Austin Chronicle

Hemp Hemp Hooray

Patients and advocates filled the House Criminal Jurisprudence Committee room on April 5 to testify in favor of HB 658, which would offer medical marijuana patients an affirmative defense against prosecution for pot possession.

The bill, filed by Rep. Elliott Naishtat, D-Austin, and co-sponsored by Reps. Terry Keel, R-Austin, and Suzanna Gratia Hupp, R-Lampasas, would offer the defense for patients using marijuana on a doctor's recommendation for the treatment of a bona fide medical condition. It would also prohibit law enforcement from investigating doctors on the grounds that they'd discussed marijuana with their patients.

Twenty-six states have already recognized the benefits of medical marijuana -- including 10 which have legalized medi-pot and two, Florida and Idaho, which have passed laws creating a "medical necessity" defense to prosecution, akin to Naishtat's current proposal. "This is an issue of compassion, and [of] the right to effective health care treatments," Texans for Medical Marijuana Executive Director Noelle Davis told the committee. The bill is still pending in committee.

Redefining Hemp

In other news, U.S. Rep. Ron Paul, R-Surfside, intends to file legislation this spring that would redefine industrial hemp under the Controlled Substances Act, removing the de facto federal ban on agricultural hemp production. "This is an industrial product," said Paul spokesman Jeff Deist. "This would essentially eliminate the federal roadblocks to industrial hemp production."

According to a recent report from the Congressional Research Service, the U.S. is the only industrialized nation that does not have an established hemp crop. And the demand for hemp products -- from textiles to auto parts to foods -- continues to grow, meaning U.S. companies must import hemp products for sale in the states.

Hemp farming used to be an agricultural staple -- the government actually encouraged production during World War II -- until changes to the Controlled Substances Act made continued production untenable. The CSA drug-war era revisions eliminated the distinction between breeds of marijuana, thus placing hemp regulation under the authority of the Drug Enforcement Administration, which is charged with approving, denying, or just ignoring hemp farming license applications. (The DEA has only ever issued one license, which has now expired, to hemp growers in Hawaii.)

Nonetheless, five states -- Hawaii, Montana, Kentucky, West Virginia, and North Dakota -- currently have laws that legalize and regulate hemp farming; similar legislation is pending in California, Oregon, and New Hampshire. Deist said that the government's broad definition of marijuana, which includes industrial hemp as a Schedule I narcotic, is "preposterous."

"Hemp doesn't fall under the same category [as illegal marijuana] and it is silly that it does," he said. "This is an industrial product." The ban on hemp is merely an "off-shoot of this mentality from a war on drugs, and is not based on reason or fact. There is no rational policy right now." Deist said Paul expects to file the legislation in late May or early June.

Evil-Weed Rhetoric

Speaking of irrational, federal drug czar John Walters, head of the White House Office of National Drug Control Policy, whipped out his hysterical evil-weed rhetoric last week during a visit to Cincinnati, claiming, again, that marijuana is a hard drug and is now the primary reason for admission to drug treatment facilities, reports the Cincinnati Enquirer.

Walters' pot protestations have become somewhat tiresome -- along with the dubious drug treatment stats, Walters also likes to claim that today's pot is super potent, with THC levels up to 20 percent and higher -- but the man is nothing if not persistent. During his Cinci speech, Walters said it's "crucial" to target preteens with an anti-pot message, since "studies show" that people are less likely to become dependent on drugs after age 19. Marijuana abuse, he said, is a "pediatric-onset disease."

More on the Medi-Pot Wars

Medical marijuana supporters converged on the Texas capitol Feb. 17 for the Texans for Medical Marijuana lobby day. Medi-pot patients were joined by members of the medical and religious communities to urge lawmakers to pass HB 658 – authored by Rep. Elliott Naishtat, D-Austin, and joined by Reps. Terry Keel, R-Austin, and Suzanna Gratia Hupp, R-Lampasas – which would create an affirmative defense to prosecution for marijuana possession and forbid any law enforcement from investigating licensed doctors for discussing marijuana as a treatment option with their patients.

Patients and others support medi-mari "not because they want to have a party, not because they want to do something deviant, but because they want to stay alive," TMM executive director Noelle Davis said during a noon press conference on the Capitol steps. "This is not about partying, it is about health care."

In all, 26 states have laws that in some manner recognize medi-pot, including 10 that legalize it outright. Florida and Idaho have laws allowing a medi-mari defense, similar to the one now before Texas lawmakers. (Keel authored a similar bill in 2001 that died in committee.) "There is ample evidence that marijuana is beneficial to people suffering from the chronic and debilitating pain associated with cancer, AIDS, and multiple sclerosis," Naishtat told supporters. "Under my bill, a patient would have to prove in court that he or she was suffering from a bona fide medical condition, and that a physician had discussed or recommended marijuana as an option to alleviate the symptoms of a medical condition."

Among those joining TMM on Thursday was 36-year-old Chris Cain, a quadriplegic who has used marijuana to control pain and spasms for the last 10 years. Cain told the crowd that marijuana is the first drug he's used in his 20 years in a wheelchair that actually controls his symptoms without drugging him out like pharmaceutical medicines he'd previously been prescribed. Cain said he's been punished for his outspoken support of medi-pot – a circumstance that would be corrected with the passage of Naishtat's bill.

In July, the Hardin Co. Sheriff's Office, with the aid of two helicopters, raided Cain's home near Beaumont, seized three joints, and threw Cain in jail. Cain spent several hours in jail without medical attention before being released to his mother's care. (The fuzz also seized computer equipment Cain uses to run his search-engine business.) Cain said local law enforcers had been harassing him for four years as a result of his support for medi-pot and his public admissions that he is a medi-mari user. Cain is currently seeking to prove his innocence in court (if it goes that far, since there are some questions about the legality of the raid, he said), and hopes state lawmakers will help him.

"Pass [HB 658] and let me defend myself in court," he said.

The most recent Texas Poll indicates that 75 percent of Texans support medical marijuana legislation; a recent AARP poll revealed that 72 percent of that group's membership would also support such a measure. Additionally, the Texas Nurses Association has thrown its support behind HB 658, Davis pointed out, and last year the Texas Medical Association gave its nod to efforts to protect the right of doctors to openly discuss treatment options with their patients. Davis said that TMM has so far earned the formal support – via petition – of more than 7,500 patients, doctors, and advocates across the state.

Grandpa Walter's Reefer Madness

In other medi-pot-related news, Illinois lawmakers last week heard testimony and then declined to pass out of committee a bill that would legalize possession of up to 12 plants and 2.5 usable ounces of marijuana for use by registered medi-pot patients. Chicago Democratic Reps. Larry McKeon (a former Los Angeles cop) and John Fritchey introduced the bill, which was bottled up on Feb. 17 after federal drug czar John Walters swooped into Springfield to testify against it.

Over the past few years, Walters has increasingly used his position as head of the White House Office of the National Drug Control Policy to lobby against drug policy reform proposals made in individual states, in part by using inflated rhetoric and highly questionable "facts." Last week he was at it again, telling Illinois lawmakers that 60 percent of people seeking drug treatment do so because of marijuana abuse and dependency problems, and recycling his ain't-your-grandpappy's-pot arguments.

"This is not your father's marijuana," he said. "This is not your marijuana when you were in college, if you are a baby boomer. You are suffering from 'reefer madness' if you think it is."

Adding insult to injury, Illinois Capitol Police detained one witness, who'd testified in favor of the measure, for bringing his federally dispensed medi-pot joints to the capitol as a visual aid.

Irvin Rosenfeld is one of seven patients still legally allowed to use medi-pot under a federal research program closed in 1992. He has used pot provided by the feds for more than 20 years, but was detained by police who said they needed to verify his claims before releasing him and his tin of joints. The law enforcement action did not sit well with bill sponsor McKeon.

"I find that disgusting and offensive," he said, adding that he would not be deterred by the temporary setback. "I can't remember ever seeing any White House, Republican or Democrat, put such a massive effort and spend so many taxpayer dollars trying to quash a state bill. ... This is an outrageous misuse of tax dollars," he said. "I'm going to proceed with this legislation, period."

Top 10 Drug-War Stories of 2004

1) Please Eat the Hemp, the Conclusion: The Hemp Industries Association won its fight against the feds' proposed new rule that would've made it illegal to sell foods containing hemp seed and oil. In February, the U.S. 9th Circuit Court of Appeals sided with the HIA, and in late September the feds declined to appeal the case to the U.S. Supreme Court.

2) Pretty (and Stoned) as a Princess: In April, the Texas Department of Public Safety kicked off a statewide program designed to put an end to illegal drug use at "organized rave parties." The DPS campaign aimed to educate the public about the dangers of "club drugs" like Ecstasy, and issued a watch list of items commonly identified with ravers – like "colorful, beaded bracelets" and "princess" costumes.

3) Doctors Back Medi-Pot: During its annual state convention in May, the Texas Medical Association (the country's largest state medical association) unanimously adopted a new policy recommendation supporting the right of doctors and patients to discuss medi-pot as a viable treatment option, without fear of legal recrimination. TMA delegates also reaffirmed the association's call for further research on the use of medicinal pot.

4) So Does Kerry: Democratic Presidential nominee John Kerry scored an A- on the Marijuana Policy Project's medi-pot candidate scorecard by pledging to end DEA-led raids on medi-pot patients. In Oregon, Kerry said the feds should likely butt out of medi-pot matters, though he did not pledge support for the state's Proposition 33, expanding the state's medi-pot law. Both Kerry and Proposition 33 bagged out on E-day, while the medi-pot fight slogs forward.

5) Istook Mistook: In June, a federal judge struck down the Istook Amendment, which would deny fed dollars to any transit authority that accepts advertising advocating medi-pot, marijuana legalization, or dope decriminalization. The court said that the amendment violated congressional spending power and constitutionally protected free speech.

6) Medi-Pot's Supreme Test: California medi-pot patients Angel Raich and Diane Monson went to the U.S. Supreme Court to argue that the feds should stay out of intrastate use of medicinal marijuana. The feds say medi-pot inevitably affects the black market in illegal drugs; Raich and Monson say their use is noneconomic and wholly contained within state borders. A decision is expected this spring.

7) Don't Study the Hemp: In December the DEA denied a proposal by University of Massachusetts researchers to grow pot for research, effectively extending the bureaucratic blockade that has kept research that could result in the drug's reclassification under federal law and enable doctors to prescribe pot. Horror of horrors, how would the drug companies ever make money off the weed?

8) Sensenbrenner's Minimum of Good Sense: Despite growing opposition to federal mandatory-minimum sentencing, U.S. Rep. James Sensenbrenner, R-Wisconsin, offered a bill to lengthen and strengthen man-min sentences. Under a fuzzy bunny title ("Defending America's Most Vulnerable: Safe Access to Drug Treatment and Child Protection Act of 2004"), Sensenbrenner wants a 10-year minimum for anyone convicted of selling or conspiring to sell any amount of pot to a minor. Keep your fingers crossed – at press time, the bill still hadn't made any headway.

9) John Ashcroft, Ghostwriter: Outgoing Attorney General John Ashcroft also entered the man-min fray, with an AstroTurf campaign using the Justice Department to churn out prewritten op-ed pieces supporting man-mins but bearing the signatures of local U.S. attorneys. Unfortunately for Ashcroft, his dishonest scheme was outed in August by the National Association of Criminal Defense Lawyers and Families Against Mandatory Minimums.

10) Medi-pot for Texas?: In December, officials with Texans for Medical Marijuana announced that Austin State Rep. Elliott Naishtat had agreed to author the state's first medi-pot bill. The annual Texas Poll showed overwhelming support – whether that'll be enough to push the bill through remains to be seen.

Dancing in the Dark

Joe Hill was a labor organizer executed on trumped charges in Utah in 1915. The night before his murder he telegrammed his comrades: "Don't waste your time in mourning. Organize."

I once shook the hand of a man who shook his hand. In the spirit of passing that handshake on, here are some thoughts post-election:

It's after a defeat that you find out what you're made of. Cry if you must, cry it all out, but don't let the bastards sap your vitality.

In 1964 arch-conservative Barry Goldwater was crushed at the polls. Everybody thought conservatism was forever politically dead in America. But conservatives re-grouped, re-thought, and organized patiently from the ground up; when fundamentalist religion became a force in the mid-1970s they were ready to take advantage of it. In 1980, they elected Reagan. Dig: It took them 16 years. American progressives seriously started mass-scale organizing only about a year ago. In just one year we came within reach of victory.

That's remarkable. Now is no time to quit.

Iraq is a mess and it'll get worse. Our military is way over-extended. To keep present troop levels, Bush will renege on his promise and institute a draft – probably next spring, so that he can recover by the mid-term elections. Rural poor are already fighting this war; a draft won't change their vote (though continued failure in Iraq might). But the conservatives of the middle class will be hit hard by a draft; that will change the present equation considerably. Progressives must stay organized and ready to help them. Reach out to save their kids – and ours.

Former Federal Reserve Chairman Paul Volker said recently that he sees a 75 percent chance of "financial catastrophe" within five years. That's his polite Establishment way of saying that an economic shit-storm is on the horizon and could hit anytime. Any mix of oil hikes, credit trouble, unemployment, interest hikes, etc., could set it off. Also: the European Union, China, and Southern Asia, have been hanging back, hoping we Americans would clean our own house and vote Bush out. We failed. They can't afford to hang back any longer. The U.S., thrown into heavy debt by Bush, now depends on these powers to buy our bonds. Their collective hand is on our financial spigot and they'll start turning it slowly toward "off." They'll do it carefully, but they'll do it, because it's the only check they have on Bush America. They needn't cut their investment much to make us hurt. Combine the two – our internal weaknesses and dependence on foreign financing – and we're in big trouble. Bitching about that won't be enough, as this election proved. Progressives must offer an analysis and alternatives, and present them in a way that badly educated people can understand.

Since the mid-1960s, progressives lost white working stiffs because we talked down to them. We dissed their work, their desires, their beliefs, their religions. We made them Other, matching their bigotries with a new own all our own. On Election Day 2004 we paid full price for that. No working man or woman is my enemy. Their struggle, their endurance, is to be respected. They may be foolish and desperate enough to follow people who lie to them, but they've got too much self-respect to follow people who look down on them. They're terrified. They're unequipped for the complexities and paradoxes of the 21st century and they know it, and they resent like hell all those who accept leaving them behind as the price of entering the 21st century. Progressives have got to accept what this election made painfully clear: Either we all proceed or none of us do. It's the greatest challenge and the biggest lesson of this election: We've got to learn how to talk to these people. They are our fellow-sharers in America. They may not know or want that, but we must; and we must act and speak accordingly. Whitman must be our guide: "I will not have a single person slighted or left away."

Don't demonize people who disagree with you. That's how Bush and Cheney behave. Behavior is more important than belief. What does belief matter, if your behavior apes your enemy's? Behavior shapes reality. Belief merely justifies reality. Demonization creates demons. Your enemies are as human as you are. If you treat them that way, the outcome may surprise you.

Never underestimate the power of the Irrational. At every critical juncture of history, the irrational has been a potent, often decisive force. At times whole peoples go insane – Europe in World War I, Germany throughout Hitler's reign, America during the Red Scare. This is one of those times. Realize that you're in the midst of it. Things may get so irrational that nothing will work. In that case, what's our job? To dedicate our lives to preserving and passing on what we love, so that if things ever get sane again there'll be something left. Which may be a way of saying: like Joe Hill, lose beautifully. That beauty may be something the future can build on.

This election was about identity. The concrete issues – Iraq, the economy – ultimately didn't matter. Bush didn't lose the debates, after all. He incessantly told his base that their wish to return to the national identify of the 1950s was personified in him. He reassured them that America was a force unto itself, an entity that could create its own reality, and that that reality was anything he said it was. He told them, through coded language that they well understood, that the 21st century would be the same as the 20th, and that being an American was identity enough. He was saying to the terrified and the left-behind: "You don't have to grow, you don't have to change, you don't have to be anything other than what you are – leave the rest to me. I will fill your emptiness, validate your God, still your terror."

Kerry's logic couldn't pierce that. His command of the facts threatened everyone intimidated by the very facts that seemed to win him the debates. They didn't want to hear it. Reasoned judgment versus passionate belief? Passion wins over reason every time. Democrats played reason, Republicans played passion. End of story. A progressive strategy? Never surrender reason but remember: we're passionate too. Passionate about genuine liberty and genuine justice for all. Compromise that – play to a now non-existent middle ground – and all is lost.

Let's say this loud: THE ISSUE OF GAY MARRIAGE DID NOT DOOM THIS ELECTION. You may measure the unhappiness of heterosexual marriage by the ferocity of the opposition to gay marriage. Listen to the country music that rural red counties listen to: the hits are about the failure of males and females to get together. In trailer park or penthouse, half the marriages end in divorce and many that don't are shameful compromises. Marriage, in America, is in a state of unbridled panic. That panic, not gay rights, helped doom this election – the panic of people trying to hold on to something that really isn't there anymore. Progressives must stand passionately with all who seek their fair share of the Bill of Rights.

My friend Deborah said today: "Bush manipulated through fear, and the people who voted for him are filled with fear. We're buying into it somehow. He generated it, we voted against it, but now we're creating it. That's something that leaves us vulnerable. We're not any different from the other people." She's right. Bush's re-election has driven many into a despairing fear. Which is just where he wants you to be. That fear you feel inside – that's Bush himself, inside you. Act out of fear and the fear will increase. Courage doesn't mean not being afraid; courage means doing what's necessary in spite of your fear, even because of it.

Remember: we've only been organizing on a mass scale for about a year and we almost won. If more of the poor, the endangered, and the young had voted, we would have won. We must keep those we organized and reach out to those we failed to organize. The poor and the endangered don't have many computers, they're not on the Net. Politics is still local. Organizing from the ground up means from the ground up, face to face, speaking words that people can understand, showing them how they can have a chance to change things and helping them take that chance. It's only a chance but it's not a delusion. Election Day is not set in stone. Our world is in ferocious flux. In that flux, in the very thing that frightens us most, is our chance.

Just one more thing: Nothing is less appealing or more boring than solemnity. The old-time lefties who gave us Social Security, the civil rights movement, the 35-hour week, and the original (now shredded) social safety net – they partied, sang, danced, fetted, all the damn time. They were famous for it. These are dark days and they're going to get darker, but the dark side of the day has always been my favorite time for dancing.

Challenging the Feds

On Oct. 4 medical marijuana advocates with Americans for Safe Access filed a petition with the U.S. Department of Health and Human Services asking that the agency correct misinformation disseminated regarding medical use of pot.

"[The] HHS repeatedly misstates the scientific evidence and ignores numerous reports and studies demonstrating the medical utility of marijuana and its constituent compounds," reads the petition. According to the ASA, the HHS' conclusion that "marijuana has no currently accepted use in treatment" lacks the "objectivity, utility, and integrity of information" required by the federal Data Quality Act.

On behalf of patients nationwide who are "deeply and immediately affected by the [HHS'] controverted statements," the ASA is asking that the agency acknowledge that "adequate and well-recognized studies" show the efficacy of marijuana in the treatment of nausea, loss of appetite, pain, and spasticity, and that there is a consensus among medical experts on the benefits of medi-pot.

Finally, and critically, the ASA wants the HHS to conclude that "marijuana has a currently accepted use in treatment in the United States" – a finding that would help reformers to get marijuana rescheduled from a Schedule I to a Schedule III substance under the Controlled Substances Act.

The feds consider Schedule I drugs to have no redeeming medical value – and therefore there is no reason for their possession. Conversely, Schedule III drugs – including various barbiturates, codeine, lysergic acid (the LSD precursor), GHB, Ketamine (aka "Special K"), anabolic steroids, and methadone – have medicinal use and can be legally obtained by patients, typically (though not always) by prescription.

The ASA and other medi-mari advocates descended on Washington, D.C., to deliver their petition and to rally at the HHS building, where they unfurled a 600-foot-long banner displaying the names of more than 7,000 doctors who support medical marijuana. The reformers – including medi-pot patients from across the country – tried to deliver the banner to HHS Secretary Tommy Thompson, but to no avail; 14 advocates were arrested after blocking entrance to the building.

The HHS has 60 days to respond to the ASA petition, ASA representative Stacey Swimme told the Drug Reform Coordination Network. "We expect them to ignore it, but after 60 days we will have the opportunity to take them to court," she said.

The Colors of Justice

In 2003, Williamson County Sheriff's Office investigators made a series of significant felony drug busts. In January and again in October, WCSO detectives dismantled two methamphetamine lab operations – one near Georgetown and one further west, in Liberty Hill; three people were arrested and charged. During the same period, undercover investigators – including at least one of the detectives involved in the west side meth busts – spent six months making a series of crack cocaine buys in Taylor. Those transactions eventually resulted in nine arrests.

Despite the large quantity of drugs and methamphetamine-manufacturing chemicals seized by investigators, neither of the speed-lab busts made the news. By contrast, the December arrests of the nine Taylor crack suspects made headlines. In press accounts, Williamson Co. District Attorney John Bradley labeled the nine suspects "well-connected" and "high-level" drug dealers.

The two sets of drug cases bear some superficial similarity. Significantly, WCSO and court records suggest that law enforcement officers built solid cases against each of the 12 defendants. But there are at least two significant differences between the two sets of cases. In the first place, the Taylor nine are black, the meth cooks are white. There was also a difference in the quantity of drugs seized – the Taylor nine were arrested for dealing between one and approximately 45 grams of crack; the three meth cooks were charged with the manufacture, possession, and intent to deliver more than 200 grams of speed.

