and obviously damning to so many who watch it."

Those with professional knowledge can speak to it better than me, but I suspect the protocol in Britain would be to park at a relatively safe distance, order civilians to get back, call for back-up and specialist assistance, while monitoring to ensure that Mr. Powell poses no threat to himself or anybody else.  What caused the situation to escalate to the point that the police felt so threatened that they needed to open fire on a mentally ill man carrying a *knife at his side was the arrival of the police. There is a serious problem in how US police perceive and deal with "threats". Mentally-ill people, even ones with knives, are primarily a threat to themselves. [UPDATE: The Police stated Kajieme Powell charged at them and he was carrying a steak knife. It was being reported in Twitter last night that it was a table or butter knife).

Nationalism has no Jim Allister, or Micheal Martin

I have been busy on a number of fronts recently so the blog has had to take something of a back seat.  If you know me though, you will have been able to guess that I was keenly observing last week's elections in Ireland, North and South, as well as in Britain and indeed Colombia (it was a fun weekend, though not so much for my partner).

An opinion piece I read today by Suzanne Breen caught by eye, since it chimed with my initial reflections after the conclusion of the local elections in Northern Ireland.

@PJM2010 @mickfealty If I were Doc Al I'd be on the phone to Mícheal Martin this afternoon. #SDLP
— Chris Connolly (@Cripipper) May 26, 2014

Breen's argument is that Irish nationalism in Northern Ireland is 'lacking a Jim Allister".  This is partially true, but glides over the unfortunate reality that someone who is to Sinn Féin as Allister is to the DUP would be big on the armalite and low on the ballot box.  However, the headline was almost certainly written by a sub and would not have been the one Breen wrote for herself.

The Pistorius defence

I would appreciate comment from any lawyerly folks out there.

I haven't been following the Pistorius trial very closely (hardly at all), but is it just me or are the media getting somewhat mixed up by the fact that he appears to be trying to argue, in two completely different ways, that there was not the necessary intent to be convicted of murder?  ("I fired the gun accidentally" [no intent] and "I intentionally fired the gun mistakenly believing that there was an intruder behind the door" [putative/mistaken self-defence]).

The fact that the media seem to be quite confused by it indicates how it might work as a trial strategy in front of a jury, but it is hardly going to wash in front of the Honourable judge.

Consider this from the BBC's Andrew Harding: "He knows that he could be cleared of deliberately killing Reeva Steenkamp, but still be found guilty of intentionally murdering "someone" behind a closed door."

That's not right at all, and Harding is mixing up transferred intent and the victim.  There aren't two murder charges - if without a lawful defence he deliberately fired at "someone" through a closed door that resulted in the death of Reeva Steenkamp then he is guilty of the murder of Reeva Steenkamp.

My enemy's enemy

Why the Liberal Democrats love UKIP, and how Nick Clegg may be the saviour of the United Kingdom.

It is a truism that in politics as in war, my enemy's enemy is my friend. This is being seen in Scotland right now, where Alex Salmond is rooting for a Conservative comeback in the opinion polls down south in the knowledge that the more likely a Tory government in 2015 appears, the more likely Scotland will say Yes to independence in September.

(It must be strange for David Cameron to know that the more likely it appears he will win the UK general election in 2015 the more likely it is it will be the last ever UK general election. The only person I can think of to have perhaps experienced similar emotions is Adolf Hitler in 1933.)

Nevertheless, this truism is something that appears to have been forgotten in much of the commentariat's analysis of When Nigel Met Nick, round 2.

I must confess from the outset that I have not yet had the dubious pleasure of watching this intellectual joust between a somewhat posh, privately-educated, former City commodity trader, MEP and self-proclaimed man of the people, and a somewhat posh, privately-educated, former political advisor, MEP and self-admitted son-of-privilege. However, it is pretty clear that the general consensus was that the UKIP leader Nigel Farage trounced Deputy Prime Minister and Liberal Democrat leader Nick Clegg, leaving Farage 2 for 2, as the Americans like to say.

