The strange and unfortunate decision by the full Appeal Court of the First District in the Michelle Kosilek case gets not only my thoughts yesterday. The insightful legal view today came from Jennifer Levi, director of the Transgender Rights Project at Gay & Lesbian Advocates & Defenders (GLAD).

She has been involved in the case and similar ones for a long time. She too expressed surprise and disappointment at the 3 to 2 panel majority’s finding that Kosilek could be denied sexual-reassignment surgery. That came despite the strong majority of Department of Corrections medical and mental health professionals saying such treatment was necessary.

Levi would not be backed into saying what the motivations of the three-judge majority was in denying treatment or in overruling trial judge Mark Wolf’s decision. She did concur with dissenting Judge Ojetta Thompson’s inference. That opinion noted the difficulty many have in thinking about what they find “strange…immoral…unfamiliar.”

See the scathing dissent to understand the legal issues and the flaws in Tuesday’s decision. The 117-page ruling, majority and dissents, is here. Fortunately, Judge Thompson in the lead dissent covered the content of the majority decision thoroughly. You can start on page 71. Judge Mark Wolf’s original 128-page decision from two years ago is here. He shows his work and analyzed all the ideas and details.

She discussed the dismal and daunting options left to Kosilek, who can appeal to the SCOTUS or live with the DOC’s solution of hormone treatments and cosmetics instead. No decision on appeal has been made.

She spoke of the implications of this ruling. Not only does this imply that the DOC can deny such surgery to transgender inmates, this can extend to other medical treatments. Largely, under Eighth Amendment standards, we provide necessary care for the likes of heart disease, broken bones and such. Yet, here the majority ruled that the DOC is not allowed to shop for doctors to support its denials (footnote on page 57), but can take a second, minority opinion if it chooses. Likewise, the majority ruled on what seems to be a red herring of pre- and post-operative security concerns for Kosilek. From her prison behavior and from the experiences with other transgender inmates, Wolf was correct in dismissing such arguments, I say.

Click below to listen in as Levi discusses both the Eighth-Amendment issues and the relationship between the district’s Court of Appeals panels. She does not see how this case even qualified for a full en banc review.

I’ll keep tabs on this case and follow up as necessary. It is a sad ruling.

~Mike

icon for podpress  Kosilek Analysis [22:43m]: Play Now | Play in Popup | Download

In a Scalia-level travesty, the federal Court of Appeals here considered the case of Michelle Kosilek a second time and a 5-judge panel overrules both a 3-judge version and the US District Court trial judge, Mark L. Wolf. By 3 to 2, they denied sex-reassignment surgery to the transgender inmate. That decision rejected the previous courts’ reasoned findings that the MA Department of Corrections was violating Kosilek’s Eighth Amendment right to avoid cruel and unusual punishment by denying surgery.

See the scathing dissent to understand the legal issues and the flaws in Tuesday’s decision. The 117-page ruling, majority and dissents, is here. Fortunately, Judge Thompson in the lead dissent covered the content of the majority decision thoroughly. You can start on page 71.

Judge Mark Wolf’s original 128-page decision from two years ago is here. He shows his work and analyzed all the ideas and details.

This is a real and serious blunder that will not understand. That is scant comfort to Kosilek, who has been fighting for surgery for over a decade into her life sentence. Her remaining hope is a SCOTUS hearing. Of course, as of today we don’t know her intent or if the SCOTUS would hear the appeal.

I spoke of the decision, but honestly, you can’t do better than reading Thompson’s dissent.

icon for podpress  Michelle Kosilek [19:04m]: Play Now | Play in Popup | Download

Forget the dramas of stage, screen and radio where the bad guys paid their debt to society. They walked out of prison and reinvented themselves as good guys.

We can’t have that and look to the Hester Prynne or Jean Valjean models. It seems Americans can’t stop piling on convicted felons, even long after their terms are over. State and federal laws work for perpetual punishment. Forget that limiting chances for employment keep someone poor and make them more likely to re-offend. One mistake is too many.