Six of the defendants arrested in connection with the crack and meth busts have had their cases adjudicated and disposed. Only one case has been heard by a jury in open court; five cases were disposed of through plea bargains negotiated with Bradley's office. Of the five plea-bargained cases, three defendants – including two of the Taylor nine – are doing jail time for their crimes.

One of the meth defendants had a previous felony drug bust, and agreed to a seven-year prison term – a sentence much lighter than those now being offered by prosecutors in several of the crack cases involving both lesser amounts of drugs and less-experienced defendants. The other two meth defendants whose cases were bargained out did even better – they were offered deferred adjudication, meaning that, if they successfully complete the terms of their probation, all record of their guilty pleas in connection with the speed-lab cases will be expunged.

For a county that has spent more than two decades cultivating the image and reputation of being "tough on crime," the apparent disparity of punishment meted out between the two groups of alleged drug dealers is somewhat puzzling – even to some involved in Williamson Co. law enforcement.

The situation is not surprising to others – including two national legal experts – who suggest that the disparity is symptomatic of the nearly unchecked power prosecutors now have to decide the fate of defendants in plea-bargained cases. Nationally, plea bargains account for more than 90% of all criminal case dispositions. "There is an enormous shift of power away from the judiciary and over to the prosecution. The judges are a lot like clerks," said Steven Bright, professor of law at Yale and Harvard universities and executive director of the Atlanta-based Southern Center for Human Rights. "So really, all of the power is being exercised by the district attorney."

Still others say that the apparent disparity is attributable to one thing: the race of the defendants. "For the most part [Bradley's office offers] harsh sentences across the board," said Nelson Linder, president of the Austin chapter of the NAACP. "But based on our analysis, they are harsher for African-Americans."

Linder and others ask: Williamson County's law enforcers may well be tough on crime – but are they tough and color-blind?

Ounces and Ounces

On July 11, 2003, after a brief meeting with a ponytailed man in the parking lot of a Taylor car wash, Floyce Lee Jackson got into a white four-door Buick and headed north on Main Street, carrying $1,000 in cash, and leaving the ponytailed man holding two flat, white "cookies" of crack cocaine folded inside a fast-food hamburger wrapper. What Jackson didn't know was that the ponytailed man, who'd telephoned Jackson earlier looking to score, was actually undercover WCSO investigator Gary Haston.

Between April and September 2003, Haston (a former U.S. DEA agent), WCSO Detective Sharif Mezayek, and other members of a joint WCSO-DEA task force, conducted more than a dozen similar buys in the small eastern Williamson Co. railroad town, scoring nearly $20,000 worth of crack, according to reported estimates.

The undercover operation culminated in December with the arrests of nine people. Each was charged with first-degree-felony "delivery of a controlled substance," punishable by up to life in prison.

"What surprises us is, when asking the [Taylor] crooks to deliver the drugs, they were willing to deliver in ounces and ounces," Bradley told the Austin American-Statesman. "Once you get that amount being delivered, you know you're dealing with a substantial problem."

Bradley's description was dramatic but misleading: When all was said and done, the accused Taylor nine, collectively, delivered to investigators just over five ounces of crack. The two largest busts netted just over 1.5 ounces each, while four of the buys were for about one gram of crack – hardly the "ounces and ounces" Bradley described to the press. (A gram is about the weight of a paper clip, and there are 28 grams to an ounce.)

Nonetheless, five of the Taylor defendants had prior criminal records – including convictions for drug possession and/or delivery. Regardless of the amount of drugs they allegedly dealt to investigators last year, their records would increase their potential punishment this time.

Indeed, when Jackson met with Haston, he was on parole after serving fewer than 10 years of a 27-year prison sentence on a Potter Co. possession case. That circumstance, combined with his four other priors (two for possession, one for burglary, and one for theft), made Jackson's case, in courthouse lingo, the "high bitch" of the Taylor nine. In other words, in the view of criminal attorneys, Jackson was the defendant whose record meant prosecutors could reasonably expect to secure a life sentence, regardless of the amount of drugs he'd sold in this instance. (In fact, the cookies he'd sold weighed just over 1.5 ounces, the second largest package delivered during the operation.)

Given those circumstances, it wasn't a surprise to Jackson's appointed legal defender Carlos Barrera that Bradley's office intended to try Jackson's case first. Defense attorneys say that when there are multiple defendants, prosecutors will often try the "high-bitch" first in order to create a precedent – and, if a jury convicts and if the sentence is long enough, thereby persuade other defendants to accept whatever plea deal is offered.

What did come as a surprise, Barrera says, was the deal prosecutors offered his 53-year-old client: 50 years in prison. The offer was essentially a life sentence for Jackson, who wouldn't be considered for parole for 17 years. Of course, given the county's record of obtaining guilty verdicts in jury trials – in the last three years only two defendants have avoided a guilty verdict – there was little doubt Jackson would do time. Realistically, the only question was how long he'd be locked up. In the end, Jackson opted for a jury trial.

After two days of testimony, Jackson was found guilty and sentenced to life behind bars.

Pounding the Defendants

So far, Jackson has fared far worse than the other Taylor defendants, including those who have been offered plea deals but have yet to decide whether to accept or to take their chances with a jury. In what now seems an act of razor-sharp foresight, two of the nine pled early, accepting what are likely to be the very best deals Bradley's office will offer any of the nine.

In May, 43-year-old first-time felon Joyce Lee Harris waived her right to trial (and her right of appeal), pled guilty to one count of delivery, and accepted a five-year prison sentence. According to her indictment, Harris was charged with the May 2003 delivery of "between four and 200 grams" of crack. However, in the probable-cause affidavit filed for her arrest there is in fact no mention of a May buy; instead, Detective Mezayek detailed an April 2003 buy during which Harris sold investigators 0.79 grams of crack. Also in May, Norma Faye Wright, 39, another first-timer, became the second of the Taylor nine to take a deal, accepting a 15-month state jail sentence for selling 0.12 grams of crack on April 3, 2003.

Those deals, attorneys close to the Taylor nine cases say, were the most lenient offered by Bradley's office. Barrera says that prosecutors originally offered Jackson 20 years for a guilty plea, but that Bradley yanked the offer shortly after it was made. Indeed, other sources told the Chronicle that shortly after Harris and Wright pled out, Bradley standardized all future offers for the Taylor nine, directing his prosecutors to offer nothing less than 20 years of hard time to each of the defendants – two of whom have no prior felony record.

"This is as much a reflection on the conservative [views] of Williamson County [residents] as it is on the prosecutors," said one area defense attorney who practices in the county. He also asked to remain anonymous, citing a fear of retaliation for speaking harshly of Bradley's office. (Incidentally, this source was not alone; numerous attorneys expressed this same concern and agreed to speak to the Chronicle only on condition of anonymity, while others declined to comment at all.)

DA Bradley also has a reputation for "micro-managing" the office, the source said, and the deals that come out of his office are intended to "pound" defendants. But county voters are complicit in the practice, the attorney said: Williamson Co. "jurors have a perverse view of what crime is."

After repeated requests for an interview to discuss his approach to prosecutions, Bradley agreed to respond in writing to a list of questions submitted by the Chronicle. But a week later, Bradley told us that he had changed his mind and, citing "ethical" concerns, declined to answer any questions for this story.

Different Folks, Different Strokes

Also last year, county sheriff investigators busted two methamphetamine-cooking operations in the western half of the county. Those cases resulted in outcomes quite different from those of the Taylor nine. In January, officers with the sheriff's Special Missions Team (including Detective Mezayek) raided a house near Andice, northwest of Georgetown. Inside, they found four people, including Paul Morrow, then 38, who told Detective Kevin Hallmark that the officers would find "dope" in his bedroom. On a desk, Hallmark found 15 small zip-locked plastic baggies, "all of which contained a white powdery substance," he wrote in his report. Collectively, the bags contained approximately 11.3 grams of meth.

Hallmark also found empty pseudoephedrine-tablet blister packs, a can of acetone, three bottles of an "unknown liquid," muriatic acid, Red Devil lye, and a small bottle "of what I believe to be red phosphorus" – among other items "consistent with items commonly used in a red phosphorus 'lab' for the production of methamphetamine." The officers called in additional investigators after finding "numerous" other items, including guns, power tools, and three auto trailers, which they "believed to be stolen," Hallmark wrote. Morrow and three others were booked into the county jail.

The Department of Public Safety lab later confirmed the presence of methamphetamine, pseudoephedrine, and red phosphorus among the items taken from Morrow's house. The DPS also reported finding 8.7-milligrams-per-milliliter of methamphetamine in a 589-gram liquid mixture found at the house. Morrow was charged with two counts of felony manufacturing at least 400 grams of meth (including any "adulterants" or "dilutants"), and with possession with intent to deliver the same, charges punishable by between 15 to 99 years or life in prison and a fine of up to $250,000.

That fall in Liberty Hill, investigators responded to a call from someone complaining of a "strong chemical smell" coming from 36-year-old Carl Clay Wright's property. Detective Mezayek had received similar complaints in the past, he wrote in his report, so he and several other officers with the sheriff's narcotics and K-9 units went to check it out. Wright was in the front yard when the officers arrived; he told Mezayek that another man, Randy McAnally, was out back, "cooking methamphetamine." Wright said that he'd quit cooking the stuff and that the items in the backyard shed actually belonged to McAnally.

From the shed, Mezayek seized several bottles containing layered liquid mixtures (one field-tested positive for meth), a jar of Red Devil lye, a 32-ounce can of lighter fluid, two boxes of pseudoephedrine tablets, and a bottle of red phosphorus, among other items. Wright and McAnally were arrested. On Nov. 12, 2003, Wright was indicted on two counts of manufacturing and possessing between 200 and 400 grams of meth (punishable by 10 to 99 years, or life, in prison, and up to a $100,000 fine) and on one count of possession of "precursor" chemicals subject to regulation under the state's Controlled Substances Act.

Morrow and Wright each had prior criminal records. Morrow had four prior misdemeanor arrests, including two theft charges and a charge of driving on a suspended license. Wright had five priors, including two dismissed marijuana possession charges, an assault charge, and a charge of unlawfully carrying a weapon. Theoretically, given their criminal histories and the seriousness of the meth charges, Morrow and Wright should've been in the same boat in which the Taylor nine were rapidly sinking. But they weren't; Indeed, as a result of the 2003 meth busts, neither man spent more than six months in county jail.

In Morrow's case, Bradley's office dropped the manufacturing charge and, in exchange for a plea of guilty on the possession charge, Morrow was offered 10 years deferred adjudication, 180 days in the county jail – balanced against a 174-day credit for time already served – and a $2,500 fine.

For Wright, the state dropped the drug manufacturing and possession charges and offered eight years deferred adjudication, 120 days in county lockup, and a $2,500 fine, in exchange for a guilty plea on one count of possession of precursor chemicals. (Randy McAnally, who had a previous meth-related felony conviction, pleaded guilty to one count of possession of precursor chemicals and was sentenced to seven years in prison.) Significantly, because the DA's office offered deferred adjudication on the sentences, if Wright and Morrow successfully complete the terms of their probations, all record of their guilty pleas will be wiped from their criminal records.

Stark as it appears to be, the disparity between the sentences offered to Morrow and Wright and those offered to the Taylor nine comes as no surprise to many involved with the Williamson Co. criminal justice system. The county's tough-on-crime image is a conscious, long-enduring official construction aimed at maintaining a public perception, some critics charge – but which has successfully obscured a much grittier reality.

"There is a big difference between [the] public relations image that the DA will cultivate and the reality of the office," charges Keith Hampton, an Austin defense attorney and legislative chair of the Texas Criminal Defense Lawyers Association. "[In] a county like Williamson, that likes to portray itself as 'tough on crime,' [the question to ask is] what, exactly, does that mean?"

Bullying and Bias

As it turns out, what it means to be "tough on crime" in Williamson Co. depends upon whom you ask. It also depends on exactly what you ask. To hear Bradley tell it, the county's system of criminal justice is transparent and fair.

"We prosecute people for the crimes they commit," he told the Statesman in 2002. "If a criminal gets a long prison sentence, it is because he or she deserved it." Judging only by the office's conviction record in jury trials, Bradley's assertions appear true. From January 2002 through June 18, 2004, his office tried 40 felony cases – involving a diverse group of defendants facing a variety of charges – and secured convictions in all but two.

But others charge that Bradley's simple cause-and-effect explanation masks a much more complicated reality. Indeed, although the county's felony jury trial system has sent 38 offenders to prison in the last 21 years, since 2000 the DA's office has sent nearly 3,000 people to prison. In other words, the overwhelming majority of the county's criminal defendants have their fates decided through plea arrangements – a process that happens in the hidden halls of justice, with a minimum of public scrutiny.

In this regard, Williamson County's system of criminal justice is little different from any other around the country. Nationally, over 90% of criminal cases are disposed of by plea arrangements. Many argue that the system must handle cases in this manner; without pleas, court dockets would be inextricably backlogged and the wheels of justice would grind to a halt.

However, the plea system is also ripe for abuse, because it offers the state a vast and unchecked discretion to determine the fate of criminal defendants based on unknown or arbitrary criteria – and, potentially, upon deep-seated biases – all without the check of public scrutiny.

"There is no way to evaluate it, that's one of the problems. It is a low visibility system," said Albert Alschuler, Julius Kreeger Professor of Law and Criminology at the University of Chicago and a former UT law professor who has studied plea systems for more than 30 years. "The prosecution is tough in newspaper cases and [is] giving away the farm on everyday cases. It is very difficult to review. It is not like there is a public process."

In total, he said, it is a disturbing way to conduct the public's business. "The administration of justice is important, but largely not visible."

Empirical evaluation of a plea bargaining system can only happen if prosecutors put every offer into writing and into the public record, and that doesn't happen, said Steven Bright, executive director of the Southern Center for Human Rights.

"It is an almost Herculean task to try and figure it out," he said. Further complicating the matter, Alschuler said, is that in 98% of cases, judges rubber-stamp whatever sentence the prosecutor offers. Bright agrees. "The problem with plea-bargaining is that there is not much bargaining; the DAs have a take-it-or-leave-it policy," he said. "Sentencing ought to be done by judges, not prosecutors. [Prosecutors] are advocates and they're one-sided. That's not the way it should be."

In the absence of oversight, they agree, justice is often determined by two things – bullying and bias – and conscious or not, much of the bias involves race. Plea bargaining "becomes an end to itself [with] prosecutors bludgeoning people into pleading – 'Well, you're welcome to go to trial, but if you do you'll be facing more time,'" Bright said. Alschuler agrees. Bargaining is "highly discretionary," he said. A prosecutor "can make it in a defense attorney's best interest not to defend the client – and if you don't win, you're going to get socked."

Many local criminal defense attorneys say this is exactly what happens in Williamson Co. Indeed, many told the Chronicle it is a major reason they won't take cases there any more.

"I refuse. It's been almost 20 years. I was very much mistreated; my clients were very much mistreated," said Betty Blackwell, a veteran Austin criminal attorney and former president of the TCDLA. In Williamson County, "the defense attorney takes on the persona of the defendant," she said. "This doesn't exist almost anywhere else, where they recognize the Sixth Amendment right to be represented by an attorney."

Similarly, Hampton hasn't taken a case in Williamson since about 1995, "because my clients were treated harsher, literally, because of me," he said. "What they encourage there are obedient criminal defense lawyers." Bradley, he said, doesn't "understand the value of what an independent ... defense attorney brings to the table. He wants to run it almost like a bureaucracy."

Apparently, these are criticisms Bradley has heard before, and condescendingly dismisses. "I think that I'm an aggressive prosecutor," he told the Statesman in February 2002. "I work very hard to make sure that I know the law that I'm pursuing and I know that occasionally hurts the feelings of the defendants that I'm trying to put into prison." The reporter apparently didn't ask whether he also prefers defense attorneys who operate under the same priorities.

Still, a take-it-or-leave-it policy, such as many attorneys say exists in Williamson – shadowed by the specter of potential retaliation in the event an attorney should decide to "leave it" – has translated into a lopsided system of criminal justice, under which minority defendants are vulnerable to injustice based on racial bias.

"I hate to use a big brush," said Blackwell, "but I'd say it's safe to say that in felony cases that is true." Austin attorney Larry Sauer agrees. "Nobody likes to go" to Williamson County, he said. "They're unreasonable with their [plea] recommendations." Moreover, he said, "blacks and Hispanics don't fare as well" as white defendants. To be fair, notes Hampton, disparity in sentencing happens not only in Williamson, but also throughout the criminal justice system.

"There is a disparity, it's well known, documented and studied," he said. "It seems to be not so much racial, but aimed at the people who are the most vulnerable. It's not race, but wealth and power, and it happens to be that minorities are disproportionately represented" among the poor and powerless.

Whatever the specific causes, Bright said, the criminal justice system is biased against minorities, especially African-Americans. Some of it is unconscious, he said, but "the criminal justice system is generally very biased against black people. They are largely excluded from participation. The lawyers, prosecutors, juries, and judges are white. District attorneys are overwhelmingly white. [And] there are hardly ever going to be black people on the jury anyway."

Indeed, in Floyce Lee Jackson's case, jury bias was initially cause for a mistrial. Jackson was originally scheduled to stand trial in July, but that was pushed back a month after Barrera won a favorable ruling from District Judge Burt Carnes on a race-based jury selection objection. During jury selection, Barrera said, prosecutors struck all but one of the potential black jurors without cause – in apparent violation of Jackson's constitutional right to a jury of his peers.

The situation comes as no surprise to local NAACP President Nelson Linder, who sees Bradley's treatment of the Taylor nine, in comparison to his treatment of Morrow and Wright, as just another example of Williamson County's deep-seated racial bias.

"It's a worst-case scenario, and unfortunately that's what [there] is," he said. The NAACP routinely receives complaints, he said, that in Williamson Co. criminal justice, blacks are treated more "harshly" than are whites. "We want Bradley to use discretion to eliminate the double standard," he said. In early 2002, after receiving more than 20 complaints of discrimination in less than a year, the NAACP initiated an investigation into the allegation of racially biased sentencing practices in the county.

"We want to see the facts," he told the daily. Bradley quickly countered the NAACP's assertion, telling the Statesman that of the 35 defendants the county sentenced to at least 20 years in prison in 2001, "almost half were white, one-fourth were African-American and one-fourth were Latino."

As far as they go, Bradley's cited statistics are accurate, and have remained consistent over time for county defendants sentenced to prison time. Since 2000, according to TDCJ statistics, Williamson Co. has sentenced 2,770 people to state jails or prisons. Of those, nearly 56% were white, nearly 26% were Hispanic and just over 18% were black. However, what Bradley failed to mention, and what the daily failed to report, is that according to 2000 census figures, Williamson County's population is more than 82% white, 17% Hispanic, and just over 5% black – numbers that belie Bradley's assertion of across-the-board fairness.

"Those are the correct figures that illustrate everything," said Ann del Llano, an attorney with the Austin ACLU, who describes Williamson Co. as a "white flight" county, concluding, "Let's be real."

Holding the Line

If the wheels of Williamson Co. justice continue to turn on their current course, the Taylor nine will soon be added to the TDCJ roster, while their white meth-cooking counterparts appear likely to avoid that fate. For his part, District Attorney Bradley declined to answer any questions about the process by which his office arrives at plea offers, or about which factors his office considers when contemplating plea deals. He told the Chronicle that discussing any pending cases, such as those of the Taylor nine, would be "unethical."

Yet he also declined to discuss any closed cases, such as those of Wright and Morrow, explaining that he found it difficult to "isolate" those cases from pending cases. He also declined to have what he termed a "global" discussion about the process of plea-bargaining, saying that he finds "open-ended" discussions "unproductive." Bradley declined to elaborate on his reasoning. "I don't think I want to discuss this any further," he said.

If the claims of critics are accurate, it wouldn't be the first time that black people in Taylor have found themselves on the heavy side of justice's scales. Since at least the early '90s, the Williamson Co. DA's office has taken more than a passing interest in "cleaning up" the city's minority communities – notably with the 1994 "Turn Around Taylor" efforts, presided over by Bradley's mentor and former boss Ken Anderson, now a district judge, who served as county DA before handing the reins to Bradley in 2001.

In that effort, reportedly aggrieved citizens were worried about the scourge of drugs in a historically black neighborhood known as "The Line" and banded together with county law enforcers to create the TAT. Using police sweeps and "nuisance" laws, the group sent a host of drug dealers to jail and boarded up or bulldozed a host of offending properties.

In the view of many familiar with the cases of the Taylor nine, the county is now engaged in a repeat performance. "It is clear that they targeted the black population," said one defense attorney. But "I don't know what has caused the prosecution to make such [a big deal out of these cases]."

If the Taylor nine are so well-connected, asks another attorney, "where is the investigation [and prosecution] of their supplier?" And why, they both want to know, hasn't TAT or Bradley's tough-on-dealers approach extended to the Taylor defendants' white counterparts? Hampton thinks he knows the answer to that one: "The thing is that there are no [TAT] people anywhere [in the county] that are concerned about white redneck drugs" – no matter how insidious their operations might be.

Cats and Mice

If Floyce Lee Jackson was in fact a "high-level" drug dealer, as Bradley claimed, he does a very good job of concealing his altitude, as do his fellow Taylor defendants. The neighborhoods they call home boast none of the trappings of wealth. At best, the communities, on run-down streets in Taylor's small black quarter, are depressed, many of the homes are in need of serious repair, their foundations are crumbling, and more than one house boasts clumsily boarded-up windows and doors.