According to the opinion polls Nick Clegg lost the first debate. he appears to have changed tack for the second resulting in even less success, leading some commentators to opine that in agreeing to debate Farage the Liberal Democrat leader had made an enormous error. He provided a fillip to the Kippers in advance of the European elections, and in the longer run damaged the pro-European cause and his own party, by reminding a broadly Euroskeptic British electorate that the Lib Dems, as well as being in favour of vivisection, chemical warfare, castration of homosexuals, denying women the vote, a 90% top rate of tax and the closure of all private television stations, they are an avowedly pro-European party. (Admittedly, I made up all the other policy positions apart from being pro-European, but given the current political mood in Britain, being pro-Europe or a Lib Dem is about as socially acceptable as any of the others).

Still cannot believe what persuaded Clegg to challenge Farage to a debate, nearly as bad as Cameron's mistake in 2010 to debate Brown/Clegg
— Lord Ashcroft (@LordAshcroft) April 5, 2014

Economics 101 and free speech

http://alj.am/1il8DMZ

Mozilla's co-founder and CEO is stepping down after a backlash over a $1000 donation he made to the Prop 8 plebiscite in California that instituted a constitutional ban on same-sex marriage.

The response of Mozilla's chairwoman, however, has made me even less likely to use their products:

'"She said that Mozilla believes both in equality and freedom of speech and that "figuring out how to stand for both at the same time can be hard"'

Sorry, that's just nonsense. It's not very difficult at all.

Everybody is entitled to freedom of speech and freedom of expression. However, if you are in business and decide to promote someone with particular views, I'm within my rights, as a consumer with freedom of expression, to show my opposition to those views by not buying or using your products.

Don't expect me to pay your wages to allow you to promote causes I disagree with.  So sorry Mozilla, its not hard at all: it's free market economics 101.

The funniest bit of all this has been the reaction of the conservative right. Consider below, some tweets from The Heritage Foundation, "A think tank devoted to the principles of free enterprise, limited government, individual freedom, traditional American values, and a strong national defense."

Back to school for you I think Heritage.

Internet defamation and EU law

Supreme court to hear internet defamation dispute - The Irish Times - Thu, Apr 03, 2014


I had blogged previously on the lack of clarity that surrounds the law on defamation on the internet in Ireland (and to a lesser extent in the UK), when lawyers for Angela Kerins rather remarkably threatened Irishcentral.com for speculating on what Ms. Kerins' salary is (information that was subsequently made public just a few weeks later).

According to today's Irish Times we may get some clarity on some of the issues, though given the backlog of cases awaiting hearing before the Supreme Court quite when that might be is still unclear.

The case is an appeal from the decision in McKeogh v Facebook & Ors. in which a student was incorrectly identified in a YouTube video as having failed to pay a taxi fare, and his name was bandied about on Facebook, YouTube and a number of different forums, in the process of which he was "seriously and nastily defamed" in the words of the trial judge.

(If you are getting a weird message below, ignore it and click where it says 'here' to read the judgment).



I mentioned in the original post that I was not aware of any Irish decisions that litigated the key issues, such as whether an ISP or web host is a publisher, and the extent to which Article 14 of the E-Commerce Directive provides them protection.  This case would appear to address these issues, but the appeal is against the interim injunctions that were put in place over two years ago (Irish 'justice' moves embarrassingly slowly), a full hearing of the issues being stayed until the appeals against the injunctive relief are heard.

Hopefully the Supreme Court will take the opportunity to lay down guidelines which can be applied if and when the substantive claim gets heard.

Nonetheless, any further clarification of the responsibilities and liabilities of web hosts and bloggers with regard to potentially defamatory material is to be welcomed.

The sooner this case gets a hearing the better.

The Oligarchic States of America

It is ironic that at a time when Russia and its oligarchic politics is more at the forefront of American political consciousness than at any time previously, the U.S. is sliding, slowly but surely, into a place where its democracy is up for sale.



Bill Moyers warned about it in a prescient article last week, in the shadow of Republican 2016 hopefuls such as Chris Christie scraping and fawning in front of gambling billionaire Sheldon Adelson in Las Vegas.