I kicked state and federal perpetual-punishment forms for convicted felons who have served their terms. While the feds claim to refer to state laws on this, they mandate a remarkable set of restrictions — juries, elections, holding office, federal employment or contracts and on and on. Some require getting a Presidential pardon, similar to many states that require one from the governor and sometimes legislature as well.

I wandered into Mark Walberg territory, as he has run afoul of MA restrictions and is about to beg for a pardon here. (Instead, he should lobby for reforms for the many thousands affected by perpetual punishment and not just himself.)

Finally there’s musing on the reasoning behind this vindictiveness against former felons. I’ll put it down to the Protestants who make the laws. One strike and you’re out. We could learn from the Catholics here.

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Just Mike this week talking post-prison punishment. Is there any validity to paying yoru debt to society? Instead, our laws and regs seemed vindictive and self-righteous.

Talk fundamental civic duties and rights, such as voting. Only two states let prisoners vote and only 13 let them vote right after they have served their terms. How about giving ex-felons a stake in and duty to the system?

Of course, there are criminal records that often mean former prisoners can’t get hired (and stay poor and again out of the society flow). There are restrictions, some somewhat logical like no gun permits, and others that prevent business ownership. (And, yes, I’ll hit on Mark Robert Michael Wahlberg’s plea for a pardon.)

If you can listen live Tuesday, Dec. 9th at 2:30PM Eastern, you might want to call in at 718-664-6966. I’m happy to take calls, but won’t connect those from blocked/private numbers. To catch the show, click this link.

The show will be on demand at that link, back here at Left Ahead and on our iTunes channel.

turtle cowardAs hard as it may be to reconcile today, our national anthem, The Star Spangled Banner, uses the words of Francis Scott Key, including, “O say does that star-spangled banner yet wave, O’er the land of the free and the home of the brave?” Forget it.

What we see now is an authoritarian fetish. Do whatever anyone in uniform tells you…without question…without hesitation. We cede our liberty and change our motto to the provably irrational IN COPS WE TRUST.

I go on here about looking beyond the obvious tragedy of the deaths of Michael Brown and other young men of color by police bullets. The big dot to connect is to how many Americans hold that obeisance to cops and other authority figures is both necessary and wise.

Even our wishy-washy President announced ideas for reforming and maybe restraining rogue police, with the idea of arresting the history of police killing civilians and almost invariably being held as justifiable, a clean shoot in blue parlance. Yet, Obama’s tepid plans call for the likes of training — telling police again what they have heard so often about obeying laws — and equipping maybe 10% of the nation’s police with body cameras. Oh yeah, and he fantasizes that regulating military weaponry given to police forces will somehow do something good.

Neither of those nor his related sops will satisfy anyone or guarantee bad cops change their behavior or go away. Cops already know what they are supposed to do; they just don’t do it far too often. Body cams are easy to circumvent or not activate in times of ill intent.

Instead, we need some real measures, such as:

  • Real data from the smallest police force up to the FBI. We do not track death by police. We must and we have to see which are deemed justifiable.
  • Civilian review boards in every city, town and county. Police have a shameful history of not policing themselves. They need oversight with power.
  • Prosecution of rogue and misbehaving cops. What incentive does armed officers have to obey the laws when they know DAs, grand juries and judges will let them skate?
icon for podpress  America Obeys [30:22m]: Play Now | Play in Popup | Download

Mike BallIn homage to Thanksgiving, Mike shifted from the usual politics to food. This was a show about his upbringing, family gardens, Boomer lack of choices, his grandparents, shopping open-air markets, and stocking a pantry and a spice cabinet.

His WV grandparents grew and made the food. He learned by doing from elementary school by cooking for his working mother. He loves all aspects of food, from farming to selecting to preserving to prep to cooking to eating.

There is special emphasis on open-air markets, like Boston’s Haymarket. Walk through once to scope out the choices, quality and prices, then a second time to buy. That lets you plan the week’s menu based on the treasures you have in your bags.