In August, Jackson sat in the courtroom wearing a pair of scuffed white sneakers and a borrowed suit several sizes too large, while a team of two prosecutors told the eight-woman, four-man jury (11 of them white, even after the judge-ordered delay and repaneling) that Jackson was a "mid-level drug dealer" ripped from the streets of small-town Taylor by courageous narco officers. Moreover, prosecutors repeatedly declared to the jurors, Jackson was actually one of 15 dealers swept off Taylor's streets by the undercover police.

Although the public-menace status of the Taylor nine had apparently been downgraded from "high-" to "mid-level" dealers some time between December and August, Jackson's prosecutors were adding a new and more onerous burden to his defense by repeatedly telling the court that Jackson was busted along with at least a dozen other conspirators. (The precise number was apparently flexible; prosecutors switched seamlessly between estimates of 12 and 15 drug dealers.)

Despite the clear misrepresentation – neither Jackson nor any of the other Taylor defendants was indicted on conspiracy charges – Barrera failed to object to the state's assertions, leaving Jackson alone in the courtroom to face the alleged wrongdoings of 14 ghosts.

After two days of testimony, the jury found Jackson guilty and sentenced him to life in prison, which Judge Carnes ordered Jackson begin serving only after he finished serving the time remaining on his previous Potter Co. sentence.

In his closing arguments, Barrera asked the jury to consider what a conviction would actually accomplish. "If you want to convict Mr. Jackson for this crime, do you think [it's] going to stop one person in Taylor from getting their drugs?" he asked. "This is a demand-driven industry and these guys are playing cat-and-mouse games. They're not keeping any dope off the streets."

The Maple Leaf Forever

In recent weeks, federal drug warrior John Walters has turned his attention to the latest and apparently, in his esteemed opinion, greatest threat: Canadian marijuana. Walters, head of the White House Office of National Drug Control Policy (the "drug czar"), in recent months has bemoaned the increase in availability of the allegedly superpotent Canadian bud. Canada has less strict marijuana laws than the U.S., and our northern neighbors have allegedly been cultivating strains that contain about 7 percent THC, more than triple the amount commonly found in U.S. pot in the '70s.

This combination of lax laws and pot potency equals a national scourge for Walters, who told Time that he blames a potent strain of the dope cultivated in British Columbia – the nefarious "BC Bud" – for a rise in marijuana-related emergency room visits in the late 1990s.

"Canada is exporting to us the crack of marijuana," he said.

Unfortunately for Walters, the U.S. Department of Justice doesn't agree with his dire dope assessments. According to the annual National Drug Threat Assessment report, released in April by the National Drug Intelligence Center, California and Mexico produce most of the pot smoked in the U.S., and growers in Hawaii are credited as the "leading source of high-potency marijuana." Further, contrary to Walters' claims, the increase in marijuana-related emergency room visits has "not been significant."

Meanwhile, in Nevada ...

At press time, the fight over the latest Nevada marijuana-legalization ballot initiative was raging on, as supporters waited on the U.S. 9th Circuit Court of Appeals to give a final nod on its fate. On Sept. 2, Silver State election officials announced that initiative supporters had gathered about 2,000 fewer signatures than the number required to secure the measure a place on the November ballot.

However, that determination – made after a district judge sided with initiative organizers and ordered a signature recount – is potentially moot if the 9th Circuit rules in favor of the Marijuana Policy Project on an action pending before the court.

At issue is the Nevada secretary of state's decision to rule invalid the petition signatures of people who signed up in support of the measure on the same day they registered to vote. The Silver State's last citizen initiative to decriminalize marijuana was vociferously opposed by Walters, whose campaign activities there led to previous legal actions alleging the drug czar violated the federal Hatch Act, which restricts the political activities of government employees.

Ashcroft Hits the AstroTurf

Under the fearless leadership of Attorney General John Ashcroft, the U.S. Department of Justice has taken to churning out prewritten op-ed pieces in support of mandatory minimum sentencing requirements and pitching them to local newspapers, over the signatures of local U.S. attorneys, reports the Drug Reform Coordination Network.

Ashcroft's full-throttle "AstroTurfing" (pseudo-grassroots) campaign comes in response to a growing discontent with the man-min sentencing structure, voiced by several federal judges, including Supreme Court Justice Anthony Kennedy – and, more recently, a June 24 Supreme Court decision (Blakley v. Washington), in which the court opined that juries, not judges, must decide the facts of a case if those facts may result in a longer sentence.

The DOJ's bolstering campaign was outed earlier this month by the advocacy group Families Against Mandatory Minimums and the National Association of Criminal Defense Lawyers, after the "model" op-ed turned up in three different newspapers. And last week DRCNet spotted the same piece – which warns that the high court's Blakley decision jeopardizes "the safety of America" – in three Tennessee newspapers, signed by two different U.S. attorneys.

Weed Watch

Meanwhile, the Nevada Supreme Court has declined a motion filed by the Marijuana Policy Project, which asked the court to force federal drug czar John Walters to account for all taxpayer money he spent in 2002 stumping in the Silver State against a ballot initiative that sought to decriminalize possession of up to 3 oz. of marijuana.

The MPP argued that Walters' visits to the state were in clear violation of the 1939 Hatch Act, which regulates the political activities of government officials. Further, Walters refused to comply with Nevada's election expenditure reporting requirements and was chastised by the state's attorney general for his "disturbing" interference in the state vote.

Nonetheless, Walters was allowed to circumvent the law after the AG opined that Walters would likely prevail in court. On Aug. 18, the state's highest court confirmed that opinion in a one-paragraph order.

No Mercy

On August 26, Texas is scheduled to execute James Allridge III for the 1985 murder of 21-year-old Brian Clendennen, who died from two gunshots fired in the course of the botched robbery of a Fort Worth-area convenience store. At his trial, Tarrant Co. prosecutors argued that Allridge, then 21, killed Clendennen on Feb. 4, 1985, while on a "crime spree" with his 23-year-old brother, Ronald. (Ronald, implicated with James in a string of area robberies, had been sentenced to death in 1986 for the murder of Carla McMillian, killed during the robbery of a Whataburger a month after Clendennen's death. He was executed in 1995.)

In 1987, after finding James Allridge guilty of Clendennen's murder, his trial jurors were faced with choosing a punishment: life in prison with a possibility of parole (after 20 years), or a death sentence. Allridge had no prior criminal record, but the jurors were not instructed to consider his past, or his troubled relationship with his brother Ronald. Instead, their determination would be based solely on their answers to the two "special questions" asked of Texas' capital-case jurors prior to 1990. First, they were asked, was the crime deliberate? And, second, did they believe "beyond a reasonable doubt" that "there is a probability" that Allridge would commit additional "acts of violence" in the future, making him a "continuing threat" to society?

If the jurors had answered "no" to either question, Allridge would have received a life sentence; but following deliberation, the jurors answered "yes" to both, and James Allridge was sentenced to die. (In 1993, Allridge also pled guilty to four counts of aggravated robbery stemming from the 1985 crimes. He received a life sentence.)

After reading the verdict, District Judge Joe Drago III asked Allridge if there was anything he wanted to say. Allridge turned to face the Clendennen family and apologized for killing their son. "The only thing on my mind at the time wasn't what the jury had decided what they were going to do to me or what my future might hold, none of that," Allridge recently recalled. "It was that I wanted to say I was sorry to Brian's mom; that's what I wanted to do."

A Question of Clemency

Seventeen years later, James Allridge and his supporters – including four of the original jurors, his family, attorneys, two former death row prison guards, a retired prison system administrator, a Fort Worth city councilman, one of Allridge's former employers, and a handful of others – have joined forces to ask that the state Board of Pardons and Paroles and Gov. Rick Perry commute Allridge's death sentence to life behind bars.

Allridge's bid for a life sentence is not based on a claim of innocence or on a lack of due process. Instead, his plea for commutation is based on his apparent rehabilitation while in prison and his quest for redemption – two factors that Allridge's supporters, criminal-justice reformers, and policymakers say should play a key role in Texas' clemency decisions, especially since the state's capital statute emphasizes, as it did in Allridge's sentence to death row, the "future dangerousness" of the accused.

"[W]e ask that you consider whether the interests of the criminal justice system – including deterrence and rehabilitation – are best served by executing a rehabilitated person who, while carrying responsibility and remorse for his actions in his heart, is trying to give something back by furthering the safety and stability of the prison environment and struggling to redeem himself," attorneys Jim Marcus and Lisa Fine wrote in Allridge's petition to the BPP. "Our request for mercy is premised on the belief that the open-ended ability to commute a death sentence in Texas ... should be exercised in the extraordinary rare instance that a compelling record demonstrates true rehabilitation."

Allridge's supporters say that in the 17 years he has been in prison he has become a model inmate – that he accepts responsibility for Clendennen's murder and strives for redemption, in behavior that he models for other inmates. He is a calming force on the row, and former guards say he has made the unit a safer place. He has honed his writing skills, teaches other inmates to read and write, and has taught himself to paint and draw. Allridge's art – primarily brightly colored, highly professional renderings of flowers in full bloom against a deep black background – has been featured in art shows across the country and in Europe and have attracted considerable attention – both positive and negative. To his supporters, Allridge's art is a symbol of his rehabilitation – a tangible and graphic example of the man he has become. "It's quite natural that when people get out of a certain environment, they change," said Richard Deiter, executive director of the Washington, D.C.-based Death Penalty Information Center. "It is particularly important in Texas that a person show that [change], because the death penalty statute is focused on 'future dangerousness.' That is the key. When that [prediction] turns out to be wrong, it seems like good grounds for clemency."

Although the question of whether a defendant poses a continuing threat to society – both outside and inside prison – is integral to deciding a death sentence in Texas, rehabilitation has not played a correspondingly significant role in deciding clemency. Indeed, since the reinstatement of the death penalty, Texas has never once granted a commutation based on rehabilitation or in the interest of redemption.

To the opponents of Allridge's bid for mercy – including the Tarrant Co. District Attorney's Office and, reportedly, the Clendennen family – his personal transformation in prison carries little weight, and they consider his art, and the recognition it has earned him, an unending stream of salt in the wounds of their loss. "My ... son, Brian, was also an artist and a writer who got up and preached in church," Doris Clendennen told the Associated Press. "But he never got to fulfill his dreams."

Allridge and his supporters do not claim that his rehabilitation somehow erases the tragedy visited upon the Clendennen family. Rather, their argument is that in order to maintain the integrity of the state's death penalty system, and to ensure that the ultimate punishment is reserved for the most egregious crimes and irredeemable offenders, the system must also demonstrate moderation and mercy. In the case of James Allridge, supporters argue, the remorse is genuine, the rehabilitation exemplary – and a formal acknowledgement of his quest for true redemption will only serve to strengthen the system.

In short, with Allridge set for execution on Aug. 26, there is one question left to answer: Is there any mercy for the condemned? "If the death penalty is a deterrent," proposes Allridge's attorney Lisa Fine, "executing James Allridge will serve as a deterrent to striving for redemption."

A Merciless Excess

Whatever the current state of his character, the odds of Allridge receiving a commutation are extremely low. Since 1999, the Board of Pardons and Paroles has received over 120 requests for clemency in capital cases. It has denied all but three, each brought to them this year. Moreover, a nod from the board means nothing unless the governor chooses to accept the recommendation: Of the three clemency recommendations he's received, Perry has acted on only one. That one, for killer Robert Smith, was based on a claim of mental retardation and was essentially mandatory, given that the U.S. Supreme Court ruled in 2002 that executing the mentally retarded is unconstitutional.

In 2001, Perry had vetoed state legislation that would have barred the execution of the mentally retarded. And in May, Perry demonstrated a seemingly callous indifference to the idea of mercy by rejecting the board's 5-1 vote to grant clemency to paranoid schizophrenic Kelsey Patterson – earning worldwide attention and scorn.

The Supreme Court has also opined that some provision of clemency is necessary to render a capital statute constitutional, and the board has the power to grant clemency on any grounds. "That's the thing, it's an open-ended remedy," said Marcus, executive director of the Texas Defender Service. "There is no restriction on the power of the board. We don't have to show any particular circumstances. They can grant clemency or a commutation for any basis. Rehabilitation is a classic reason to commute a sentence." Despite that wide latitude, clemency in Texas has been more illusion than reality, raising eyebrows from the federal judiciary. In December 1998, U.S. District Judge Sam Sparks upheld the state's procedures but cautioned that the system is "extremely poor and certainly minimal." "The goal," he said, "is more to protect the secrecy and autonomy of the system rather than carrying out an efficient, legally sound system."

Indeed, in the modern era of the death penalty in Texas, rehabilitation has never formed the basis of a board commutation recommendation – even though inmates have occasionally sought mercy on those grounds.

Rehabilitation was a central basis of Karla Faye Tucker's 1998 bid for clemency. Tucker and co-defendant Daniel Ryan Garrett were convicted and sentenced to die for the gruesome 1983 pickaxe murders of Jerry Dean and Deborah Thornton. While in prison Tucker underwent a religious conversion that her supporters – among them Pope John Paul II, conservative preachers Pat Robertson and Jerry Falwell, and Thornton's brother Ronald Carlson – argued was the cornerstone of her successful rehabilitation. The board unanimously rejected Tucker's plea.

Even without a board recommendation, the governor is empowered to grant one 30-day reprieve; but Tucker's rehabilitation and redemption failed to sway the self-proclaimed born-again and reformed Gov. George W. Bush. "Many of Tucker's supporters are basing their request for clemency upon her gender and her religious conversion," Alberto Gonzales, Bush's general counsel, wrote in a memo to Bush the day before Tucker's execution. "Neither of these factors have been given weight in previous decisions made by you in death penalty cases."

Tucker had become a poster child for mercy, and her execution, which embittered supporters, reformers, and policymakers, transformed her into an international example of the absence of mercy in Texas' death system. "It ought to concern all of Texas. It should concern all of the United States. It should concern the world because there is no mercy in Texas," Tucker's attorney David Botsford told The Dallas Morning News. "Clemency is a farce."

By contrast, evidence of rehabilitation has resulted in clemency elsewhere. In 1997, Republican Virginia Gov. George Allen – whose state has the nation's second-most active death chamber – granted a sentence commutation to convicted murderer William Saunders, because Saunders had "established a model record on death row." Most recently, in January, the Georgia parole board granted a commutation to Willie James Hall, based in part on his record of "excellent behavior" while in prison, reported The Atlanta Journal-Constitution.

Similar demonstrations of behavior modification have not impressed Texas' decision-makers. "Texas is one of very few states that requires a finding of future dangerousness to impose the death penalty," said UT law professor Jordan Steiker. While it might appear that standard is, in theory, generous to defendants, Steiker adds that in practice it has transformed the punishment phase of a capital trial to allow the state to introduce every "bad thing you've ever done" as a predictor of future behavior. Those predictions are often wrong - but because of the "malleable" nature of the question, Steiker says, "You would think that it would give some political coverage to the executive branch" to grant clemency based on rehabilitation. "It is ironic because they haven't acknowledged redemption and rehabilitation," he said. "It would seem that the [board and governor] would take an interest in not executing when execution is not necessary. That is almost the textbook definition of excessiveness."

The Man From Murderabilia

Steiker's argument does not impress longtime Tarrant Co. District Attorney Tim Curry, whose office prosecuted Ronald Allridge in 1986 and James Allridge in 1987. In more than 30 years as DA, Curry has never "filed anything supporting clemency, and we won't be in this case," said Curry spokesman David Montague. "I don't think anyone's ever presented anything that we feel justifies it."

Andy Kahan, who has directed the Houston mayor's crime-victim's assistance office for 12 years, shares Montague's position. In contrast to Allridge's supporters, who consider his art a reflection of his focused rehabilitation, Kahan judges Allridge's artistic endeavors as nothing more than a means to capitalize on his death row status in order to make a buck. "He is absolutely nothing except that he has murdered somebody in cold blood," Kahan said.

For a decade Allridge's art has attracted free-world buyers. Allridge has a web site that features some of his work, certain of his drawings sell for over $300, and many are featured on inmate-designed greeting cards created by the advocacy group Citizens United for the Rehabilitation of Errants, which sell for $10 a box. According to Allridge's web site, profits from the sale of his art are used to pay his legal fees.

This does not matter to Kahan, who for five years has gained notoriety for his quest to keep condemned inmates from "profiting" from their crimes. Kahan was instrumental in the 2001 passage of Texas' so-called "murderabilia" law – a term Kahan says he coined and that, God willing, with a little help from his friends (whom he prods to use the term more often in casual conversation), he hopes will some day become a dictionary entry. The law is designed to prohibit convicted criminals from profiting from the sale of items marketed based on their inmate status, and it allows the state to confiscate any profits to use for victim compensation.

The law has never been tested. Kahan said he has been tracking Allridge's enterprise for years but only recently decided that his should serve as a test case. "I've always been of the opinion that it is nice to pass laws, but not if you can't or don't enforce them," he said. Kahan has filed a formal complaint with the Polk Co. DA's office (home to the Texas Department of Criminal Justice's Livingston Unit, which houses death row inmates), and with TDCJ, asking them to shut down Allridge's Web site. (TDCJ's Office of Inspector General is investigating Kahan's complaint, and the Polk DA has appointed a special prosecutor to look into the matter.) What prompted Kahan's current indignation? "Two words," he said. "Susan Sarandon."

Sarandon has been corresponding with Allridge for nearly eight years, and on July 14 made a trip to Livingston to visit him and say goodbye. Why has Kahan waited to act until now? "The public wasn't familiar with James Allridge; he was not a household name," Kahan said, until Sarandon came to town. Kahan had been "looking for a reason" to pursue a legal case against Allridge, which Sarandon gave him. "Because of her visit, that gave him publicity that he didn't have before," he said. "That has bumped him up to a celebrity status ... and that is why I requested an investigation." In sum, Kahan insists, the only reason anyone is interested in Allridge's art is because of his "status on death row." "The [Clendennen] family is obviously outraged that he is using his death row status," he said. "From the [viewpoint] of the victims' families, let me tell you, there is nothing more nauseating."

Kahan is not persuaded by the claim that Allridge's art is part of his effort at rehabilitation – or by the idea that Allridge could use his art to compensate the Clendennens if his sentence were commuted. "More power to James Allridge for turning his life around," Kahan said. "[But] you're not put on death row to rehabilitate."

Justice Tempered

Other victim advocates reject Kahan's position and consider rehabilitation and mercy extremely important. "They should be rehabilitated - it's all the hope we have," says Linda White, spokeswoman for the Texas branch of the advocacy group Murder Victims' Families for Reconciliation. White's daughter was raped and murdered in 1986 by two 15-year-old boys. Although certified to stand trial as adults, and therefore eligible for a death sentence, the two pled guilty to the crime and are currently serving 54- and 55-year prison sentences. At the time, White said, people would make comments to her about how "it was a shame we couldn't fry them." But White never agreed, she says, and she does not believe that a jury's prediction of "future dangerousness" should forever nullify a chance for mercy. "If you see that a person has made significant gains, what sense does it make to continue the process without commutations or clemency?" She points to Tucker's case as an example. "[T]here was no good reason to execute that woman, no good reason," she said. "And she could've been put into the general [prison] population and could've been a wonderful help to other people, helped to turn other people around."

MVFR member Jeanette Popp agrees. Her daughter was the victim of Austin's notorious 1986 Pizza Hut murder, for which two innocent men, Christopher Ochoa and Richard Danziger, served more than a decade in prison before being exonerated. The two were freed after the actual killer, Achim Josef Marino, confessed to the crime; Popp implored Travis Co. prosecutors not to seek the death penalty for Marino.

"There is no such thing in Texas as rehabilitation, or clemency due to rehabilitation. They have no idea how to temper justice with mercy," she said. But Allridge, like Tucker before him, is a remarkable example of an inmate who has rehabilitated himself "in spite of the system," she said. "The case of Karla Faye Tucker breaks my heart every time I think about it. And James Allridge is probably going to be another waste – another horrible waste."

Popp agrees that convicted killers should not be allowed to profit from their crimes but doesn't see any sense in trying to extract compensation from a death row inmate. "Think about it – if we gave [Allridge] clemency he could continue his artwork and compensate his victim's family," she said. "Let him do what he can to make up for what he did. Execution is an easy way out, and no one gets anything out of it. The family isn't going to have their rage reduced. ... It isn't going to go with [Allridge], that is for sure."

The Quality of Mercy

Time is running out for James Allridge. His supporters know that, realistically, there is only a slim chance that he'll be granted a commutation – but that has not erased their hope, or Allridge's. "I do have hope despite my situation," Allridge said in an interview posted on his web site. "I think that you should never take away someone's hope because it destroys the soul and can create a monster that no one is going to want to deal with. I think that everyone, no matter what they have done, should be given the opportunity to become rehabilitated."

Interestingly, it appears that Charles Aycock, a member of the six-member Board of Pardons and Paroles, might share that opinion. In May, Aycock, a longtime county attorney in the Panhandle and former president of the State Bar Association, was the only board member to vote in favor of granting a commutation to David Ray Harris – whose false testimony in the late Seventies landed Randall Dale Adams on death row for the murder of a Dallas police officer. (Errol Morris told Adams' story in his 1988 documentary The Thin Blue Line; Adams was released from prison in 1989.)

In June, Harris was facing execution for a different murder, committed in 1985 during a bungled burglary attempt. In his commutation petition, Harris recounted his difficult childhood and the events leading up to the murder. As reported by Rick Casey in the Houston Chronicle, Harris recounted his religious conversion and explained that while in jail he'd earned an associate's degree in theology from Calvary Bible Institute. Harris was asking the board for a commutation based on rehabilitation.