The Koch Brothers and the Danger of American Plutocracy | Blog, Money & Politics | BillMoyers.com



 It is a theme that today has been taken up by Senator Bernie Sanders, social democrat Senator from Vermont.

Democracy vs. Oligarchy http://t.co/mMqL1wPDDD pic.twitter.com/b0gIULarwN
— Bernie Sanders (@SenSanders) April 1, 2014

And today, in a widely anticipated decision, following on from the truly awful Citizens United decision, the Supreme Court removed the aggregate donation cap in McCutcheon v FCC.



It is a sad indictment of American democracy when one of its two major parties, after having lost 5 out of 6 presidential elections on the trot, has decided that its strategy for winning is through restricting opportunities to vote and unlimited spending by plutocrats and billionaires.

The Washington Post has included some great infographics on what this all means in money terms (click through graphic for full story).


Dahlia Lithwick has a great take on things on Slate, in which she analyses Chief Justice John Roberts' majority opinion (plurality, technically, Clarence Thomas wants to get rid of all donation limits completely, in comparison to Stephen Breyers who wrote the dissent.

Lithwick writes:

And why does this collective speech matter? Why are we talking about corruption?  Because, writes Breyer: “Where enough money calls the tune, the general public will not be heard. Insofar as corruption cuts the link between political thought and political action, a free marketplace of political ideas loses its point.” And yes, there is a silent “duh” in there.

She gets to the punch, however, in her analysis of where the real long term impact of this awful decision lies,  which is to make Breyers' highly cynical view of money and corruption in politics a reality.  The dangers of this are real, particularly in circumstances where across the developed world voting and political participation rates have declined as political ideologies have converged on a centre ground and voters' sense of impotence increases:

In which case McCutcheon is a self-fulfilling prophecy in exactly the way Breyer predicts: Money doesn’t just talk. It also eventually forces the public to understand that we don’t much matter. It silences. It already has. 

What a chilling prospect.

The DUP's goal is to kill the Ulster Unionists (with Sinn Féin's help)

Alex Kane has written a very good article in The Newsletter, analysing in the starkest manner I have seen yet the complete failure of Northern Ireland's unionist parties to pass the Ronseal test: they don't do what it says on the tin.

Not the Progressive Unionist Party.

And we're not just talking about the additional adjectives here; I think most people realised a long time ago that they appear to be there just for comedy value: the Democratic Unionist Party seems to be run on Leninist lines of authority; the Ulster Unionist Party have problems with geography; the Progressive Unionist Party has been regressing ever since the sad demise of David Ervine, and NI21 appears to be a reference to its membership numbers.


No, what Alex is getting at is the abject failure of the main unionist parties to put forward a positive case for the union of Northern Ireland with Great Britain.  To be fair to Basil McCrea, NI21 at least can see what the problem is, though time will tell if Basil is the answer (hint: Basil is not the answer, unless the question is what goes well with tomatoes and mozzarella).

Anyway, Alex Kane's article is an interesting read, but there is one aspect of it with which I disagree.  He states

There is absolutely nothing on offer, because the DUP is too concerned with keeping someone in the First Minister’s office, while the UUP is running around trying to find something – anything, it seems – to save itself from further electoral decline.

I think Alex is confusing ends with means.  Here's a wee secret neither the DUP nor Sinn Féin want you to know: Martin McGuinness is never going to be First Minister of Northern Ireland.  The amendments to the process for electing the FM, inserted at the behest of the DUP at St. Andrew's, mean this is never going to happen.

Unionists currently have 13 more seats in the Assembly than Nationalists.  It would require Nationalists to get a net gain of 7 seats before they would be the biggest grouping.  To give an idea of how difficult that would be, the last election saw Unionists come out as before, Nationalists -1 and Others (Alliance) +1.  In 2007 Others gained 2, Nationalists gained 1 and Unionists lost 1.  So over the past decade, Nationalists have made a net gain of zero over unionism.  It's going to be a slow process, to put it mildly.