Likewise, he advises stocking your pantry and spice racks well. Your ideal should be to have at hand what you need to work out of your fridge and pantry to make a whole meal.

Otherwise, next week may be a bye. We have lots of guests for our big meal and our ensuing battle of the pies. Then it’s back to politics.

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Marc Solomon mug, from his websiteMarc Solomon is justifiably flogging his newly published Winning Marriage: The Inside Story of how Same-Sex Couples took on the Politicians and Pundits — and Won. He is national campaign director for Freedom to Marry and has been a key player in several rights groups for 13 years.

Eager-Reader Note: You can order his book through his website. Click on the title above to go there.

In fundamentally another stop on his book tour, Solomon came on to answer past, present and future questions about marriage equality in the U.S., as well as describing what’s in WMTISOHSSCTOTPAPAW. We’re not huge on promoting books. That’s for the likes of The Daily Show. However, I think this is one is really timely, very important, and with a strong local angle.

Solomon admits we aren’t quite to full marriage equality yet, but expects it soon. He figures that with or without Chief Justice John Roberts’ vote, the Supreme Court will expand it to the nation, likely this term, by the end of June 2015.

Getting there has not been easy nor linear. Click the player below to hear some of the road blocks and struggles. He recounts the anguish of California’s Prop 8, which stripped legislated equality away, only to have it restored in another initiative. There, then Gov. Arnold Schwarzenegger “punted” as Solomon put it, after vetoing SSM twice and claiming the courts should decide. In the end though, Schwarzenegger aided the cause by not fighting the result.

Solomon also recalled the struggle to keep marriage equality alive in MA, the first state to legalize it, with the Goodridge decision of our Supreme Judicial Court. Efforts to overturn that pivoted on a ballot initiative that would require only 25% of the combined bicameral legislature to put to a risky vote. Listen in as Solomon describes what worked in MA and later elsewhere. Convincing lawmakers to support equality required gay couples, many with children, to visit their Reps and Senators to simultaneously present themselves and plead the case. That made the difference here and elsewhere.

While that campaign went on, Solomon said the pro-marriage-equality forces often felt the whole world opposed them — leadership in the Vatican, the commonwealth’s Republican party, local pols like Sen. John Kerry, and national ones like Karl Rove. He talks about how their strategy won the day, even with legislators from rural and more conservative urban areas.

Now, Solomon says, the anti- forces have pretty much lost their strength. The Catholic Church has shifted its position, the Mormon Church has backed away, and the professional anti-gay groups have much less support as the nation favors SSM by 60% or more.

For one point, Solomon is much kinder to President Barack Obama than I on the issue. Many political insiders hold that Obama was always pro-SSM but cynically held off saying so before his first election. I am incredulous that he and his wife, both lawyers with him also a former law professor, certainly knew the distinction between religious ritual and civil marriage.Solomon, who was privy to White House thinking, phrases the process leading to Obama’s support for equality differently. Solomon sees a very narrow range where politicians feel comfortable making definitive statement on controversial issues. “It’s simply the way the political process works,” he said.

~Mike

icon for podpress  Marc Solomon [29:52m]: Play Now | Play in Popup | Download

Evan FalchukAlthough the polls disagreed, Evan Falchuk was spot on when he spoke with Left Ahead in September. He stated firmly that he and running mate Angus Jennings would get 3% or more as Gov./lG candidates this month. They got 3.3%

He came on again to talk about what that 3% threshold means — recognition of his United Independent Party by MA, a big increase in how much they can raise from each donor, and what the next steps are to build on the party status.

UIP Platofrm: The detailed and comprehensive party platform is on its site here.

The instant pundit cliché for Falchuk’s recent run is that he won by losing. That is, as he told us two months ago, it would be a real long shot for him to win the top office, but he was positive of the 3%. That cliché seems to assume the UIP is one and done, much like the pale and frail Green-Rainbow Party.