Aycock declined to comment on his vote in favor of Harris' bid, but Casey reported that Harris' petition included a quote from Aycock that had appeared in a previous Chronicle story. "I respectfully submit that clemency decisions are not about whether the person facing death has had his case reviewed by one court or ten courts," Harris wrote. "Clemency is not about a rigid legal standard – or even a legal standard capable of articulation. Rather, it is about mercy."

Slicing Up The Pie

The sun is just coming up over the East Texas horizon as our aging, beat-up sedan cruises down U.S. 290 East toward the Travis County line. At that point, we will leave the boundaries of the 10th U.S. Congressional District, currently represented by Austinite Lloyd Doggett. Yet on another, less familiar map, we are not really leaving the 10th at all – we are simply heading into territory inside the new 10th, which will come into full existence on Nov. 2, 2004.

This July morning we are traveling from one end of the new District 10 to the other. Before U.S. House Majority Leader Tom DeLay (R-Sugar Land) applied the Calvinist doctrine of predestination to Austin's voters, such a trip simply involved a direct, 30-mile drive down Interstate 35, from the southern border of Williamson County to the northern one of Hays. But post-re-redistricting, we have barely begun our journey. When we reach our turnaround point, we will be about 140 miles from home, in the northwestern suburbs of Houston.

Tomball, to be specific. When we get there, we will have dropped 387 feet in altitude, from the edge of the Central Texas Hill Country to the East Texas coastal plains. But make no mistake – for one of our fellow passengers, Lorenzo Sadun, the trip is uphill the entire way.

This daunting journey is precisely what Tom DeLay calculated when he split the old 10th into three different districts. The new 10th represents what the arch-partisan DeLay fantasized about – a centralized bastion of liberalism destroyed, sprawled into a completely different landscape, and one in which Democrats became, if not extinct, at least as docile and hard to find as the horned toads once ubiquitous in Central Texas. The district was drawn to be such a sure electoral bet for Republicans that – following a brief early flirtation by Austin Mayor Emeritus Gus Garcia – no Democrat even bothered to file for the seat.

So in the new 10th, there is now only one thorn remaining in DeLay's side – Sadun, a 43-year-old married father of three, an unpretentious mathematics professor at UT-Austin, and an earnest liberal Democrat who simply couldn't stand to see his congressional voice vanish without a fight. Professor Sadun is now mounting a diligent, quixotic write-in candidacy for Congress against former U.S. attorney Michael McCaul, winner of the GOP primary. Indeed, conventional wisdom decrees that Sadun barely rises to the level of thorn – on election day, he will be pulled painlessly from Big Tom's ribs by McCaul, whose Web site strikes the reassuring tone of an officeholder-elect (emphasis ours): "Since the election ended, I've been traveling the district, meeting with future constituents and listening to their concerns."

Conventional wisdom has an insistent, intimidating voice. Lorenzo Sadun is ignoring it. And he's not the only one.

Personal Connections

The Republican Goliaths who would represent most of Central Texas – newcomer McCaul, 17-year incumbent Lamar Smith of San Antonio (CD 21), and Williamson Co. favorite son John Carter (CD 31) – would appear to be shoo-ins. (As does Doggett, correspondingly gerrymandered into his new, bizarrely shaped CD 25, which runs from East Austin to Mexico, and where he faces little more than token opposition from novice GOP candidate Rebecca Armendariz Klein.) But the elephants must first go through the formality of a November general election, and three men have chosen to pick up a sling and face them. All three fit the white, male Democrat demographic (known at the Legislature as "WD40s") that DeLay has targeted for isolation or elimination.

Sadun declared too late to be an official nominee, but his write-in candidacy has earned the backing of the state party. In CD 31, Jon Porter, a 34-year-old Cedar Park lawyer, has decided to see if Fort Hood's military families, formerly represented by Chet Edwards, remain willing to support a Democrat. And in CD 21, Rhett Smith – no relation to the incumbent – hopes that the redrawn district burrows so far into Austin that it will tip in a Democrat's favor.

Each of the districts is anchored by metropolitan areas, but the Texas countryside remains traditionally home to retail politics – county fairs, Fourth of July picnics, Memorial Day parades... home to handshakes, baby-kissing, and creating name ID. This morning, our destination is the Hempstead Watermelon Festival.

Although the weather is bracing and the countryside lush, the trip down to Hempstead offers little political comfort: A cafe in Chappell Hill features a discouraging marquee: "Bush is the man."

Nonetheless, Hempstead remains a good target for a Democrat. Even for East Texas, Waller County has a particularly high percentage of African-Americans, likely the reverberation of historically black Prairie View A&M University just six miles east of Hempstead. The Watermelon Festival won't put Sadun in front of a lot of voters – Hempstead has just 4,173 citizens, and all of Waller County only 29,183 – but a write-in candidate can't afford to miss a single one.

The scene is not without unintentional comedy. Sadun is clearly a fish out of water – a liberal, Jewish college professor from an urban university (with his balding head, glasses, and mustache, Sadun bears more than a passing resemblance to the feckless stereotype of an intellectual in the "Mallard Fillmore" comic strip) trying to convince country folks that he's their guy. The candidate is a little awkward, but compensates with enthusiasm, passing out cards and shaking hands as quickly as he can.

Most of the responses are politely noncommittal – "Nice to meet you" and little else. Some people politely make it clear that they are hard-shell Republicans, while a few are downright ornery. One peppers Sadun with "facts" – "the decline of public schools began with the removal of corporal punishment"; "we have more racial problems now than we did back in the '50s." Yet another is preparing a parade float for the Kingdom Kids, an organization that "goes into schools and teaches Christian values. Thank God the school lets us in." Unaware that Sadun and campaign manager Patti Edelman are Jews, he blithely lectures them at length, adding that homosexual marriage will destroy America, and then advises, "When in doubt, read the instructions. The instructions are in the Bible." He doesn't specify a testament.

Not a likely Sadun voter, but the conversation ends with a glimmer of hope, at least of finding common ground. The self-appointed preacher walks back to Edelman minutes later and remarks of Sadun, "He's a nice guy. You know, I don't vote straight ticket. I'm Republican, but I vote for the man. I'll vote for a Democrat if I like him. As long as he has strong moral fiber." One wonders if Sadun might have swayed him a little further by recounting his active role in his synagogue. Probably a stretch.

But Sadun will strike a few more sparks in Hempstead. This is not 100% Bush Country, and rural Democrats are far from extinct. On the local level – where being Dem is more of an East Texas tradition than an ideology – they often win. On the parade route, we spot a sight that would be rare even in Austin – one of Sadun's bright green bumper stickers on the back of a van. At the festival grounds, a woman approaches the candidate furtively, as though the KGB were in her shadow, and gently says, "I heard you say you're a Democrat. I am very Democrat."

Unfortunately, she lives in Madisonville, outside CD 10, but another person – an actual district resident – loudly and proudly tells Sadun between bites of watermelon that he'll support him "as long as you're a Democrat. I don't want to talk bad about our president, but we've got to get that jackass out of the White House." In another moment, a frail-looking woman in a motorized wheelchair angrily declares, "I'm tired of the government giving money to the rich. I can't get social security or disability right now."

Sadun gets into an extended discussion with three African-American ladies who ask him what he will do in Congress. The question gives him a chance to reel off his list of the core beliefs that he learned from his parents, who immigrated from Italy just before World War II: "Live up to your responsibilities; leave this world a better place than you found it; stick up for your rights; and stick up for the other guy's rights."

These moments are enough to uplift the Long Shot.

"People are of different backgrounds, but the nice thing about a festival is, there's a bottom line that we all agree upon," says Sadun. "Okay, it's watermelon. But that's a start. It's a place to start a conversation, it's a place to make a personal connection. You make a personal connection with enough people, you make progress. And if it's somebody who has totally different political views and would never vote for you in a million years, okay – you shake their hand and they see that a Democrat is a real human being and doesn't have horns and a tail. This is important, because right now we've got a pretty widely split country, where people are used to hearing the same things over and over again, and never hearing the opposite opinion."

Sadun acknowledges being a bit out of his element, but says, "I'm learning to make this my element. If you're going to represent people, you gotta understand who they are, and you don't understand who they are sitting at UT. You find out who they are by going out to where they live, doing the things they do, and appreciating what they do. Whatever the results of this election, I'm going to come away from this with a much better understanding of where we live, and who we live with, than I had before."

Common Values

Unlike Lorenzo Sadun, Jon Porter doesn't need to develop Texas street cred. He's as native as they come – born in 1970 in Pasadena, about two blocks from the legendary Gilley's honky-tonk. His family bounced around from Houston to Corpus Christi, to College Station, Lewisville, and Flower Mound. He's also familiar with CD 31 – he got his undergrad degree from Southwestern University in Georgetown, and now lives in Cedar Park. In between, he got a law degree from the University of Arkansas, spent a few years as an investigator and prosecutor with the Texas State Board of Medical Examiners, and last year became a partner at McDonald, Mackay and Weitz, LLP.

Also putting him in better position than his CD 10 colleague is that Porter is the true Democratic nominee in CD 31, so his name will actually appear on the ballot.

But it's questionable whether that will help him much, beyond straight-ticket votes. Porter knows he also has a difficult fight for name recognition. A recent error in one of the district's prominent community newspapers, The Rockdale Reporter, exemplified this struggle – it incorrectly stated that "Milam County will no longer be represented by District 11 Congressman Chet Edwards of Waco but by Congressman John Carter of Round Rock after the November general election." (Immediately after the primaries the Chronicle made the same mistake, earning a stern chewing out from Porter's wife, Nisa, a former Chronicle employee.)

So Porter is constantly on the road, wearing out tires and shoe leather. June 5 finds him in the Killeen back yard of Bobby Grant, chair of the Bell County Democrats, raising the funds he'll need to continue his treks. Earlier today, he was in the tiny town of Bartlett; now, he's also in front of a modest crowd, just 31 people.

Porter needed to hustle even to convince Dems to support him. "When I first met him, I wasn't totally impressed," Grant confesses. "But as the days go on and the weeks go on, this guy is a hard worker who campaigns. He'll go anywhere, do anything; he's smart, intelligent, you can ask him a question and he can give you an intelligent answer. And I can't say that much for Mr. Carter over here in Round Rock." At community gatherings, Grant complains, "You usually get to see a video" of Carter rather than the representative himself. (Rep. Carter's campaign did not return calls requesting an interview, nor did that of Michael McCaul.)

In the shadow of Fort Hood and one county south of the president's Crawford ranchette, one might be quick to stereotype Bell County's military culture as a bunch of die-hard Bush loyalists. Not so, say the veterans gathered in Grant's backyard.

"My philosophy is," Grant explains, "I believe in helping that guy like, when I was down at Wal-Mart today or when I went by the HEB, those people work[ing] at those checkout stands and trying to make a living on the wages they're making, I have a concern for those people. I also have a concern for the deficit that we're running up in this country." Grant says that he is 66 years old and doesn't want his grandson to "wake up one day and say, 'I wonder why my grandfather didn't try to stop some of them.' That's what I'm trying to do right now. Elect people that will maybe put some brakes on what we're doing right now in this country.

"Plus, the Iraq situation is just a travesty, I think," says the retired reservist.

"We shouldn't be in Iraq," agrees Vietnam vet Bill Perkison. A former intelligence analyst, he suspects that the Bush administration saw what it wanted to see in the flawed Iraqi intelligence. "We are not a preemptive-strike country; we never have been, and we never should have started. In the case of Afghanistan, because the Taliban was there, located and known, I support Bush and I support what we did there, and I think we should have done it even while Clinton was in office, and we should have wiped that nest of terrorists out. And we should still be focused on finding those people," rather than attacking Iraq, he says.

More than one person at the party calls him – or herself a formerly "passive Democrat" or says, "I've never been involved in politics until now." They say they've found themselves newly motivated by the appalling record and style of the Republican leadership.

Porter lays out his philosophy to the small gathering: "The reasons that we're doing this... going forward for a common ideal, for our common values, and our common values are that, in fact, America does work when Americans work; are that health care, access to good insurance, should be a right and not a luxury. We're doing this because the national deficit is so out of control; the Democratic Party, despite being labeled as tax-and-spend liberals, are now the party of fiscal restraint, and we can prove it – back when we were in control, the deficit was lower, the debt was being paid off.

"Now, under George W. Bush and John Carter, the deficits have gone up. Each and every one of you owe more than $24,000 apiece to the national debt. My 21-month-old son owes $24,000 to the national debt. We are enslaving our children's future. For what? Tax cuts for the wealthy. An unjust war built on a stack of cards and lies, where we're losing lives every day, because the president and his people did not listen to their generals."

Medicare, social security, and insurance, Porter tells them – these should be our national priorities, and they're not being met by "compassionate conservatism."

"Across the board, people are just really upset," Porter tells me later. "Frankly, people are just real pissed off, and they're looking for a place to vent it.... I've met Republicans who come up to me and tell me, 'Jon, either (a) I'm going to vote for you, or (b) I'm so frustrated I'm just going to stay home.'" In Bartlett, Porter talked about the jobs that Bush claims to have created, and, "[a] guy came up to me and said, 'Jon, I have two of those jobs.' He was working Wal-Mart and McDonald's. And he was a former Dell employee."

Is it realistic to imagine Porter can win? Don't try to tell him otherwise. He knows that pairing several small counties with the booming – and staunchly Republican – Williamson was intentional, but says, "Robertson, Milam, and Falls are ours. They will fall into our camp if I don't spend a second in those. Those are strongly, strongly, strongly Democratic counties. Erath, [Coryell], and Hamilton are right on the cusp. They could go either way.

"We could win all those outer counties very easily, with a little bit of work, and it wouldn't be enough because of Bell and Williamson. I want to tell you right here and now: Bell is in play. And with a little bit of work from you, and talking to friends and family, we can take Bell County."

But Porter will need more, much more, than unblinking optimism. This fundraiser collects about $1,000, bringing his total war chest to $14,000. John Carter's stands at $722,000.

Smith vs. Smith

If there are many Democrats in Comal County, most haven't chosen to come out to their county party's Memorial Day picnic in New Braunfels' Landa Park. The picnic begins with a modest number of folks sitting under the beautiful oak tree in the center of Landa's dance slab, listening to a high school jazz orchestra. Once the band wraps up, it quickly becomes clear that most of the audience were the musicians' parents, who fold up their lawn chairs and leave. For the rest of the rally, the crowd numbers about 60 – and if you discount the invited politicians and the many folks working some sort of booth or another, there are only about 20 who actually showed up just to listen.

The size of the audience doesn't diminish the ardor of the speakers. Supreme Court candidate and labor lawyer David Van Os, state party chair Charles Soechting, and congressional candidates Henry Cuellar and Charlie Gonzales all try to whip up fervor. By far, the hottest fire and brimstone comes from longtime Comal County activist Hal Casky. The Democrat is elderly and seems frail – until the moment he begins to speak.

"I want to talk to you about the far right and the Christian Coalition that has taken over and polarized this nation of ours," Casky thunders. "I'm proud to say that I attended SMU Perkins Theological Seminary years ago – Hallelujah! And I want to tell you that I'm a liberal, and I know as much about the Bible as the far right could ever dream of knowing!"

"Amen!" comes a shout, and the crowd – what there is of it – goes wild.

"I am sick and tired of being sick and tired and pulling up against these idiots who think they know what is in the scriptures, and they do not! They cannot tell you the difference between poetry, they can't tell you the difference between allegorical language, nor can they tell the difference between mythology, and they know very little about biblical history! They are a group of provincial liars!

"What we have to do is attack those people. And I want you to quit being ashamed of being a liberal person and taking the holy scriptures seriously. Because let me tell you something: There's more love in those holy scriptures than there is hate."

Rhett Smith isn't nearly so rousing a speaker, and like Porter, he's having to work hard to make voters aware that there is an alternative to Lamar Smith. "What is important to me is to fill a need for a political voice," says the 54-year-old grandfather, accountant, and Navy veteran. "I will try to visit personally every single precinct in the district."

On Lamar Smith's Web site, it is obvious that illegal immigration is the congressman's front-burner issue – to him, there is no graver threat to the U.S. "That's his only big issue, besides supporting Republicans," Rhett Smith says. "And of course, he doesn't step up and support education. He's got a very poor record on education.

"We really need to build a better relationship with our neighbor to the south, Mexico. We've never really gotten the boost from the North American Free Trade Agreement, which got a bad rep. If we had invested a little bit more and been a little more creative in dealing with that, we'd have gotten a better boost.... For a fraction of pennies on the dollar of what we spend in nation-building, we could easily educate and train an awful lot of people in Mexico about environmental laws, about highways and transportation, maybe help them build some of the infrastructure, their health and medical care program.

"We could bring these people up to speed, because obviously they're many years and years behind the industrialized world, but with a little injection of American creativity and American know-how, we could bring these people up to speed in a few years instead of... always working with a third world country."

Challenger Smith is soberly realistic about his candidacy, but looks for silver linings: "I think I have a better chance than John Courage did, and he was a heck of a candidate," he says, speaking of the Dem who in 2002 garnered 25% of the vote against Lamar Smith in the old CD 21, which encompassed more of the Hill Country and less of Austin.

"I think there's going to be a negative Bush/Cheney vote, and a negative Tom DeLay and Lamar vote. You know, Lamar is pretty shy about getting in the media, and perhaps that serves him well." (Lamar Smith was asked for an interview about Rhett Smith, but a campaign spokesman would only comment, "He doesn't know him, he hasn't seen him, and he won't vote for him.")

Smith knows that to win, it will take more than Comal, where only one elected official is a Democrat. In fact, he's banking on Austin. CD 21 has long covered western Travis County, but re-redistricting pulled it into the heart of the city, right across 38th Street from Central Market. "The new map [of this district] kind of favors the Democrats," Smith says. "I think they were so greedy, DeLay and his crowd, of trying to dilute Lloyd Doggett and some of the other Democrats. But when you do that, you've got to shift people somewhere, so obviously you're going to dilute Republican voting strength. They were just taking a gamble that they could have it all.... We've got to have a huge turnout in Austin/Travis County."

Nonetheless, here he is in Comal, under an oak tree, his shirt stained with summer sweat, meeting the few Democrats on hand. "Those Democratic chairmen in each of those counties are very active, really go-getters. The guys in the large counties are good, but the guys in the small counties really just put their heart into it," Smith says. "We're going to fight for every single vote."

Protecting Your Privates

President George W. Bush has been skipping around the country accusing Sen. John Kerry of "flip-flops." Well ... I gotchyer flip-flop right here. It's a doozy. And it threatens not only the privacy but also, in a quite direct way, the privates of the citizens of these United States.

In 2000, Bush ran on a platform that loudly supported medical privacy. He has said, "I believe privacy is a fundamental right." In April 2001, he promised to protect, he said, "the right of every American to have confidence that his or her personal medical records would remain private." Tommy G. Thompson, secretary of health and human services, chimed in: "We are giving patients peace of mind in knowing that their medical records are confidential and their privacy is not vulnerable to intrusion."

That promise has been broken. On March 6, The New York Times ran a polite headline on page eight: "Administration Sets Forth a Limited View on Privacy." Decide for yourself the extent of the flip-flop -- and whether the story didn't call for starker headlines on page one.

The Bush-Ashcroft Justice Department is attempting to force hospitals and clinics to turn over medical records on thousands of abortions. More than 2,700 files have been demanded in the San Francisco area alone. Files are also being sought from Kansas, Missouri, Pennsylvania, and Washington, D.C., as well as the cities of L.A., Philly, Pittsburgh, New York City and still counting. Ashcroft claims these records will help him defend a new law prohibiting partial-birth abortions. Doctors are challenging the law on the ground that it prevents certain abortions even when they're medically necessary.

Fundamentally, Bush's claim is that the government can instruct doctors on the needs and treatment of their patients. One function of law is to set precedents. If the government has the right to dictate one aspect of medicine, and if that right is unchallenged and/or upheld, then a precedent has been set for government to dictate other medical priorities. There are honorable arguments for and against abortion, but it is difficult to imagine an honorable argument for the government's right to dictate specific medical care. If government can dictate something so intimate and personal then what, according to that precedent, can it not dictate?

Flip-flopping drastically on his 2001 promise, Bush's Justice Department now states that patients "no longer possess a reasonable expectation that their histories will remain completely confidential," adding that federal law "does not recognize a physician-patient privilege." Do not overlook a point that should be as alarming to conservatives as to progressives: These sweeping statements do not single out abortion cases; they cover all medical practice. The government is claiming the right to pry into any medical records -- psychiatric, for instance, or records of substance-abuse treatment, AIDS, rape, incest, anything at all. Your privates, in short.

That is a radical reversal of two centuries of American legal practice. It is also a reversal and denial of what every American expects and assumes when in need of a doctor's help. When is anyone more vulnerable than when they need a doctor? The Bush administration is claiming the right to intrude upon that vulnerability.

This point was not lost on federal District Judge Phyllis J. Hamilton, who denied the Justice Department access to abortion records from San Francisco area hospitals and Planned Parenthood clinics. The Times reported her stand that "forcing the providers to turn over records would undermine the privacy rights of patients and could dissuade some from seeking treatment." Judge Hamilton said, "There is no question that the patient is entitled to privacy and protection. Women are entitled to not have the government looking at their records."

When put that baldly, it's astonishing we're even having the argument. Of course people are entitled to not have the government snoop on their medical treatment. Bush doesn't agree, but, this being an election year, he's been forced to flip-flop back slightly. On March 9, Justice withdrew subpoenas from Planned Parenthood clinics, stating that "we will not move at this time" but might "renew our requests if necessary." For "if necessary" read "if re-elected." As of this writing, hospitals are still being harassed.