NI21

But, let's suppose for argument's sake, that Nationalists seem poised to overtake Unionists as the largest designation.  Sinn Féin is easily the largest Nationalist grouping, but the SDLP have retained a sticky (see what I did there?) 10%-12% of the vote.  In the name of saving the FM's name plate for a Unionist, the DUP will hoover up the UUP vote, and the UUP will willingly comply, sounding their own death knell.

For you see, the amendments from St. Andrew's mean that the First Minister is not necessarily from the largest designation: if the largest party of the largest designation is not the largest party overall, then it is the largest party overall that nominates the First Minister.  Under those circumstances the DUP will be able to squeeze the unionist vote in a way that Sinn Féin will never be able to do to the SDLP.

The DUP is always going to be a bigger party in the Assembly than Sinn Féin.

In fact, it quite suits Sinn Féin's longer term agenda to be always the bridesmaid and never the bride, which is why they agreed to the procedure, though I am sure they will complain about the unfairness and a unionist veto should the circumstances ever arise.

So on this one aspect, I think Alex is wrong.  Sinn Féin is never going to occupy the First Minister's office, or at least not in the next 15 or more years.  The DUP knows that, and Sinn Féin know that, but they keep it secret in another of their little understandings, to allow the DUP to permanently squeeze the life out of Mike Nesbitt's party.  And with his witterings today about Unionist unity, Mr. Nesbitt took one more step towards leading his party into oblivion, and one step back from making the case for the union.

And as for Sinn Féin, their job just gets that little bit easier.

Do whites really run scared of black history?

In my blog post yesterday, I encouraged readers to read Ta-Nehisi Coates' essay, 'Other People's Pathologies, in The Atlantic.  As I normally do, I tweeted a few times with a link to my blog post:

Without slavery there is no democracy; without slavery there is no American dream; without slavery there's no America http://t.co/s5ghnITEgG
— Chris Connolly (@Cripipper) April 1, 2014

The United States didn't save black people; black people saved the United States of America: Ta-Nehisi Coats nails it http://t.co/s5ghnITEgG
— Chris Connolly (@Cripipper) April 1, 2014

Black culture, white supremacy, and American democracy. http://t.co/s5ghnITEgG
— Chris Connolly (@Cripipper) April 1, 2014

What's been fascinating to observe is the reaction to it, and by that I mean the relative lack of reaction or interest.

Normally when I tweet a blog post, no matter how banal, it registers about 5 or 6 click-throughs from Twitter to the blog post.  Each of these tweets got somewhere between 0 and 1 person clicking to read it, at roughly the same times of the day as I would normally tweet the link.

Regular sources of traffic to the blog (from the UK), such as Lib Dem Blogs and Lib Dem Voice have been noticeably quiet in terms of traffic.

Have I failed to sell the blog post as well as others I have written, or is indifference to black history as bad as (or perhaps even worse than) I alluded to in the post itself?  Writing the post has been almost as enlightening as reading the Coates essay.

White supremacy and the birth of American democracy

Had the Union soundly and quickly defeated the Confederacy, it's very likely that slavery would have remained. Instead the war dragged on, and the Union was forced to employ blacks in its ranks. The end result—total emancipation—was more a matter of military necessity than moral progress...

The United States did not save black people; black people saved the United States of America.  With that task complete, our "ally" proceeded to repay its debt to its black citizens by pretending they did not exist.

Ta-Nehisi Coates has written one of the most powerful essays on American history, and the black experience within it, that I have ever read.  I hesitated about including the words "and the black experience within it" because, at its core, it runs against the spirit of the truths that Coates writes.

Tony Benn honoured on streets of London

In the midst of a lot of other things happening, the death of Tony Benn slightly passed me by. Mark Hennessy has a rather simple but touching piece on the funeral a man who, irrespective of whether one agreed or disagreed with his political outlook, was decent and honourable, and for whom the struggle for social justice and democracy never ended. His absence from British public life will be missed.



Tony Benn honoured on streets of London

Peace brings no dividend to the poorest in Northern Ireland, but how do we measure poverty anyway?

Peace brings no dividend to the poorest in Northern Ireland - Eamonn McCann



There is an interesting opinion piece in today's Irish Times, discussing a Joseph Rowntree Foundation report into economic deprivation in Northern Ireland, and concluding that devolved government has made things worse, economically, for the poorest in Northern Ireland rather than better.