He and I got down into some gears today, aspects I haven’t heard in other interviews with him. Well, neither of us is shy or tricksy, as Gollum might say. Click the player below to listen in to hear about the likes of:

  • Where did this elaborate platform come from? (A big part of the answer is that a group of 56 “concerned citizens” agreed on the content and specifics.)
  • If front-man Falchuk disappears what happens? (He alleges they are set up for that and have a deep bench of involved members.)
  • Can and will Falchuk keep pouring in personal money to keep the UIP afloat? (No. They’ll refuse superPAC money, but with the new fund-raising rules as an official party, they expect to get plenty to survive.)
  • Can they enroll over 40,000 voters in the UIP to keep the party alive? (That’s a big push already underway now and they fully expect to do that so they don’t have to worry about percentages in future elections.)
  • Can they get candidates to run? (They already have offers from over 20 and are just beginning to recruit. So, yes.)
  • What offices will the UIP be able to and seek to win going forward? (Until the next gubernatorial race, they look to run for legislative offices.)
  • Do Falchuk and Jennings feel like spoilers, Nadar-ish? (No data don’t support that.)

Listen in as Falchuk describes the UIP plans. He also dishes on the cynicism of Dem Martha Coakley and GOP Charlie Baker. Neither would be specific in their planks, in contrast to the UIP platform. He attributes that to their desire to avoid getting called when they alter or reverse positions (maybe in response to donations). He says that’s the real advantage of being specific and sticking to it.

~Mike

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The double feature this week will be United Independent Party founder Evan Falchuk and then Freedom To Marry national campaign director Marc Solomon.

The UIP earned full party status in MA for its 3% of the vote 11/4. Of course, I’ll ask what’s next, when they will field a full slate, and how they convert voters to members. If you can listen to Falchuk live,click here Monday 11/10 at 2:30PM.

The following day, Solomon will discuss his just-published book, Winning Marriage: Thke Instide Story of how Same-Sex Couples Took on the Poloiticians adn Pundits - and Won. He was a key player from the beginning in MA, CA and elsewhere. I’ll have him expand on key events and maybe get an insider’s view of President Obama’s evolution (ahem). If you can listen live, click here Tuesday 11/11 at 2:30 Eastern.

Both shows will be available to hear or download on demand at their URLs, back here at Left Ahead or on our iTunes page.

MA nods GOP

November 5, 2014 | Comments Off

In a rambling recap of yesterday’s election results, Inever even got to the US Rep race and such, only touched on the cabinet-level votes and such. Instead it was Republican Charlie Baker winning the governorship, views on the national trends and a long detour into New Hampshire’s US Senate race (Jeanne Shaheen v. Scott Brown).

I think Baker will remain wishy-washy. He has only recently and after his slim victory promised to reveal a platform and what will pass for a vision (how do you elect a governor without knowing what he’s about?!). He came to office with a very right wing LG, Karyn Polito. She was on four years ago here when she ran for MA treasurer; you can hear her here. I don’t expect her to be a policy maker or to have much impact unless Baker drops dead.

The rest of the cabinet is largely women. Had Coakley won, it would have been a more impressive sweep,with her bringing Kerrigan along as LG. Suzanne Bump won another auditor term, Coakley protege Maura Healey will be AG, and Deb Goldberg treasurer. Otherwise MA voters maintained their foible of not electing women as Gov. (and only very recently one (Elizabeth Warren) as US Senator. That’s a real standout nationwide; it’s a commonwealth neurosis.

I also contend that Democrats failed the nation as they did themselves in losing offices by hiding from President Obama. Had they run on the Affordable Care Act (Obamacare) and highlighted the great jobs and economy numbers under his administration, they would have been seen on the winning team and would have come out winners, instead of ceding the Senate to the GOP. Pretty dumb.

The interactive map of MA by town and county shows were Baker and Coakley prevailed. See it here. She owned the urban areas and Westen liberal section, he where the well-off conservatives count their possession. Thus it has long been left/right here.

~Mike

icon for podpress  MA Elections Recap [31:13m]: Play Now | Play in Popup | Download