A Justice Department sop to privacy has been that names would be deleted from the records. But note: That nicety is not in their basic contention that people "no longer possess a reasonable expectation" of patient privacy and that federal law "does not recognize a physician-patient privilege." Judge Hamilton said the records the government is demanding contain "potentially identifying information of an extreme personal and intimate nature," including the age of first sexual experience, types of contraception used, details of abuse and of sexually transmitted diseases. Bush doesn't say why he needs those details, but he claims the right to know them.

The Times summarizes other critiques of his efforts: "If patients have no reasonable expectation of privacy ... the government may be more aggressive in seeking records from hospitals, insurance companies, and other businesses in criminal, civil, and administrative cases." That's putting it mildly. The only possible motivation for claiming such sweeping rights is to assemble dossiers of intimate material that, if Bush wins this issue, can then be used against dissenters of all kinds. (Remember that under the USA PATRIOT Act, many forms of dissent can be classed as "terrorism" at the president's whim.)

As is Bush's usual practice, he sent a small fry to publicly defend these drastic subpoenas, a spokesman named Trent D. Duffy (where does the far right get these names?!), who assured us all that this president is "strongly committed to medical privacy." The Bush White House does not answer questions. Instead it issues sweeping statements and is unconcerned that its statements arrogantly contradict its actions. Trent D. Duffy did not mention that the government has not informed any of the patients concerned that it wants their records. Nor did he comment on what else the government is demanding. This is the Times' summary of the government's demands:

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Rove-ing Lunatic

It would be hard to find a more compelling documentary subject than Karl Rove, the ruthless but brilliant political puppetmaster whom many credit with masterminding not only George W's improbable ascent to the governorship -- and, even more improbably, to the presidency -- but also with the end of bipartisan government itself. Filmmaker (and first-time political doc-maker) Michael Paradies Shoob, along with co-director and cinematographer Joseph Mealey, read Wayne Slater and James Moore's 2003 book, Bush's Brain: How Karl Rove Made George W. Bush Presidential, and decided that there was a film in there about the White House senior adviser whom some call the "co-president."

Bush's Brain, the film, is essentially a Rove retrospective, a chronological examination of the Rove modus operandi in the chess game of American politics -- or, make that the "putative" Rove m.o., because Rove declined to participate in the film, and because the essence of Karl Rove is to not be caught, just strongly suspected. So, what we and the filmmakers are left with, essentially, is a case built by examining the entrails of the artist's handiwork. Or deconstructing Rove's "junkyard dog approach to politics," in the words of University of Texas presidential scholar Bruce Buchanan. ("Dogmeat" is the term used by Austin political consultant Bill Miller, unable to suppress an on-camera giggle at the sheer aptness of the term to describe the Texas Democratic party post-Rove. Note the recurring canine imagery.)

"The thrust of the film, really, is the issue of 'winning,'" explains Shoob, "and what we, as a country, have sacrificed when it's all about winning and there's no one who comes in at the end and says, 'Well, you didn't play fairly so you forfeit.' America is based on the idea of everybody having a shot, of a level playing field. And if you look at our historical fabric -- all of these elections -- being changed by people breaking the rules, that's pretty profound as an idea."

Of course, one of the hallmarks of what Slater, The Dallas Morning News Austin bureau chief, refers to as the "mark of Rove," is that often the rules are not technically broken. Obviously, there was no rule, for example, that prohibited a high school debate team member from setting up his table for a debate by arranging boxes of (what were, in fact, blank) index cards -- in full view of the opposing team. Rove's affinity for mind games appeared early, according to the film, and just got more and more sophisticated over time.

Think back to the eve of the '86 Texas gubernatorial race debates, when Bill Clements was in free fall in the polls against Mark White, and suddenly the media's attention was yanked away from the debate and diverted to news that Clements' campaign consultant Rove's office had been bugged. The Houston Post's Glenn Smith immediately smelled a rat and suspected that Rove had bugged his own office and had called in the FBI; the Austin American-Statesman's Dave McNeely was suspicious but not convinced. White lost the election. End of story.

The film walks us through other Texas elections with familiar trajectories: popular Democratic officeholders felled by unlikely Republican challengers when, late in the campaign game, the waters are muddied by the sudden injection of some "red herring" scandal in which the FBI is called in, or some issues-irrelevant innuendo. The populist, progressive agriculture commissioner, Jim Hightower, losing his job in 1990 to an inexperienced Rick Perry (then a Democrat whom Rove talked into turning Republican and challenging Hightower) following an FBI investigation -- by the same agent called in on the '86 office incident -- into on-the-job campaign fundraising by two elderly Hightower employees and the subsequent conviction, 27-month sentences served, and fines paid by their two departmental higher-ups. Needless to say, Hightower was history. Says Shoob: "As filmmakers, the juxtaposition of Pete McRae [one of the Agriculture Department officials convicted] being ruined politically by Rove, who's now in the White House, was a potent impetus for making this film."

The film also postmortems the surprise upset of the '94 gubernatorial election, in which Rove was instrumental in replacing popular Democratic Gov. Ann Richards with his man, the first-time officeholder, George W. Then there was the South Carolina Republican primary in 2000, in which John McCain was the man to beat and then he wasn't. The latter, observes commentator Molly Ivins, was "textbook Rove" in that on the Sunday before an election, the windshields of churchgoers at fundamentalist churches will be papered with fliers alleging something unsavory about a candidate. Or there will be a rash of call-ins to a variety of talk-radio stations, relaying some suspiciously similar rumor about a candidate.

The defeat, last year, of Max Cleland — the Democratic senator from Georgia, a war hero who lost both legs and an arm in Vietnam -- following a $14 million campaign to oust him, in part by portraying him as unpatriotic. The recent outing of Joseph Wilson's wife as an undercover CIA operative following a fact-finding mission report by Wilson that contradicted the administration's position on a WMD connection in Niger. And then the film looks at the deeply troubling possibility that Bush may have taken us to war in Iraq because being the War President keeps his poll numbers up — policy driven by politics.

Austin Chronicle: It must have been difficult to make a film about Karl Rove without Karl Rove, other than the secondary sources you used, like the CNN clips, and the rebuttal letter he wrote to the authors of the book. How did the Republicans you approached react to the prospect of being in the film?

Michael Shoob: We called a lot of Republicans and set up a lot of meetings. A lot of them were summarily canceled on the eve of the interview. Wayne Slater found out that the White House had told people not to talk to us. A few Republicans appeared probably because they didn't care what the White House thought, and others because the White House probably didn't think to call them.

A.C.: What do you see as the film's revelations about Rove?

M.S.: It's kind of cumulative: You have a guy in the White House who may be co-president, who may be calling a lot of the shots, and we know nothing about him. As Bruce Buchanan said, some in D.C. think Rove should submit to a confirmation process -- he has such enormous power, and no one knows his history. The film takes a hard look at where we are. This is a democratic process, and if rules are broken, what kind of democratic process do we have? And, as citizens, are we being too passive and allowing things to go on? Sure, Clinton had hardball campaign consultants, but none of them moved into the White House with him — they didn't groom him from beginning to end — [and] now there's a revelation: Here was the guy who envisioned George W. becoming president before George W. had considered it himself.

Texas Trail Mix

Expect a twofer from a Paul Stekler political documentary: a film with a compelling cinematic narrative mediated by a filmmaker with genuine political expertise. In his new film, Last Man Standing, Stekler takes a long look at Texas' transmogrification from LBJ and Ann Richards country to today's Republican dominance and asks, essentially, "Is that all there is?" After following the 2002 statewide and local campaigns that Stekler zeroes in on, the Reader's Digest answer to that question is: maybe, or then again, maybe not. But you'll draw your own conclusions.

Politics has always been an obsession with Stekler, who originally thought that life as a poli-sci academic was the way to go. But while teaching at Tulane, his head got turned by the political doc-making life -- Louisiana politics will do that -- and he eventually jumped ship from gown to town, at least for a while. (He's now in University of Texas's Department of Radio-Television-Film, where he can both teach and make movies.) The films he has made during the past decade -- including Vote for Me: Politics in America (1996), Louisiana Boys: Raised on Politics (1991), Eyes on the Prize II (1990), and George Wallace: Settin' the Woods on Fire (2000) -- have been duly decorated with Emmys and Peabodys.

The Texas political landscape that caught Stekler's eye at election time 2002 was a mixed bag of the predictable and the intriguing, from the usual Bush clones to the Texas Democratic Party's strategic "Dream Team" slate, featuring the first Mexican-American major-party nominee for governor (Laredo oil man Tony Sanchez) and the first African-American major-party nominee for U.S. Senate from Texas (former Dallas Mayor Ron Kirk). Would either of these candidates be able to stem the Republican tsunami? Alas, an exciting race does not necessarily mean an easy film for the doc-maker who wants to chronicle it.

"Part of what was so hard about making this film was that the statewide campaigns were not always cooperative, and that was a drag," Stekler says. "For example, we'd be following Perry one day and he'd go in a door, and his guys would not let us follow him, so we'd have to go all the way around the mall -- very petty. Or a campaign would not tell us exactly where they were going to be, and we'd been driving half the state to get there. Or a campaign would say we could ride on their plane and at the last minute say we couldn't, so we'd have to drive nine hours to meet them someplace else.

"The most cooperative campaign was [John] Cornyn's. They understood what many of the others, who view the press as some kind of enemy, failed to grasp. A good campaign has nothing to fear from the press if only they give them enough access to keep them satiated, keep them informed, and if the campaign is able to control its candidate in public. Then the candidate gets on television -- which is what everyone wants."

In the end, Last Man Standing closes in on a little-known race for state representative in Dripping Springs, which, to the filmmaker's delight, turned out to be a cliffhanger, right down to the last precinct box. "Of the zillions of races we could have picked, we picked this one for good reasons -- it wasn't just luck. This was a swing district with two extraordinary characters and candidates who, to me, represented something important in terms of where their parties are going."

It seems only fitting to ask Stekler, recently emergent from the rough and tumble of Texas politics, to make sense of his experience and offer some thoughts on what makes for a good political doc:

The Paul Stekler Top 10 Essential Ingredients of a Compelling Political Documentary

1. It's the Characters, Stupid: "Earnestness and seriousness do not make a film interesting to watch. Good characters can -- and they're not always the big-time candidates. In films like The War Room and A Perfect Candidate, the stars are the consultants. In Last Man Standing, the stars are two young, ambitious rivals for state representative, Rick Green and Patrick Rose. In any case, you've got to offer main characters that an audience can get to know and who are compelling. If you don't care who wins or loses, you're not liable to make it to the election night in a film."

2. It's Got to Be More Than Just Another Election: "Campaigns are ready narratives for sure. Elections have beginnings and endings. Someone wins; someone loses. But if the elections are about something 'bigger,' then the film has more weight. In our Texas politics film, you've got a state that produced a Lyndon Johnson, where Ann Richards was still governor just a decade ago, but where it seems Democrats can't even get arrested these days. Is this a permanent state that George W. Bush and Karl Rove helped to cement in place? Or is the coming minority-majority about to spring a political realignment and a new Democratic majority? Or is it something in between?"

3. You've Got to Put in the Time on the Campaign Trail: "Much of the news media's idea of covering politics is filming speeches and press conferences, hardly the stuff of riveting filmmaking. It's those magic moments, an offhand comment to a candidate, a backroom strategy session, a crucial mistake made, an exhausted staffer pouring out his heart -- these show the reality of politics, and hook an audience. And the only way to catch those kinds of moments on camera is to spend the time out there with your subjects, picking and choosing the events and times that seem most promising, but working it hard when you're there. The Last Man Standing crew filmed for 70 days over the course of a very hot 2002 Texas summer, collecting over 200 hours of footage, most of which is not in the final-minute film."

4. Human Drama Wins in a Landslide: "The best literary works on American politics - All the King's Men, The Gay Place - are all about why people are driven by politics. They're about power and ambition and the way people's personal narratives are forever altered by elections or fights over legislation or by the larger-than-life leaders that political folks are drawn to. Catch those things on camera, and you catch the essence of what makes politics the be-all and end-all for some."

5. All Politics Is Local: "There are plenty of reasons to say that politics today has become nationalized and much more divisive, partisan, and ideological. But local color sure makes the watching more interesting. Let the average citizens express their opinions (after all, they get to vote, too). And let's have a look at the places where they congregate, because that's where the candidates will have to go to find them."

6. History Is Not Just for the History Channel: "There's a reason that Republicans are winning most Texas elections these days, and those reasons involve a number of past elections since John Tower, in an upset election, managed to claim the Senate seat that had been LBJ's since 1961. Providing a historical context enriches the narrative. Not to mention a great excuse to use older archival footage."

7. You Gotta Sing: "I know that politics is serious business, but this is a movie we're making, so pay attention to the soundtrack. Music is good. Really good music to listen to on this filmic campaign trail is even better. And when it's Texas politics we're covering, why not reach down into our treasure trove of state music?"

8. Hire Good Experts: "Campaigns look for the best hired help. Films on politics ought to get the best on-camera analysts. And Texas is blessed with some of the best political talkers around. If you can interview Karl Rove and Ann Richards in the same film, how can you go wrong?"

9. Keep It Close: "Close, nail-biting elections are the best drama. In Last Man Standing, the race comes down to 333 votes and one last precinct. Who won? Well, come down and see."

10. Make the Stakes Clear: "Some people swear that our elections don't matter and it doesn't make a difference who wins -- isn't this Ralph Nader's worldview? Well, they're wrong, and a good film on politics has to make that point or risk having its potential audience not turn out to the polls. Elections decide who will make the decisions on funding social services, putting up barriers to legalized abortion, figuring out how to fund public education, and a host of other things that certainly do affect all of our lives. And if that's the case, what the stakes are has got to be made clear in your film because then the film's ultimate conclusion really does matter."

How Safe Is Your E-Vote?

It's either the best thing ever to happen to elections, or the stupidest blunder our elected officials have ever made; the savior of our democracy, or a conspiracy to steal it; an idea whose time has come, or a hapless symbol of society's naive faith in technology.

Electronic voting hasn't completely boiled over into the nation's greater consciousness ... yet. But it's on a high simmer. It has staunch defenders, passionate detractors, and one way or another, it will make a huge impact on the 2004 elections.

The push for computerized voting gained momentum after the 2000 presidential election, also known as the biggest electoral fiasco in U.S. history. An appalled nation learned what an imperfect science elections are -- hanging chads, allegations of fraud, and butterfly ballots making Jews vote for Pat Buchanan. Surely, we were told, in our modern computer age, we could do better than this.

In some eyes, computers seemed the obvious answer. No chads. No stray marks. No spoiled ballots (in fact, no paper). No need for human judgment about "voter intent" at all. The result was the 2002 federal Help America Vote Act -- which does not specifically require electronic voting, but does provide funding to help states replace punch-card and lever voting systems. Many jurisdictions all over the nation are choosing "direct recording electronic" systems.

But while election administrators are generally enthralled with the new technology -- and a number of companies are rushing to meet the demand -- others are not embracing DRE voting. And the critics are not just the usual conspiracy theorists. The strongest condemnation is coming from the people who best know the limitations of computerization: computer scientists.

What will electronic voting mean for Travis Co. (and the rest of Texas) and how might our experience compare to the rest of the nation?

Electronic Shadows

Perhaps the best way to understand electronic voting in Travis Co. is to understand what it is not.

It is not Diebold. And it is not ES&S, nor Sequoia. Those three firms are the market leaders in the electronic voting system business, and thus quite naturally have become lightning rods -- especially Diebold -- for the nationwide movement against electronic voting.

Diebold and ES&S (Election Systems & Software) have some conspicuous Republican connections that automatically make yellow dogs go on point. Diebold CEO Walden O'Dell is a Bush "Pioneer" -- collecting at least $100,000 in Bush campaign contributions -- and in a now notorious 2003 quote, he said he was "committed to helping Ohio deliver its electoral votes to the president next year," a statement widely denounced as proof positive that Diebold's machines will be rigged to favor Republicans. In context, O'Dell was clearly referring to fundraising, not vote stealing. But quicker than you can say "conspiracy," the credibility of his company was damaged. As for ES&S, one of its board members (and former CEO) is Nebraska Republican Sen. Chuck Hagel, raising an obvious question of conflict of interest between campaigning for votes and producing the machines that will tally them.

But one good reason to doubt the Republican electronic coup theory of e-voting is that in fact, many of the election officials aggressively pushing for e-voting -- including Travis Co. Clerk Dana DeBeauvoir -- are longtime Democrats.

Many computer experts express much more concrete concerns that the available equipment doesn't offer the security an election requires. Three key studies have focused on these doubts: A group of scientists at Rice and Johns Hopkins universities snagged a copy of a Diebold source code that was inadvertently posted on the Internet and examined it; and the secretaries of state of both Ohio and Maryland commissioned studies that were highly critical of Diebold. All three studies charged that the machines were highly vulnerable to tampering. (Diebold responded that the Rice/Johns Hopkins scientists examined an outdated source code; as for the Maryland study, the company actually claimed that it praised the Diebold AccuVote machines -- a spin that dismayed the study's authors).

Even more troubling are reports of malfunctions, computer or human in origin, that have caused problems in actual elections. Among other things, there have been instances of more votes being registered than were actually cast, voters pressing on one candidate but the machine registering the vote for another, or votes simply vanishing.

So what's the difference in Travis Co.? In brief, Hart InterCivic -- an Austin-based company trying to broaden its market, in part with an apparently more reliable product.

The eSlate Connection

Hart InterCivic morphed out of Hart Graphics, a printing company founded in 1912. In recent years, as the document industry moved increasingly from paper to electronic formats, Hart developed extensive digitized business with governmental agencies. In 1999, the government-related portion of the business spun into the completely separate Hart InterCivic, which is becoming a major national player in the growing DRE machine industry.

Hart's product is called the eSlate -- a small electronic tablet, of sorts, specialized for casting ballots in elections. In the summer of 2002, Travis Co. Clerk Dana DeBeauvoir purchased several hundred eSlates and gave them a successful trial run in the early voting period of the November 2002 elections. The county went whole hog into e-voting in the spring 2003 Austin municipal elections, scrapping its optical scanning system altogether. DeBeauvoir says her choice of eSlate was not simply an attempt to Buy Greater Austin, but that Hart InterCivic's machine has several obvious advantages over its rivals.

Unlike Hart's major competitors, the eSlate does not use a touch screen. "I had trouble with calibration issues on the touch screens," DeBeauvoir says, meaning that the onscreen "buttons" that the voter presses sometimes slip out of alignment with the proper sensors underneath the screen. "Not all of them, but some of them. It's what happened in Dallas [during early voting in the 2002 general election, on ES&S machines]; you end up maybe casting a ballot for the other candidate and don't realize it. They've done some things in the industry to try to improve it since I first looked at it, so in fairness to them, I think they have improved their product, but at the time I was doing the review I found it troubling."

Instead, eSlate uses a wheel-and-button system -- the voter turns a dial until the candidate of choice is highlighted, and then presses a button to select the candidate, never touching the screen. (As in all DRE systems, the voter can correct errors before finally pressing the "cast ballot" button.)

Secondly, eSlate does not use "smart cards," credit-card-sized devices given by the election workers to voters, who plug them into a voter terminal, letting the machine know that the person standing before it is indeed a legitimate voter. The Rice/Johns Hopkins researchers say that it would be terribly easy to "homebrew" such cards, which an attacker could then sneak into the polling place and use to cast multiple votes. The eSlate voters, in contrast, are assigned unique personal identification numbers when they show up at the polling place, which they then enter into the voting machine. The number's validity expires either upon casting the ballot, or, if unused, within a few minutes of its assignment.

Perhaps most important, the eSlate system has no external connections -- no hookups to phone lines, the Internet, or an intranet. While some systems allow results to be sent by modem to a central vote-counting facility, the eSlate is comparatively old-fashioned -- much like an old-style ballot box, the devices ("mediums") into which votes are recorded are removed by the election judges after the polls close and physically transported to the central counting station. Asked if she would ever try to transmit election results over the Internet or modem, DeBeauvoir said, "No way. ... Never."

In fact, trying to find specific criticisms of eSlate or Hart is difficult. Searches of Internet and Nexis databases turn up only minor reports of human error and no major security failures by eSlate. And in her book Black Box Voting: Ballot-Tampering in the 21st Century, Bev Harris -- the nation's most visible nonscientist critic of e-voting -- limited her criticism of Hart to the company's Republican-leaning investors.

Other critics even give Hart qualified praise.

"Those touch screens are just utter crap," says Rebecca Mercuri, a research fellow at Harvard University's John F. Kennedy School of Government and a prominent e-voting critic. "Even the banking industry had gone away from them years ago, because they malfunction so badly. It's a smart move on Hart's part to not use that. Also, for the disabled, I think it's a very nice interface, that sort of wheellike thing."

Dan Wallach, the Rice University scientist who worked on the Diebold study, says, "I think in terms of human factors, accessibility, that sort of thing, the design of the Hart system -- where instead of using the touch screen they use the rotary knob -- I think there are a number of ... benefits to that kind of design; that somebody who's blind uses the same kind of interface as everybody else."

The 'Mercuri Method'

"Of course, it doesn't much matter if everybody uses the same interface if nobody has confidence that their votes are recorded properly," continues Wallach.

While concern about DRE voting has barely coalesced into a movement in Austin, there is a small network of citizens and groups around the region trading e-mails and worries. A new group addressing the issue, called Texas Safe Voting, is a coalition among the ACLU of Texas, Campaigns for People, Common Cause, and the Electronic Frontier Foundation of Austin.