This could come as no surprise.  While the involuntary coalition system that arose from the Good Friday Agreement might have had a chance of working if the Ulster Unionist Party and the SDLP had remained the two largest parties, it creaks under the strain of domination by two parties whose existence and electoral success depends on perpetuating the division of Northern Ireland into us and them (or as we say in Northern Ireland "usuns" and "themmuns").

Aim High Vote Lo; Vote Yellow Get Green?

Let me start by saying that the yellow in the blog post title refers to the colours of the Alliance Party of Northern Ireland, and nothing else.  It might seem like a strange disclaimer with which to start a blogpost, but TWGOOFBTO in Northern Ireland (those who get out of bed to be offended) caused Ulster Unionist councillor Michael Copeland to have to issue an apology to the Alliance Party's candidate in the European elections over a tweet of his expressing similar sentiments.


One of Northern Ireland's claims to fame is that it is home to the the highest concentration in the world of TWGOOFBTO's.  In fact, Michael Copeland's tweet was part of a wave of reaction from TWGOOFBTO's to comments by Anna Lo, in which she expressed her support for the idea of a united Ireland, and said that perspective stemmed from being "anti-colonial".  (That being so, more than anything else, it is an indictment of the SDLP that they couldn't attract her into their ranks.)

"The Russians are a tough bunch of bastards"

That, at least, was Richard Nixon's verdict on November 1971.  His successors in office since 1989 would have done well to remember that.  The oafish, drunk, incompetent Boris Yeltsin was an exception and a national embarrassment to most Russians.  He is widely reviled for precipitating the disintegration of the Soviet Union, and facilitating the theft of the state's wealth by a small number of oligarchs.  The Clinton era is remembered in the US as the good times.  In Russia they were, for most people, a time frightening change and economic hardship, with a dose of national humiliation layered on top.

The years of the Bush administration saw better economic times in Russia, as Vladimir Putin brought a degree of stability to the country, but in foreign policy, the former KGB man Putin saw his country suffer (what were in his eyes) repeated indignities.  The US embarked on wars in Afghanistan and Iraq.  NATO and the EU's borders raced eastwards, pushing up against the Russian frontier itself.  The fruits of Clinton's air war against Serbia (Russia's long-standing friend and ally) were reaped by Kosovar independence.  George W barely missed an opportunity to kick the Russian bear in Poland, the Czech Republic and Georgia.  In the dying days of the crippled Bush presidency the bear gnarled, briefly, over the latter.

And while Obama and Secretary of State Clinon famously (embarrassingly now, looking back) tried to "reset" relations with Russia, preoccupied with Libya, Syria and a "pivot to Asia", when the Obama administration did pay attention to Europe, its focus was on the crisis in eurozone.

Colombian President pisses away poll lead

I'll freely admit, this is puerile, childish, base and beneath me, but I could not resist the headline once I had come up with it in my head.

And then again it's not every day that a world leader, up for re-election in 8 weeks' time, pees himself in public.

The Crimean hostage crisis

The Hindustan Times, 18th March 2014

This morning Russia and the newly declared independent Republic of Crimea (along with the city of Sevastopol) signed a treaty with Crimea to accept it as a subject of the Russian Federation on 1st January 2015.

For Russia's take on what this all means, Russia Today has some interesting coverage here, including Putin's placing the blame squarely at the feet of the "neo-Nazis, nationalists and anti-Semites" who seized power in a coup on Kiev.  (Not that adherence to the Ukrainian constitution and removal of Viktor Yanukovich from office by the legal method of impeachment would have made much difference, but the failure to do so certainly did give ammo to Moscow to de-legitimize the new Ukrainian government).

Amidst my musings on Twitter yesterday, I observed that the biggest threat of conflict in Crimea came from the plight of the Ukrainian military now trapped on the peninsula.

A message from Ireland to the peoples of the New World

See the full "modest proposal" here.

Not ever!

More Obamacare lies and bull

Consider this story I just came across, admittedly on 'LifeChoice News', but carrying a local television story from Sherman, Texas.

The story is this: this self-employed contractor was previously on his wife's insurance, but her employer stopped providing coverage.  A lot of employers have used the excuse of the Affordable Care Act to stop providing spousal coverage, when Obamacare in fact has little to do with it.

Anyway, back to the Hubbses.

The ultimate hypocrisy of being anti-abortion and anti-Obamacare

I feel the need to get something off my chest on what is just about the liveliest third-rail topic in any country's politics.

One of the things that has bothered me for a very long time (amid a very long list) about those who scream from the rooftops that the Affordable Care Act ("Obamacare") is going to destroy civilisation and America's health care system ("the greatest in the world" unless you use pretty much any metric used to measure the quality of health care systems) is the fact that very, very many of them identify as being anti-abortion (or "pro-life" as they would like to put it).

Watch The Daily Show's Asif Mandvi render a Fox News correspondent speechless while covering "the greatest health care system in the world (if you are outside the US you are going to have to Google the video and try and find it yourself this time!)

The Daily Show
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Now, there are of course all sorts of arguments to be had about when life begins and if and when abortion should be an appropriate option for a woman to have, but we don't need to go into that here.  What we do need to do is to take, at face value, the beliefs of people who call themselves pro-life, that they believe that abortion is murder.  Not only murder, but the most wicked and nefarious form of murder: the murder of a totally defenceless child (so defenceless that it couldn't even survive outside its mother's womb).  And to make matters worse, the person instigating this heinous act, is none other than the child's own mother.

Viewed from that perspective and holding those views, abortion really is a very wicked thing.

Is MH370 in Central Asia?

This is the question that Slate is asking.

This thesis hinges on the idea that a large civilian aircraft flew across either Indian or Chinese airspace without either of the militaries noticing.

It would also depend on the aircraft flying close to the Indian-Chinese border, above Tibet, which is a tense and tightly guarded frontier.

Let's just say I am very skeptical.

16/3/14 UPDATE:

No runways in Central Asia were even in range.

Nice job by @WNYC plotting all 634 runways there were apparently in range for #MH370. http://t.co/JRNS7L6JZQ pic.twitter.com/kF9Z0RZnkt
— Jim Roberts (@nycjim) March 16, 2014

McConnelling

There is a new sensation sweeping the nation thanks to Jon Stewart at The Daily Show, and the slightly surprising figure of Senate Minority Leader and Senator for the great state of Kentucky, Mitch McConnell.

McConnell is up for re-election in the fall, and his team last week released a 2.5 minute long campaign video, featuring Mitch doing things that people in campaign videos do: walking with students; sitting with his wife; making a speech; meeting workers.

And the message that went with it?  Well, there wasn't one.  There were no words at all in the video, just a weird background elevator-type piece of music.  The video is being put out so that so-called Super-PACs (political action committees) that are allowed to spend unlimited amounts of money in support of McConnell's campaign so long as he does not co-ordinate or direct them can use the footage to make their own videos in support of him.

The Daily Show
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Viewers in the UK or Ireland should be able to see some of the DS footage here.

38 reasons we should hate the French (or at least dislike them mildly)

I posted this earlier today, and then realised that it probably requires a bit of context.

France v Ireland: preview

There is a big rugby match on tomorrow between Ireland and France.  A really big one, that will see the greatest rugby player of his generation, and the greatest Irish rugby player of all time, Brian O'Driscoll, retire from international play on the same turf where he first shot to stardom.

If Ireland beat France, and England don't run up a victory margin of 50-odd points against Italy, then Ireland will win the 6 Nations Championship.

But, we are really bad at beating the French, especially in Paris.  In fact we have only managed it twice in the past 40 years.

But this one's for BO'D.  For BO'D and Ireland.

38 reasons we should hate the French (or at least dislike them mildly) - The Irish Times - Fri, Mar 14, 2014

Numbers 1, 18 and 38:

Thierry Henry

Jesus chose 12 men first time round

This time it looks like he's settled on 5 Guys.

I was surprised when the cashier told me that water and wine were free.