There are two major public objections to all e-voting systems, including eSlate: None provides a printed ballot for voters to confirm their choices or that could be used in case of a recount; and, the groups insist, the hardware, software, and source code should be available for public review. Even DeBeauvoir admits of eSlate, "Could it be more secure? The answer is yes."

"The main point about the Hart InterCivic machine is the same main point that electronic-voting activists and computer security professionals have been making across the board, which is, without a voter-verifiable paper trail, no all-electronic voting system can be considered really secure and reliable," says Adina Levin, director of the Cyber Liberties Project of the ACLU-Texas and chair of the E-Voting Project of the Electronic Frontier Foundation of Austin.

DeBeauvoir is not as concerned about computer error -- she notes that the eSlate has triple-redundancy storage mediums than can be cross-checked, real-time audit logs, and can recall an image of each ballot that has been cast (although it cannot match the ballot with the person who cast it).

That's not enough, responds Levin. "If I choose on my touch screen or Hart selector, and something goes wrong between the thing that I choose and the thing that gets written electronically, even if it gets written in three different places, or 10 different places, or a hundred different places, it's still different from what I selected. And if I don't have an independent way of recording what I [saw on the computer screen] and going back to check, there's no way of knowing. You're never, ever gonna know."

The paper system proposal is simple enough: After a ballot is cast electronically, a paper copy would be printed and verified by the voter; if a voter says the printed vote does not match what he or she selected, the vote can be nullified and recast, and possibly the machine checked for malfunction. (A bill before Congress would mandate such a "voter-verified" system, and California Secretary of State Kevin Shelley has ordered that all election systems in his state have one by 2006.)

DeBeauvoir has her doubts. She wonders how such a system could accommodate those who are vision-impaired -- a driving force behind the e-voting push is compliance with the Americans With Disabilities Act, and e-voting systems provide headphone audio that allows blind people to vote without assistance. She also expresses concern over the mechanics of such a process: Could a voter walk out with the paper ballot? Does the voter get his/her own copy (raising the fear of vote buying)? Is the paper ballot printed before or after the "cast ballot" button is pressed?

Mercuri says she has an answer for all those questions; a system she devised that her colleagues have dubbed the "Mercuri method."

"There's a script, and all of the election officials have these negative points. I've heard them before, I've heard her say them," says Mercuri. "I've explained this to her [Mercuri and DeBeauvoir both serve on the Elections Security Subcommittee of the Institute of Electrical and Electronic Engineers], and she's heard me explain this on at least two occasions, so the fact that she's still saying that is amazing.

"That's ridiculous. Nobody ever says that when we're talking about, you know, like an optical scan ballot: 'Oh, the people are going to leave the polling place with the ballot.' First of all, if a person leaves with it, then they didn't vote. If you're going to go to that type of system, people need to understand that. Now, if you go to my article called A Better Ballot Box, you'll see a picture that shows how it could work. ... The person never touches the piece of paper. ... When they see the vote on the screen and they're ready to vote, they say OK, print the paper. It prints it out behind a piece of Plexiglas; they see paper behind the piece of Plexiglas; if they agree that it's OK, they press the button and it drops in the box. So how can they walk out with it?"

As for the disability issue, Mercuri says that visually impaired or even illiterate voters could use voice-feedback scanners to read the paper ballot.

In any case, DeBeauvoir cannot implement a paper-trail system -- any changes to voting machines or balloting procedures must first be approved by the Texas secretary of state, and then by the Travis Co. Commissioners Court -- so voters will have to settle for another paperless election. DeBeauvoir insists that she is not necessarily opposed to a printed ballot system. "I'm willing to do it," she says, "if [Travis Co. citizens] decide it's the right thing to do." She said she wasn't sure how much it would cost to retrofit Travis Co.'s 1,800 eSlate machines -- which are not currently designed to hook up to a printer -- but "a ballpark estimate would be a million dollars."

Hart InterCivic vice president William Stotesbery told a recent Austin forum on e-voting that the industry sees the writing on the wall on paper ballots and will move in that direction anyway. But he also told the Chronicle that in addition to the cost, "What worries me about paper is introducing a false sense of security. There was election rigging with paper ballots, too."

Going to the Source

Paper ballots aside, voting machine companies are much less likely to share their source codes. (Source codes, often copyrighted, are the digitized instructions programmers use to define and operate a particular type of software.) At the moment, they flat-out refuse to do it, arguing that secrecy protects both their proprietary secrets and election security.

Wallach disagrees. "Open source is not a panacea for security problems, although it's often a good thing," he told the same e-voting forum that Stotesbery addressed. "Open source means that you have the opportunity for people who care to go have a look. Diebold accidentally opened their source, and we found a number of problems, and as a direct result of that, other people have been hired to go have a look. Open source doesn't necessarily imply that you're giving a source code away for free; it doesn't mean that you're giving your intellectual property for the whole world to use.

"An argument that's often made as to why you shouldn't give source code away is that if the bad guy can see the source code, that gives the bad guy an advantage, so we should prevent that. These arguments are typically referred to as 'security through obscurity,' and it just doesn't work, and it never has, and it never will. The bad guy will always know how it works, because one of those machines will fall off the back of a truck. It's just a matter of time. Then the bad guy can tear it apart. Or the bad guy can go Dumpster diving and find a burned CD with a copy of your source code somebody made as a backup, or the bad guy can get somebody employed at your firm, perhaps as a janitor, perhaps as a programmer, and walk away with your source code. So as long as that's part of your threat model, and I think that's a reasonable threat model for an election, you can't build your security around the obscurity, so you should build it around something else."

Wallach explained further: "An ATM is secure despite the fact that bad guys know exactly how it works. A voting system should work despite the bad guy knowing."

Stotesbery responds, "Frankly, we think that security and protection of the code does increase the security of it, and we have a difference of opinion on that. ... Our customers feel more comfortable with it not being open in most cases, [and] we feel more comfortable with it." Stotesbery also says that the code actually isn't completely secret, as it is submitted to governmental agencies for certification, under the condition that it is not made public; and he insists that copyright and patent law alone are insufficient to protect trade secrets.

The Ohio secretary of state report, completed in November of last year, raised additional concerns: Hart does not use encryption to protect election data sent from the eSlate machine to the election judge's controller booth; supervisory functions in the booth (including the button to close the polls) do not have a mandatory password; and the machines are all connected to the booth through a "daisy chain" of cables that an unauthorized person could easily reach and accidentally or intentionally unplug, disrupting the election.

While the report labeled these as "high risk" problems, DeBeauvoir and Stotesbery disagree - Travis Co. already requires a password, she said, and Hart plans to redesign the eSlate to make passwords mandatory; Hart plans to incorporate encryption, and in any case, the data only travels a few feet from the voting booth to the judge's booth. Finally, should the daisy chain be unplugged, DeBeauvoir says, no data would be lost and the machines could be reconnected and rebooted in a few minutes. (Hart fared better in the Ohio study than any of its competitors, which had more risk areas identified, including the possibility of outside parties getting access to a DRE system and altering the data within it.)

Cross Your Fingers

One of the charges in the Rice/Johns Hopkins study was that "many government entities have adopted paperless DRE systems without appearing to have critically questioned the security claims made by the vendors." DeBeauvoir wants to reassure Travis Co. voters that that doesn't apply here. Indeed, DeBeauvoir convened a diverse task force to help her analyze the vendors that sought Travis Co.'s business, a group including experts in computer security, programming, legal issues, and conducting elections.

The first task was to design theoretically the type of system that Travis Co. needed: "We knew we wanted certain things for our protection. We knew we wanted to have the exclusive control over the setting up of each ballot. ... We did not want the vendor to do that." They wanted to be able to produce a paper copy of each ballot (for later recall, not to be confused with Mercuri-style immediate printing), different kinds of audits, and equipment that couldn't be easily broken into, especially nothing that could be accessed with a keyboard. (Some other systems, including Diebold, are keyboard-accessible.)

"They also helped me design, for the second round, the series of questions that we would ask these vendors. And what they suggested and what we ultimately did was, [have the vendors] teach you how to do the system ... and then send them away. My people had to be responsible for being able to operate the system themselves. And I will tell you, we tried to break every system they gave us. I wanted to break into it, tamper with it, I wanted to see if I could do anything. We did lots of, sort of, call it dirty tricks. We tried to mess it up. Not all of our systems that we evaluated for purchase passed those tests. There were some gaps in security in a couple of the systems." DeBeauvoir didn't want to name the specific vendors for legal reasons, "but there were a couple of vendors we wouldn't consider buying." She says she reviewed all the DRE systems that have been certified in Texas, including the Hart eSlate, Diebold's AccuVote, ES&S's iVotronic, and Unilect's Patriot.

She also required that the systems allow her to do manual logic and accuracy testing. "Now that's outside the scope of law, but to me what that says is, you're not relying on the machine to check itself." Her election workers manually enter every bit of data for every ballot for each different precinct. "That's one of the things that the computer security person recommended to me that I do. And to tell you the truth, I kind of balked at it at first, because [I said], 'Ugh, do you know what it's going to take to do that? Are you crazy? These systems can check themselves.' But I'm glad he did it, because what we found was, it was a better way to confirm that every piece of equipment worked and that every ballot was correct."

None of the above means that Travis Co. voters can truly rest easy. While we may be using one of the best-designed DRE systems available, other jurisdictions in Texas and around the nation have chosen the bigger market leaders, either unconcerned by or unaware of security questions. It's easy to imagine a train wreck heading for us that will make election 2000 look like a speed bump. If we're lucky, it will vaporize like the Y2K scare. All DeBeauvoir can do is take care of Travis Co., and she says she's trying her best. She says some of the e-voting critics "can be antagonistic," and "I don't agree with all of the assumptions [they] make, but it's important to listen. If nothing else, if we end up doing nothing more than appeasing a worry that is a little dubious and perhaps way out there on the risk scale; if we end up taking steps that appease them and their concern, then all we've done is make more people more comfortable.

"I have to serve as an advocate for voters," DeBeauvoir says. "If we've got some people out there who are less than confident, then they've got every right to ask the question and get an answer, and if they're still not confident, then we keep that conversation going. It's not up to me to say, 'Oh that's just not a real problem,' or 'It's just silliness,' or 'You're not educated enough.' That's not my role. My role is to keep answering."

You can bet they'll keep asking.

Lee Nichols is assistant news editor of the Austin Chronicle.

Upping the Anime

At 40, and with just three feature films under his belt, Japanese animator Satoshi Kon is being hailed as the next big thing in animé, a possible successor to reigning pond jumper and Disney favorite Hayao Miyazaki ("Princess Mononoke"), and, more importantly, an artist worthy of serious critical attention in a Western arena that for the most part continues to define Japanese animated films in juvenile terms. This despite DreamWorks picking up the director's second feature -- the elegiac "Millennium Actress" -- for stateside distribution on the basis of its adult themes.

Kon began his career doing journeyman animation work for various companies before directing his first feature, "Perfect Blue," in 1997. A gritty tale of a Japanese teen pop idol who, on the eve of her retirement from the stage and entry into acting, finds herself stalked by an obsessive fan. The film worked not only as a creepy, surrealistic thriller, but also as a wry commentary on the whole J-pop phenomenon and the cloying nature of celebrity. It was, to put it bluntly, as if someone had injected animé with a sudden dose of reality -- the absence of scary monsters and super freaks caught everyone but longtime animé fans (who have appreciated for ages its genre's boundary-jumping mutability) by surprise. The film was something of a minor hit, playing American arthouses and making a splash on DVD.

"Millennium Actress" took both Kon's storytelling and his media themes to new heights with a wildly ambitious tale of an aging actress recalling her life in Japanese film. Playing fast and loose with the notion of linear narratives, the film jumped from fantasy to reality and back again, and garnered raves not only for Kon's impressively dense story, but also for his nuanced animation, which perfectly complemented the film's time-tripping backstory.

And now there's Kon's "Tokyo Godfathers," the story of three homeless people who discover an abandoned baby in a trash heap one Christmas Eve and strike out, with babe in tow, in search of the parents. Remarkably detailed in its depiction of Tokyo's gray back alleys (at one point a glowing, crimson Tokyo Tower arises from the blanketing snow like some weirdly beautiful industrial marker denoting the beginning of civilization) and involving themes of family, abandonment, and the city's little-discussed homeless issue, "Tokyo Godfathers" feels less like animé and more like a live-action feature that somehow got transposed onto a toonscape.

"I do not wish to make live-action feature films at all," said Kon via e-mail. "But it's great to hear that viewers in the Western world are accepting my films. Through drawing, however, I am able to express all my thoughts and ideas clearly and in detail."

Inspired, in part, by John Ford's Western "3 Godfathers," Kon's film is a dialogue-heavy mix of social commentary -- one of the homeless is an intensely maternal transvestite, one an alcoholic ex-family man and bicycle racer, and one a runaway girl -- that gives audiences the anti-"Lost in Translation." The Park Hyatt Tokyo hotel of Sofia Coppola's film is like the myth of wealth to Kon's characters, although the ties that bind the trio of protagonists together here seem infinitely more traditional than those forged by Bill Murray and Scarlett Johansson.

"It is true that I was inspired by 1948's "3 Godfathers" starring John Wayne, and I also took the title from that film as well," says Kon, "but at the same time, I noticed the increased number of homeless people in Tokyo, and that was the reason I wanted to focus on them this time as the main characters. As I am an animation writer/creator, I wanted to send my message to viewers throughout this feature, to make them feel relieved from their troubles, worries, and discontentment from everyday life by using the "homeless" characters who are a socially disadvantaged people that are living their lives vitally and lively with warm and kind hearts."

And as for the film's unerring sense of reality, Kon credits less a youth spent immersed in Western films ("Of course I watched them, but I cannot tell you which") than in the vagaries of daily existence: "My influences in filmmaking/writing are based on my own experiences, thoughts, and ideas that came across in my head from everyday life, such as the issue of 'family,' which is a universal theme and runs throughout this film."

Kon's next project should be something of a break from that reality. "'Mousou Dairinin' is a psycho-thriller animated TV series, a field I have always wanted to try," he says, sounding suspiciously like he is returning to "Perfect Blue" territory. Either way, Studio Ghibli's Hayao Miyazaki can rest assured the dapper Kon isn't likely to be appropriating his cuddly forest spirits anytime soon. Truth may be stranger than fiction, but it's also taken considerably more seriously, a fact Kon clearly appreciates.

Marc Savlov is a staff writer for the Austin Chronicle.

Pot Reformers Up the Ante

Despite the disappointing failure of last November's various drug-reform ballot measures, reformers have upped the ante and now have medical-marijuana, decriminalization, or industrial-hemp legislation pending in 13 states. In an e-mail addressed to supporters of the National Organization for the Reform of Marijuana Laws, NORML director and founder Keith Stroup says the current legislative season has been the biggest for drug reformers since the 1970s.

Currently, decriminalization bills are pending in Connecticut, Oklahoma, and California -- where the penalty for possession of up to one ounce would be reduced from a misdemeanor to an "infraction," akin to a traffic ticket. Legislators in Massachusetts, Connecticut, Vermont, Montana, Maryland, Arkansas, Wyoming, and New York are all considering medical-marijuana bills. In Maine, a proposal that would legalize the cultivation of industrial-grade hemp is making its way through the legislative process. So far this year NORML has only noted one legislative failure; on March 7, the New Mexico Legislature defeated a medical-marijuana bill by a floor vote of 46 to 20.

In Texas, Rep. Harold Dutton, D-Houston, has filed the state's lone drug reform bill of the session, HB 715, which would decriminalize possession of up to one ounce of pot. The bill would make such possession a Class C misdemeanor (punishable by up to a $500 fine) and would forbid the state from suspending the license of anyone convicted of the charge. Howard Wooldridge, a former Michigan cop turned lobbyist for Texas NORML, said he is optimistic about the bill's passage. Currently, Texas NORML is courting the favor of House Criminal Jurisprudence Committee Chairman Terry Keel, R-Austin, a lawyer and former Travis Co. sheriff.

Wooldridge says that so far, his work at the legislature has been aimed at education. While cops are out harassing drivers, looking for small amounts of marijuana, he said, "drunk drivers are speeding by and killing people." So far, he said, the legislators he has talked to have been receptive to this train of thought. And if they fear that some constituent will label them as "soft on crime," he points them to a recent Time magazine poll that shows 70% of the population supports decriminalization for up to an ounce of pot. "I am trying to give these people some backbone to do the right thing," he said. "Win, lose, or draw, this will be worth it."

19 out of 24 Victories for Drug Policy Reform

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Being John Cusack

CusackJohn Cusack may not be the greatest actor of his generation, but he is probably its most likable. Fifty films in two decades, not an Oscar nod between them, but people don't just like John Cusack, they want to be his best friend.

We spy ourselves in the characters he plays -- sarcastic, cerebral, flawed. The record shop owner who can't commit to anything but pop music. The playwright grappling with his own mediocrity. A guy so down on his luck that even his suicide attempts fail.

I'm a Lloyd Dobler woman myself -- even though that character, penned by Cameron Crowe for his debut film "Say Anything," was so perfect and heartbreaking that it forever skewed the romantic expectations of a generation of women. But Lloyd Dobler was more than a new kind of Romeo, he was a new kind of folk hero, a high school student with no convictions but true love, certain only of his uncertainty. "I'm looking for a dare-to-be-great situation," Lloyd Dobler famously said. Who couldn't sympathize with that? Cusack has branched out, of course -- brilliantly kicking off his sweetheart image by playing a hit man in "Grosse Pointe Blank" (which he co-wrote and -produced) and a shockingly unappealing puppeteer in Spike Jonze's "Being John Malkovich."

But no matter how he morphs as an actor, it's hard not to think of him as Cusack, our Cusack, whomever that particular Cusack may be.

So which John Cusack is John Cusack most like?

"You've said that the character you most resemble is Lloyd Dobler," I begin.

He interrupts. "Did I say that?"

"Years ago."

"Maybe the better parts of me. But I don't know."

Fortunately, for all of us, there is a solution. "Have you taken the John Cusack Test?"

"What's that?" he asks.

"It's a multiple choice test." (From the Web site: "Ever wonder which John Cusack character you're most like? Well, wonder no more!") "I took it, and it says I'm like Gib from The Sure Thing."

"Are you?" he asks.

"Maybe." Not really. "It isn't exactly scientific."

"I wonder which one I'd be like. Wow. I've never even taken my own test."

Surprisingly, John Cusack thinks he might most resemble his latest character, Max. "Somewhere between Lloyd Dobler and Max is probably the closest to me," he says. And it's a different, darker Cusack than the one to which we are accustomed. Max is a man plagued by shades of gray, a sophisticated Jewish art dealer in 1918 Munich, haunted by the war that took his right arm and, with it, his future as a painter. He's an unfaithful husband, torn between the bohemian life that fires his imagination (represented by his mistress, played by Leelee Sobieski) and the wife who anchors him (the luminous Molly Parker). But we sense Max is a decent man. In one of the film's most tender moments, Max tucks his children into bed. Cusack looks as we have never seen him before -- lines etched around the mouth, love burning in his eyes, his hand stroking his son's head. Paternal.

"You've done so many movies, and I can't remember ever seeing you play a father before," I tell him.

"I did in a movie called Pushing Tin."

I admit I didn't see it.

"It wasn't very good," he says.

But the most shocking part of "Max" -- the part that kickstarted a controversy before the film opened and threatens to eclipse it still -- is its secondary character, one young and despicable Adolf Hitler (played by Noah Taylor). Hitler is an aspiring painter, but a mediocre one, who clings to quaint artistic notions at a time when the traditions are imploding -- the age of Surrealism, Dadaism. But, like Max, he is a war veteran, and the two strike an unlikely accord.

"They're both drunk on art," Cusack says. "Max believes that all art is going to have a political consciousness because his father's gods all led them to the slaughterhouse of World War I. He knows that Hitler feels that, too, but I think he feels that Hitler represents the kind of regression energy that led him to the war in the first place. So here's this guy, who obviously believes that art is about ideas and ideas are power, and Max says, all right, come on up to the higher ground, because didn't we just see horses and gas masks six months ago? Didn't we just see 60,000 people slaughtered in 20 minutes for the first time in history?"

"Max" is the debut of Dutch filmmaker Menno Meyjes ("The Color Purple" screenwriter), and it is an audacious one, a lushly captured period drama that is a challenge not only in its discussions of politics, art, and power, but in its attempt to cast the 20th century's most vilified figure in a human light.

"That's not a truth we would like to face, that Hitler is one of us," says Cusack. "But that person tapped into parts of our unconscious. I mean, people followed him, and unfortunately, that's not up to debate. Unfortunately the guy wasn't a monster that came down from Pluto with pink vapors and lightning bolts and then left in a cloud of dust, he was a human being. And he has human characteristics and human sets of desires that we can relate to just like we can relate to some of the higher aspects of his character."

The mere suggestion of "a human Hitler" was enough to set off a contagion of knee jerks prior to the film's release, including a campaign by the Jewish Anti-Defamation League calling the film "a psychic assault on Holocaust survivors and the entire Jewish community." (They eventually apologized.)

Cusack, notoriously press-shy, rushed to the film's defense, cannonballing into the interview circuit and telling anyone he could that Max was a "deeply moral" film, its depiction of Hitler relevant to today's debate about Osama bin Laden and the nature of evil. "I just don't think it's morally responsible to look at evil in a superficial way," he says. "Actually, I think it's destructive."

He is not only the film's star but also its producer, who took no salary for his role. This is, perhaps then, Cusack's own dare-to-be-great situation. For years, we have known Cusack as an outspoken liberal with aspirations of art, an actor of intelligence and wit who took films that reflected his skepticism of celebrity (Tapeheads, The Player) and conservatism (Bob Roberts, The Cradle Will Rock). Max may be the fullest expression of these political and artistic urges, a film that rattles our notions of Hitler at the same time that it offers a portrait no one has dared to depict. But the risk is great: Can we believe John Cusack would befriend Hitler? Can we believe John Cusack when he says, clapping his hand on the back of a man who will unleash unspeakable horror in the world, "C'mon, Hitler, I'll buy you a lemonade"?

"That line is kind of this litmus test for people who understand the film and people who don't understand the film," says Cusack. "There are people who can admit that the line makes them uncomfortable, but they understand that within that discomfort is part of what makes the film interesting. We think this guy, Hitler, he's not human. This is Grendel. He lives in a cave and drinks blood. He doesn't drink coffee or lemonade. He doesn't want to meet girls. Unfortunately, he did. He was a human."

Toward the end of the film, Hitler seizes upon the equation that will fuel his evil genius: Art plus politics equals power. After a scene in which he crumbles at his own artistic impotence, he rallies back, ranting and spewing to a roomful of brutish Germans, pumping their fists as they yell "blood Jew."

"The one original idea Hitler had was that art and politics would forever be fused together," says Cusack, "and whoever controls images and symbols and the aesthetics of art has power in the modern world. And right now, somewhere on the al Jazeera network, there's somebody screaming 'blood Jew.'"

As portrayed by the Australian Taylor (perhaps best known as the younger David Helfgott in the 1996 movie Shine), Hitler is a peevish, beaten dog of a man, not yet devoured by insanity, but clearly on his way. The experience was reportedly grueling for the actor, who lost weight and touch with reality playing what must be one of the most challenging character roles of all time.

"We would try to talk a little afterward," Cusack remembers, "and he would say, 'Look mate, if I seem a little distant during this process ...' I said, 'Noah, please. We'll talk when the movie's over.' I mean, I wouldn't have had the guts to do that."

But Cusack's portrayal of Max is plenty brave, too. Here is his generation's most likable actor playing not an irony-prone charmer or a cartoonish loser, but a deeply divided man, struggling to find balance, grasping to find the best in himself and others. It's a John Cusack character who isn't so immediately like us. Or maybe, perhaps, he is.

Watching While Latina

kingpinThis is one of those areas where I just can't win. Conservative Latinos will complain if I don't criticize the lack of positive Latino role models on TV, while the "We Are the World" troops will say, "Why do you have to make being Latina in the forefront?"

My African American best friend will say I didn't say enough about how come a brother was with a white woman, while my writer friends will wonder if I caught all the influences from "Macbeth," "The Godfather," "The Sopranos" and a certain former First Lady who's now a state senator. Some old activist college friends wonder why I bother to watch TV at all, while my mother still marvels that I watch TV in order to write this column, and that someone pays me for it. Such is the so-called burden, watching TV while Latina, sitting down to review "Kingpin."

The new drama premiered on NBC Feb. 2 for a short, six-episode run. It has been widely described as network television's answer to "The Sopranos," while others worry that its subject matter -- Mexican American drug lords -- will offend U.S. Latinos, a market Hollywood has a deep interest in courting.

I don't think there's anything to worry about. "Kingpin" has something to offend or amuse everybody. For those drawn to the seedy underworld of narcocorridos and other pulpy accounts of the drug trade, there's Ernesto, the half-cocked heir apparent to the family business hilariously played by Jacob Vargas. Alas, his reign is brief, though if previews are any hint, Danny Trejo ("Spy Kids") may take up that torch in future episodes.

For those seeking bread and butter family values, there's central character Miguel Cadena's (Yancey Arias) loving relationship with his young son Joey (Ruben Carbajal), and brother Chato (Bobby Cannavale). For those who like their antihero's guilt played over-easy, there's Miguel's visits to the church. After a successful drug run, Miguel dutifully brings his tithe to the church and talks with the priest, who, like Carmella and Dr. Melfi on "The Sopranos" knows just as much as he wants to know about Miguel's business, which is not enough to make him refuse the money.

Perhaps the most interesting relationship in "Kingpin" is that of Miguel and his wife Marlene (Sheryl Lee Diamond). Unlike Diane Keaton's Kay Adams in "The Godfather," Marlene is a lawyer working for the family and Miguel's wife and confidante, with her talons deeply set into the business. She's also a white woman and ultimately an outsider. She's an outsider in her marriage, too. When she and Miguel successfully orchestrate Ernesto and family patriarch Tio Jorge's assassination, she wants to celebrate. Instead of being turned on by her slinky come-on, Miguel pushes her away: "This is nothing to be happy about." Marlene turns to cocaine to soften her husband's rebuff while Miguel spends a quiet evening with his son.

In Miguel and Marlene's relationship, there is great potential to show how race, power and imperialism interplay on a larger level. Besides her son with Miguel, what does Marlene have to lose? More importantly, what does she have to gain? If her marriage dries into a business-only interaction, will she ever successfully overtake the family operation? It's doubtful these questions will be answered in the series' compact six-episode run. However, if the show can examine the previously mentioned power dynamics, then it will be a success in my opinion.

Still, I can't help but be disappointed that when given the opportunity at producing a Latino-themed drama of this scope, it has to be set against the backdrop of drugs and corruption. Why couldn't Miguel be Mr. Cadena, like "Mr. Sterling," that other NBC series set against the intrigue of state politics? Politics may be no less seedy, but at least it's less sensational. For an answer to this, I turn to the Chicano cartoonist and rabble-rouser Lalo Lopez. When he is criticized for "making fun" of Mexicans and Latinos in his scathingly funny work, his response is that Latinos are hypersensitive to pop cultural images of themselves because there are so few to choose from. If Homer Simpson were one of a handful of white male images offered, would he be as acceptable?

Some readers will complain that I've sold out. Others will lament that their "Mexican friend" likes the show, so why don't I? In the end, what I really want is more. More Latino names and faces in front of and behind the camera. "Kingpin" is a laudable effort. But it shouldn't be the only one to get the coveted Hollywood greenlight.

Belinda Acosta writes about TV and popular culture for the Austin Chronicle in Austin, Texas.

True Crime and Punishment

Vanessa Leggett and I were supposed to talk on a recent Sunday night about her five and a half months in federal jail. She had refused to reveal her confidential sources in a federal murder investigation against former River Oaks bookie Robert Angleton, accused of ordering the death of his socialite wife. Vanessa's incarceration drew international attention as she snatched the record for the longest contempt of court imprisonment of a journalist in United States history.

In early June 2001, Vanessa and I had had lunch in Houston as I begged her to help me with some research on a true-crime book I was working on about the case of Andrea Yates, who was soon to go on trial for murdering her five children. Vanessa gave me a few tips, then spoke of how she hadn't eaten or slept in days, only cried, as she feared she was going to be jailed for refusing to cooperate with the grand jury, despite having previously helped the federal investigators. I said, "Oh, Vanessa, don't worry. They're only bluffing."

On June 20, she was locked away.

Six and a half months later, she phoned me at 7:07pm and said, "I got stuck in the grocery store. Can you call me at 7:30?" Vanessa's life would seem to be back to normal, except for the fact that when she was freed, a spokeswoman for the U.S. attorney's office refused to comment on whether the government planned to convene another grand jury or ask her for her notes again. In either case, Vanessa could be returned to jail if she doesn't cough up what she knows. She expects to be subpoenaed by the prosecution to testify against Robert Angleton in his federal murder trial. Last week, she signed with Suzanne Gluck, a literary agent with the William Morris Agency.

You were at the grocery store a while ago. Is your life back to normal?

Yes, it is, for the most part. You know, I was in the coffee section and I saw a mural at Central Market that was written on the wall that I remember seeing in July of last year, which was the last time I went to Central Market. It was a quote from Nancy Reagan that said, "Women are like teabags. You never know how strong they are until you put them in hot water." I remember seeing that last summer right before all this happened, and seeing it again tonight was kind of strange.

What'd you have to eat while you were in jail?

Oh, gosh, um, jail food. It's varied day to day but it was a tray with an entrée with some meat or pasta, lots of pasta, lots of spaghetti, lots of carbohydrates and sodium.

The reason I ask is because all the people I talk to tell me how horrible the food is.

Well, the federal food is better than the county food. With the federal food, at least the things that are on your tray that are supposed to be warm are warm. And the other things that are supposed to be chilled are chilled. Whereas in the county, it's my understanding that you can have hot Jell-O and cold steak.

So what was the worst thing about the five and a half months?

Just the absence of freedom, virtually no movement, just you will be restricted to an institution. If anyone has ever stayed in a hospital for any length of time, especially as a patient, it's a feeling of helplessness and hopelessness. And every day is like the day before. The greatest loss I thought was just the loss of freedom.

What did you read?

I read just about everything. I read a lot of crime fiction. I read books on writing. I read one book that was recommended to me by one of Roger Angleton's former employers that was very interesting.

What was that?

It's called What "Makes Sammy Run?" This man was Roger Angleton's first boss up in New Jersey years ago ... and this man that I interviewed suggested that book because he said the man in the book reminded him of Roger Angleton ... and if I read the book I would understand how Roger was as a young man.

So in essence, you were still doing research in there?

Oh, yeah. And I was doing a lot of research in my head, just thinking about my book, and just thinking about the story. Just letting ideas ricochet in my mind.

Did you ever feel afraid?

Yes, I did. Not in the sense that most people would identify fear in a prison way. I did not really fear for my life while I was there, but I feared some of the people around me. And not necessarily inmates.

The guards?

Yeah. [And she becomes silent.]

What did you fear about them?

Not that they would physically harm me, but I guess it was not so much fear but lack of trust. You know, they would try to ingratiate themselves with you, and that, uh, just wasn't something I welcomed.

Who was the most interesting person you met?

Frankly, no one was that interesting. They all had a story, like all of us, but I wouldn't say that any of them was particularly fascinating.

What got you to writing?

When I was in graduate school, and a murder took place in Houston that I was interested in -- some professor I had encouraged me to write -- and I just thought, why not? Why couldn't I write a book about this crime?

What do you think makes a writer?

Someone who writes. And someone who -- I think anyone who writes creatively is certainly a writer. You know, technical writers are writers too, but when I think of writer I think of a creative writer.

What makes a journalist?

No one has been able to come up with a definition. I hear it's going to be something like the definition of pornography -- you'll know it when you see it. I really like the definition -- actually the one that I think it was Michael Ventura in his open letter to me: a journalist is someone who keeps a record of the day (www.austinchronicle.com/issues/dispatch/2001-08-31/cols_ventura.html). And my definition is, I guess, anyone who tries to disseminate information to the public. That definition is difficult. I guess the only thing that I'm certain about is that I don't want the government to define who a journalist is.

Speaking of that, the court administrators who doled out the credentials for the Andrea Yates trial said they had problems with freelancers covering the trial. And they told my attorneys that freelancers are not legit media. Can you comment on that?

I think it's ridiculous. I think freelancers should have just as much of a right to the information as anyone else. And I don't think they necessarily need a track record to claim that right. I think it was Matt Drudge, who is the cyber-gossip out there who has the Drudge Report, and I believe that he broke the Lewinsky story, which was a major watershed story. And I don't think he had published anything before he created his own Web site. Yet, he had a means to get the information to people quickly.

I mentioned in a prior interview something about the Northwestern journalism students who had found 13 people on death row in Illinois that had been wrongfully convicted and were exonerated. And those were just journalism students who didn't have any publishing credits.

Can you imagine if the government had issued a kitchen sink subpoena to those journalism students like they did to me, for any and all records of those students' findings, do you think those people would be on death row still? I do.

Speaking of that, the kitchen sink subpoena, when do you think a journalist or a writer should turn over his or her notes to law enforcement, prosecutors, judges, even defense attorneys?

I think that journalists should try to preserve as much as possible their sources and their work product. However, here's the deal: It gets down to competing interests that the public has. The public has an interest in free speech and free press, definitely. The public has an equal interest in effective law enforcement. There should be a balancing of these interests. And if the government can show that they're not able to get this information from another source, and it is material to their investigation, and they are specific in what information they are seeking, then I think in some cases journalists would have to give up that information.

Going back to the jail thing, what would you say got you through it? How did you survive it? Was it an inner core?

Yeah, I think it was. I think it was just believing that I was doing the right thing, and those letters that people wrote really helped me enforce that. I knew I wasn't really in there alone. I knew that there were a lot of people behind me, and that really helped get me through it -- because it wasn't just about me. It wasn't just about my work product. It was about the First Amendment and the public's right to a free press. And knowing that it was worth something much greater than my own liberty, made it easier for me to endure the time there.

If another writer is faced with jail, what would you advise them?

I have plenty of advice for before going to jail.

Okay, what's the advice for before going to jail, tell me please.

Well, for freelancers, who I think arguably -- because of what's happened to me, and certainly a negative precedent being set, the future may not look very bright for freelancers -- I think that freelancers need to establish their intent to disseminate their information to the public, to build some sort of record that that is what they're trying to do. They can either get it to the public, because that's the best proof, or can lay the groundwork where you can demonstrate to the court that you were intending to get this information to the public.

Suzy Spencer is the author of, most recently, "Breaking Point," a true-crime book about the Andrea Yates case.

Reflections On Turning 52

Age. For most of human history, to be old has been a mark of honor. Today it's a source of fear, even shame. Yet my 50th birthday was strangely joyous. It began as my days usually begin: I walked to the corner cafe, drank my coffee, read my New York Times, watched the world go by for a while. (Tough life, right?) Usually, after this languid beginning, I do what writers call "work," off and on all day and way into the night (when these columns get written).

A writer's work is a kind of restless hunting, tracking a strange beast in the jungle of oneself. In my case, this looks like hours of pacing up and down, smoking lots of cigarettes, and drinking many cups of strong tea while staring out the window. (When the beast is finally found, the writer-hunter must then refrain from killing it; rather, you get very still and let the creature devour you.) But on my 50th birthday I gave myself the day off (very tough life), and walked.

And walked, and walked, and set myself the walking-task of remembering every birthday as far back as I could. I focused until I could recall at least one specific thing about each: a friend, a song, something said or left unsaid. The quiet girl who sat at the next desk in fifth grade. The fight with Ginger on the way to a Springsteen concert. Roy Orbison singing "The Eyes of Texas" at Soap Creek. Alone in the Mojave reading the poems of Seferis. Chris in a witch's wig. Mama pretending she wasn't ill when the heat got shut off on Decatur Street. Mama, when I was 7 screaming "Your birthday is a day like any other!" Our Senior Class Halloween party for the kids, and a dark-eyed, scared-eyed tiny girl, and how she came straight up to me and took my hand and wouldn't let it go for the whole party.

Once a specific bit of memory was retrieved, it became easier to see who I was that year. In this way I met long-gone Michaels I'd forgotten -- it was painful how many, and why I'd needed to forget them. I was embarrassed by some, ashamed of some, some I even feared; but some were still my pals, and of three or four I was very proud. "That 13-year-old Michael saved my life, and how did he know to do it, what did he have to go on? I like that kid." That kind of thing. I wouldn't have imagined it possible, but through searching for something specific about each day, I "saw" something of every birthday all the way back to age five. My life walked beside me, a gang of Michaels, many of them strangers to each other, but walking together, for this one day, with a grateful feeling of companionship.

When I told this to a friend she said I was forgiving myself, but I don't think so. I don't think we have the right to forgive ourselves. Forgiveness is for those we've sinned against, if they find it in their hearts, and perhaps for God, if God is interested. Rather, that walk was a look into my own eyes -- the eyes of the many I'd been and am. I suspect that looking into your own eyes, or another's, is a tougher task than forgiving. Looking, seeing, and living with -- or choosing to live without -- what you see.

When that walk was over, I recalled something my brother Aldo said to me: "Unless you practice seeing yourself you become invisible to yourself." I felt less invisible to myself that day. Lighter and darker, both. It was a good way to walk past my half-century mark.

But... well, sometimes you try to see yourself and you see something else, something you didn't expect at all. It is you and not-you -- or perhaps a you that has always been waiting within. This was the lesson (learned not for the first time, and probably not the last) of my most recent birthday, my 52nd.

On this day, too, I planned nothing. I've learned to leave birthdays planless, or almost so, letting the day unfold on its own. For a birthday is a teaching day, it has something to reveal. Too many plans constrict its ability to speak. Left to itself any day will, at some unexpected moment, find its voice, give its message. This is especially true of birthdays. For, as Thomas Hardy once observed, your birthday exists in relation to another day, a day which it is not possible to know: We pass silently, every year, over the day that will mark the anniversary of our death.

At 40 you may have half your life in front of you; at 52, it's not likely. At 30 you have maybe 35 years before serious deterioration sets in. At 52, you don't. In your thirties you may worry about losing your looks; in your fifties you worry about losing your capacities. Ten years left of reasonably adequate strength? Less? Fifteen, maybe? If your bad habits don't get you first?

Every age has its wisdom (youth knows truths that most of the middle-aged can no longer bear), but one difference between being young and no-longer-young is: The young don't know they are going to die, not really; the no-longer-young know. We know, consciously or not, that one unknown day of the year is the anniversary (the counting-backwards anniversary, if you like) of our death. So we walk more softly through our days, or more bitterly, or even more recklessly, depending on our natures; but our walk does alter, because, as James Baldwin wrote, "there will come a day you won't remember," the day you die.

There is an Old One inside that helps with this. One of the tragedies of America today is that it ignores and shames this Old One.

It's become a cliché that inside everyone there's a child -- an "inner child," as they say. Pop culture is an enormous omnipresent machine for tantalizing and tricking this Young One within. The Young One seems the only part of you that our commercial culture takes seriously. Your Young One is seduced into consuming like an adult while remaining too young to think like one. Your Young One is flattered into thinking it's your truest self, the one you must always look like, the one you must never leave behind.

This gives the Young One burdens, responsibilities, beyond its capacities -- making your Young One all the more insecure, all the more vulnerable, and thus all the more susceptible to the lies you are being sold. And selling is the object of this delusion. As we age, we're frightened into buying all manner of chemicals, operations, concoctions, to retain some ghost of the Young One. Few see that what they're really doing is devoting lots of time and money to being afraid, nor that this only feeds their fear and makes it stronger.

The most insidious result is that, by buying into this cult of the Young One, we insult and shame the Old One.

The Old One has been in you from the beginning, just like the Young One. You can see its expression sometimes even in the face of an infant -- or in your own face in a childhood photograph. Or in the sudden wisdom of a grade school or high school kid -- something utterly true and perceptive, completely beyond their experience, yet theirs nevertheless. It's the Old One talking. The Old One is in you, waiting to take over from the Young One when it's time.

When other eras taught their young to "respect your elders," they were also respecting the Old One who lived in the young -- strengthening the Old One, giving the Old One a source of pride, so that it would be up to its tasks when it was needed. But our culture insults and shames the Old One at every turn -- and sells the idea that, in order to be accepted, you too must insult and shame your Old One by trying to stay young. After 50 years or more of insult and shame, our Old One is weak and frightened and riven with self-doubt. And then it's no wonder we are afraid of aging, for how can such an Old One come forth in us and be strong when its time has come?

Much fear of aging, in our era, is our intuitive sense that both we and our culture have conspired to degrade the Old One within to such an extent that our Old One is useless to us, crippled. What it was born knowing, it no longer knows. It has absorbed too many insults, and is too full of doubt. So we are left with only the Young One with which to face infirmity and death. But that's not something that the Young One is prepared for, for the Young One is incapable of believing in death. You might say that its job is not to believe in death. Not to value, much less respect, death. That's part of its beauty. With that audacity, the Young One gives us great strength, at the proper time. But that time passes. And, when it passes, only the Old One can give us the strength we need. But it's difficult to be strong after a half-century of ceaseless shaming.

52... the Old One came to me. Not-yet-me, but me. My Old One counseled me not to be repelled by the changes in my face, in my body, and the graying and loss of my hair. Bid me to respect him, feed him, sing him, speak to him, listen to him, walk with him. To cease shaming him, and to not allow others to shame him, and to comfort the shamed parts of him. Make a place for him to occupy, to do his job, when it's time. For time doesn't kid around. It will come soon enough, the day when I'll awake and be very lonely and frightened if the Old One isn't there or isn't able.

Michael Ventura is a Los Angeles-based writer.

Some Justice in Tulia

Thanks to the wonders of the human memory -- and computerized banking -- Tonya White is a free woman. One of 46 defendants charged in the infamous Tulia drug bust, White had faced a five-to-99-year prison sentence on felony drug charges until April 12, when the state moved to dismiss the case after bank records proved her innocence. "It's just a relief," she said. "Thank God for my lawyers, who trusted me and believed in me."

White's accuser, drug agent Tom Coleman (who is white), had claimed that on Oct. 9, 1998, she had sold him cocaine within 1,000 feet of a Tulia playground. At the time of the alleged transaction, however, White was living in Oklahoma City, as her bank records confirmed in court. Last winter, she had discussed the documents with her attorney, Jeff Blackburn, an Amarillo civil rights lawyer who founded the Tulia Legal Defense Project to represent defendants standing trial. But nothing noteworthy about the records came up until an early April phone conversation between White's mother and Blackburn's legal assistant. Mattie White suggested that her daughter could have received a worker's compensation check in October 1998, and had probably deposited it around the ninth. After four years, Tonya couldn't remember where her old bank was located, so Blackburn immediately dispatched an investigator to Oklahoma City to canvass the city's banks. "The fourth was the charm," he said.

For Blackburn, who represented White pro bono, her acquittal represents a critical turning point in unraveling the facts of the Tulia bust -- in which at least 37 defendants were black -- and the veracity of Coleman's claims. A narcotics agent who did not conduct video or audio surveillance, Coleman served as the sole witness in most cases. Furthermore, very little corroborating evidence was introduced during the trials. Partly due to public outrage and cries of racial profiling, the U.S. Department of Justice is investigating the Tulia cases.

District Attorney Terry McEachern, who oversees Swisher and Hale counties and based his prosecutions on Coleman's work, maintains that White's acquittal is an anomaly. "There was some inconsistency, in this case only," he said. "I stand by the other convictions, and what the juries did." McEachern believes the banking records "did not show conclusively" that White was innocent, but raised "enough doubt in my mind" for him to file the motion to dismiss the charges. "She is innocent because she is proven to be innocent under our laws."

A Tulia native, White says she never met Coleman until last January, when they both appeared in the same courtroom at her first pretrial. To this day, she doesn't even know how he found her name. She had moved from Oklahoma to her current place of residence, Shreveport, and didn't discover that she was a Tulia suspect until 1999, when she tried to return to the small West Texas town for a family reunion. Mattie White had seen Tonya's picture hanging in the sheriff's office, and told her daughter not to come home.

White did not turn herself into authorities until November 2001, but denies the "woman on the run" moniker bestowed upon her by the news wires. "I wasn't really on the run," she said. "They could have looked up my Social Security number. If they wanted me, they could have gotten me." In December 2001, she passed a lie detector test "with flying colors," but the months preceding her trial were stressful. Her "nerves" caused some of her hair to fall out, she said, and at night, she would hear noises and think that law enforcement was coming to get her.

Although now she may finally get some sleep, the specter of Tulia continues to haunt White. Relatives rounded up in the bust include her sister, serving a 25-year prison sentence; her younger brother, sentenced to 60 years on just one count (he's waiting to be tried on six others, White says); her uncle, 18 years; two twin cousins, and her nephew's father -- recipient of a 439-year sentence. Another of White's brothers served two years, and was released this winter. "Everyone in [prison], I knew," she said. "Everybody knew everybody." She hopes to help other defendants clear their names, she said.

On July 23, the Tulia Legal Defense Project will head back to the courtroom to represent 22-year-old Zuri Bossett, the final defendant to take the stand. Coleman claims Bossett delivered cocaine to him in 1998, when she was just 18; Blackburn says the charges against her are thinner than those against White. Already, the team has spent $25,000 out of pocket defending White and Bossett. "You've got to do something," Blackburn says.

The Great American Drug Book

Robert Sabbag was like a lot of people. He was going to write the Great American Novel. But it was the early Seventies and it was clearly time for him to "kind of bum around the world" like everyone else his age instead of remaining a newspaper reporter. When he returned, one of his friends, who happened to be a literary agent, suggested that he join her at the Algonguin Hotel to meet a man who thought his life as a drug dealer would make a good "as told to" book. Listening in was an editor from the Bobbs-Merrill Company, a house known for publishing The Joy of Cooking and the Raggedy Ann books. Before Sabbag agreed to write the story of Zachary Swan, as he would become known in Sabbag's now-classic Snowblind: A Brief Career in the Cocaine Trade, he performed a catechism on him to see if he was irreparably morally bankrupt. Had he ever shot anyone? Had he ever dealt heroin? But no, he was merely a con artist whose story would entertain readers. "Here I am presumably a serious author," Sabbag recently told the Chronicle from his William Morris agent's office in Los Angeles, "and what am I doing? I'm writing this goddamned cocaine book that's going to be like, 'as told to.' It's just going to be this stupid crime book. So what I did was I took what I considered to be a really inconsequential subject and wrote it in a completely and utterly formal fashion."

No one had ever seen anything like Snowblind. Vigorously reported, highly literate, and wildly, wickedly entertaining, Snowblind managed to predict, in 1976, the burgeoning cocaine explosion in America. After it was published, a man in the record business named Allen Long contacted Sabbag to say that he, too, had an intriguing story about drugs even though he was now clean. After checking out his story, Sabbag realized that Long was still smuggling marijuana and highly invested in hiding the facts and besides, Sabbag didn't want to be typecast as a drug writer. Since the mid-Seventies, he's written articles for national magazines and also penned Too Tough to Die, a book about the U.S. marshals.

Sabbag had stayed in touch with Long periodically throughout the Eighties, when Long was a fugitive. Several years after Long was released from federal custody in 1995, the two of them talked again about Sabbag writing a book about Long's experiences. Loaded: A Misadventure on the Marijuana Trail (Little, Brown, $24.95) opens with the moment everything really began to fall apart for the enthusiastic smuggler who started out wanting to make a documentary about drug smugglers. It's 1976, and Long, after being airborne for 15 hours in a rickety old DC-3 with his fellow "counterculture capitalists," is told he can't land at a clandestine airstrip in Colombia because the rain has turned the "runway" into thick mud.

From there, Sabbag doesn't relax the reins. Loaded has more one-liners than a convention of comedians. Before Long helped open up Columbia to American smugglers, he smuggled Mexican marijuana: "It was a clear, balmy, late-summer night on the Plazuela de los Mariachis, and for a moment Long was overcome with what he would remember as a heavenly glow. Shortly thereafter he woke up lying face-down on the floor of the men's room in two or three inches of wet sawdust." Sympathetic when he needs to be but no easy friend to the people he writes about, Sabbag loves to make his words zing in that classic, mordant, hard-boiled way: "Tony was a man who owned plenty of guns, but never to Long's knowledge was Tony seen cruising the streets of Miami with one of them stuck in his belt. In Miami that made Tony a gentleman." Loaded is so tightly wound and hard-hitting, it's kind of a surprise the book doesn't bounce. It's hard to imagine that doing the drugs Sabbag writes about is as fun as reading him.

Austin Chronicle: How did you end up writing about drugs?

Robert Sabbag: Snowblind, this is its silver jubilee, actually, and when I wrote that book I really didn't know anything about drugs at all. It was a job for hire. What happens now, as a result of the success of that book, is they come to me, these guys, and Allen Long is one of those characters. He read Snowblind and called me and wanted me to do his story and it was pretty much precisely for that reason that I didn't do it. My next book was about the U.S. marshals, and I've done a lot of magazine journalism, very little of it, actually, about drugs, but this one kind of came along. What happened was, Allen Long called me after he got out of prison. He and I had sort of fallen out of touch -- he'd fallen out of touch with everybody because he was running from the law under a phony ID -- and every six months or so I'd get a call from him and I just happened to be looking around for something new, and it dawned on me that now might be a real good time to do this book.

There's a certain nostalgia associated with it. This is kind of ancient history, this is once-upon-a-time. I think most people would identify it as a culture that has vanished in a way. There's probably more than one generation of people who have no idea what it was like to be alive in the Sixties and Seventies and what it was like to have everybody on the street that you'd run into, half of them be stoned all the time. One of the more difficult things was trying to reconstruct what life was like back then.

AC: Well, what is this book really about?

RS: What makes it interesting to follow through the eyes of Allen Long is that his experience in and of itself, his kind of cavalier entry into this business, really parallels the metastasis of the drug business not only in the United States but in Columbia as well. This thing grew and grew and became bigger than it started out to be. It became much more than an adventure, it became much more dangerous and darker and it had geopolitical implications that nobody could imagine, certainly not Allen Long when he was getting high and saying, "Let's go down to Colombia and get some pot." It would be difficult for me to find an interesting way to write about the drug business today. There doesn't seem to be a lot about it that's very fun or very interesting. It's dark and criminal and painful and there's nothing whimsical about it. Whereas even cocaine had its days of a kind of whimsical quality.

AC: Both Snowblind and Loaded open with these inauspicious moments for the main characters. What is it about that technique that you like?

RS: I ask myself the same question. I don't know that I can give you a reason for doing it, but it's one technique that I can actually identify and I learned in studying Vergil, I think, in high school: in medias res, "in the middle of things." When I wrote Snowblind, I had never written a book before or anything close to it. I said, "Well, now I'm going to write a book and where should I start?" Nobody ever taught me how to write anything other than an obituary or a news story. I said, "Well, I'll start in the middle of things."

AC: People say that detail is what makes for a good story, but Loaded is so full of detail ...

RS: There are some people who say that detail kills a story. I get the sense that the detail might have enriched it for you.

AC: It did.

RS: To me, that's the idea! The idea is to entertain the reader! I think the story drives forward deliberately enough to hold the reader's attention and I really do believe that readers are interested in that kind of detail. I think because this story is very much about reconstructing a time and place, that it's not irrelevant detail. I like to take risks and take chances and I'm not any better at it than anybody else. But I made the decision, and I do take some heat for it -- the early reviews of this book, Publisher's Weekly and Kirkus, what they don't like about the book is that there's too much writing in it. That's what they don't like! And I guess I'm just never going to please those kinds of readers. If you don't like that kind of stuff, you've got the wrong author. If you're going to write about something to some people as repellent as the drug trade, make it interesting on another level and I think that being able to laugh at the way these people behave -- they take themselves so seriously most of the time -- that I find it fun not to take them too seriously and to let the reader laugh along with me at their behavior.

AC: Do you have a sense of who your readership is?

RS: The audience I'm writing for might not be the audience people think I'm writing for. You might think, when you look at the things I write about, that I'm aiming at some very hip audience. And the fact is, I'm aiming at a very sophisticated reader, someone who likes to read. One of the things that surprised me about Snowblind, is that that book, which was written when I was 27 years old, presumably for an audience of my peers, was very, very well received by people in their 60s and people who loved to read. They really liked the language. I show off! I kind of play with the language in a way that other people don't. Maybe I'm a little bit outdated in that I continue to do that today. I like to entertain people, obviously, and it doesn't have to be a comedy to be entertaining. What I like to do is take people places they've never been before.

Clay Smith is a senior editor at the Austin Chronicle.

Brave New Web

You're probably scared of hackers.

And who wouldn't be? They have the ability to topple corporations, send stock prices reeling, ruin your personal credit, and distribute false news stories, sending us all into the streets in a War of the Worlds-like panic.

But that's not the whole story. Hackers gave us the Apple computer. They've improved Internet security. They fought for civil liberties on the Internet. They gave Ferris Bueller his day off.

There are all kinds of people who classify themselves as hackers, ranging from mild-mannered, law-abiding programming geeks to credit card thieves with organized-crime connections. They're a fractious community -- usually male and in their late teens to early 20s, with a cavalier attitude toward Internet law. That community now finds itself at the center of a renewed debate over the nature of the Internet as a free system. In the post-WTC world, utopistic hopes for a democracy of information have been supplanted by fears of the power of this tool to cause harm. As a result, trends toward regulating the Internet have accelerated, and advocates of freedom in cyberspace have been pushed to the margins. It's a new World Wide Web out there.

Public Enemies

Bob is not your average high schooler.

Recently, the 17-year-old student hacked into a major Hollywood studio's computer system and stole a copy of a yet-to-be-released blockbuster movie. As a result, he is one of only a few people who saw the original cut, complete with the line "man chowder," a potentially classic catch phrase that ended up on the cutting room floor.

Bob -- whose name was changed for this article -- plays in a band, writes brilliant computer programs, and used to count himself a member of the "cyberpunks," the vandals of the computer world. When he talks about computers, his speech accelerates as the words struggle to keep up with his brain. "We used to break into the elementary school computers to try and change grades, and if we didn't like people we'd put fines on their library books. It would mainly be me and friends who didn't know anything about computers, they'd be looking over my shoulder and chanting 'Bob! Bob! Bob!'"

He has an illustrious reputation as a hacker, but Bob relates his conquests, like the "man chowder" one, with an air of detached amusement and a noticeable lack of bravado. So why did he do it? "Definitely for the challenge of it. It's a thrill -- it's like skydiving or something. You know, that falling feeling like when you're in a roller coaster or something, when you're in there covering your tracks, trying not to get caught."

Legendary hacker Lloyd Blankenship illustrated that feeling of exhilaration in 1986 in an unofficial hacker manifesto (known as Conscience of a Hacker) that's been circulating on the Internet for years. Blankenship describes the sensation of hacking as "rushing through the phone like heroin through an addict's veins, an electronic pulse is sent out, a refuge from the day-to-day incompetencies is sought ... a board is found. 'This is it ... this is where I belong.'"

Indeed, for the teenage hacker, it's all about the belonging. In order to be accepted into elitist cyberpunk subcultures, some young hackers commit risky and damaging crimes. Low-level, less skilled hackers (derided as "script kiddies") often vandalize Web sites or steal personal information to impress their friends and other hackers. But the criminal element is the exception, not the rule. Law enforcement authorities say criminal hacker activity is rarely reported.

Hacker organizations such as the local chapters of the 2600 Group tend to operate under the radar. These local chapters are part of an international movement loosely organized around 2600: The Hacker Quarterly, a magazine about the computer underground. They hold monthly meetings, billed as "forums for all interested in technology to meet and talk about events in technology-land, learn, and teach."

2600 meetings are very much like the geek table in the high school cafeteria. One of the hackers plays with some scrapped hard drives. At the other end of the table, some take a surreptitious digital picture of a security guard. They talk about wireless Ethernet nodes around town. They swap code. There's a moment of excitement when one of them causes a system crash and restart on his cell phone. At one point, a newcomer to the group says he's not sure if he really qualifies as a hacker. Tami Friedman, a veteran member, administers a quick hacker test: "If a program doesn't work the way you want it to, do you fix it? Do you stay up all night writing code? Do you read the manual before you start using new software?"

As in any clique, especially one considered "outcast," there's a real bond among the 2600 Group, and they can quote Conscience of a Hacker from memory: "We explore ... and you call us criminals. We seek after knowledge ... and you call us criminals. We exist without skin color, without nationality, without religious bias ... and you call us criminals."

In the current political climate, the "criminal" label is more apt than ever.

Taking Liberties

Since September 11, the U.S. government is facing a new public mandate: Prevent terrorism before it happens. With good reason, the American people expect officials to make the country less vulnerable to attack, and to make arrests before the crimes are committed. But in order to do so, government agencies have deemed fitting a return to J. Edgar Hoover-style intelligence gathering and surveillance on the basis of suspicion rather than evidence.

The first step was the passage of the USA-PATRIOT (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism) Act on October 26. The purpose of the law is to make it easier for law enforcement to fight terrorism, and it contains many sensible provisions to that effect. But it also implements sweeping changes in the U.S. legal code that deserved serious debate. Faced with enormous pressure from the Bush administration, Republican Party leaders pushed the bill through Congress without sufficient scrutiny. Rep. Barney Frank, D-Mass., criticized the pending legislation during floor debate, saying "this bill, ironically, which has been given all of these high-flying acronyms -- it is the Patriot bill, it is the USA bill, it is the stand-up-and-sing-'The Star Spangled Banner' bill -- has been debated in the most undemocratic way possible, and it is not worthy of this institution."

Several of the more troubling provisions of the USA-PATRIOT Act deal with the Internet. Marc Connolly of the U.S. Secret Service states that the act also "authorizes us to create a national network of electronic crime task forces." The purpose of the new task forces will be to hunt down domestic electronic criminals rather than cyberterrorists, who fall under the jurisdiction of the Office of Homeland Security. The law institutes harsher and broader penalties for hacking into a protected computer -- even if no damage is done. This clause criminalizes less serious forms of computer cracking that have been overlooked in the past.

Tommy Wald, an Internet security expert with Riata Technologies, questions the effectiveness of these clauses. "The whole idea of raising the penal code will eliminate a certain portion of hobby hacking and nuisance hacking, but it won't deter more destructive international cyberterrorism. It's going to have a minimal effect." Instead, it will have an effect on people like Bob, who would face federal prison for his Hollywood studio hack under the new law. "It's ridiculous, but not unexpected," he says.

Another controversial provision of the USA-PATRIOT Act allows increased use of Carnivore, a wiretapping software for the Internet. Carnivore is installed on an Internet Service Provider (ISP), such as AOL, in order to monitor the e-mail and Web-browsing habits of a suspect under surveillance. Civil libertarians have long contended that this tool could be easily used to conduct unlawful surveillance of ordinary citizens. Now, the USA-PATRIOT Act allows for the implementation of the Carnivore system without a warrant in some cases. "I can concede that there are times that the government has a legitimate need, even a mandate, to access communications on the Internet," says attorney Scott McCullough, counsel for the Texas Internet Service Provider Association. "But I consider [the USA-PATRIOT Act] to be a huge overreaction. Terrorists who are organized enough to do what we saw on September 11 are going to use high-level encryption ... rendering Carnivore useless." Carnivore would be useful only against someone who had no reason to conceal the content of his or her e-mail. Again, the effect on combating terrorism will be minimal, at the potential cost of civil liberties.

Closing Up Shop

The USA-PATRIOT Act isn't the only controversial measure the government has taken to increase security since the terrorist attacks. Several government Web sites have been shut down. Shortly after the attacks, the Nuclear Regulatory Commission closed their entire Web site, pending review (some of it is now back online). Christie Whitman's Environmental Protection Agency (EPA) was quick to follow suit, deleting from their site information that dealt with the potential risks of industrial accidents and the like. "The presence of this information could provide information to terrorists," says EPA spokesman Dave Barry. Environmentalists have fought a number of legal battles to keep this information in the public eye since the mid-Eighties, touting it as an important way to keep corporations accountable for their environmental practices. Now, without even a court hearing, it is gone.

Critics charge that the government is guilty of political opportunism, using a time of crisis to push an old agenda of greater regulation and increased federal power. In more peaceful times, the American people would not stomach such infringements on their civil rights. Now, it seems, Americans will stomach pretty much anything. "I am convinced that the government is using [the terrorist attacks] as an excuse to accomplish the same goals that it has stated for years," says McCullough. "Many of the new provisions don't relate to what we perceive of as terrorism. They're incredibly broad about what terrorism is." These provisions relate to minor criminals and people whose First Amendment activities might be deemed a threat to national security -- such as hackers.

Bombs Away

Jim Choate is one such threat. The 42-year-old local software engineer at IBM is a principled, intelligent activist who believes that technology should have a more organic role in society. He believes in a democratic solution to our problems, in communication to promote consciousness, in the Constitution of the United States, and a whole host of other things that fall just short of teaching the world to sing. And, incidentally, he exercises his First Amendment rights by distributing bomb plans on the Web.

"How many people have read [bomb plans] on the Internet and realized that a 12-year-old was collecting bomb materials, and stopped them?" Choate says. "It seems the potential for intervention is greater than the possibility for prevention."

Choate sees his exercise of free speech as a thumb in the dike against the growing threat of a government monopoly of information. He's part of the cypherpunk movement, a sort of hacker subgroup and network of Internet freedom and privacy advocates.

Like most hackers, the cypherpunks are often running afoul of the law. In particular, they're infamous for figuratively tweaking the noses of people who lack a sense of slapstick, such as the FBI. The cypherpunks' idea of a good joke is releasing a classified federal document on their public listserv.

Like the cypherpunks, ®™ark (pronounced "art mark") is an underground group that uses hacker tactics to bring about social change. They're best known for the Barbie Liberation Organization prank of 1993, when they switched the voice boxes of talking Barbie and G.I. Joe dolls and then returned them to toy store shelves. More recently, they organized a virtual sit-in, or "denial-of-service" attack, against Etoys.com during the 1999 Christmas season. ®™Mark was protesting a court-ordered closure of German art collective Etoy.com, which predated Etoys.com by several years. To close down the Etoys Web site, a large number of people logged in over and over, slowing the server to a crawl. The sit-in crippled the company's sales during the all-important Christmas season.

The success of the Etoys sit-in starkly illustrated how effectively hacking may be used as a tool of the powerless against the powerful. The history of hackerdom is a history of chafing against authority. From the early days of computing, hackers were the anti-establishment. They were the spunky freedom fighters, and IBM was the oppressor. Over the years, though, the hackers' motivations have varied widely, this dynamic has remained fairly constant -- hacktivists have taken on everyone from Microsoft to MGM to Ma Bell. Now, in the current unstable world order, U.S. sites seem to be prime targets for hackers.

In the aftermath of the terrorist attacks, both anti- and pro-U.S. hackers have mobilized, defacing Web sites and launching denial-of-service attacks. One of the first victims of this disorganized, unofficial cyber-war? A Web site about Afghan hounds, which was defaced on September 12. Still, an October report from the National Infrastructure Protection Center said the possibility of a serious cyber attack from abroad remains low, though "the threat is higher than before September 11."

Access Denied

The domestic response to the September 11 tragedy has been to circle the wagons, so to speak. When it comes to the Internet, the potential dangers suddenly seem to outweigh the benefits. McCullough forecasts grim consequences of this current trend. "I think the so-called 'controllers of wealth and power' have decided that this plaything [the Internet] is a sharp instrument that children shouldn't be allowed to run and play with. The most positive aspect of it will be taken away. We will once again be relegated to the role of passive consumer instead of active citizen."

If this happens, it won't be without a fight. Choate was quick to answer when asked whether recent events would discourage him from posting bomb plans on the Internet. "Fuckin' a! Hell no! We've got a First Amendment up there. We've got a Fourth Amendment up there. If [law enforcement officials] don't like what I'm doing, doesn't that just validate it even more?"

In unsafe times, what amount of government regulation is necessary? What do we gain as a society from freedom and openness in the democracy of information? Since September 11, public officials have taken a hard line on the regulation of the Internet. What will be lost?

True, if there was ever a time for rigorous national security, this is it. On the other hand, if there were ever a time for a free exchange of ideas, this is it.

This article first appeared in the Austin Chronicle.

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