Mumia Lives

It's a mixed blessing at best for those who are convinced that he's an innocent pawn, a political prisoner, a hero (choose one or all).

It isn't, after all, exoneration and a cash reward and an apology and a free trip to Bimini and maybe a change in the way cops and prosecutors and courts conduct themselves.  It isn't, in fact, any of those things.

But it's something.  And it carries a lesson.

Mumia Abu-Jamal has spent 30 years in prison for a crime he (and a host of supporters around the world) insists he did not commit.  The state of Pennsylvania, through the office of the prosecutor in Philadelphia, obtained a death sentence back at the start and has fought to keep it in place (and the conviction, too) ever since.

And now they're done.  Sort of.

They cried "Uncle" on the sentence.  No more.  After the latest court decision vacating Mumia's death sentence and the decision by SCOTUS not to reverse, the state's given up.  

From Philly.com.

Philadelphia District Attorney Seth Williams announced this morning he will not seek the death penalty against Mumia Abu-Jamal.

Which is something.

On the other hand, it leaves Mumia (1) convicted of a murder he may not have committed and after a trial that was pretty clearly unfair, and (2) with a sentence of Death in Prison.

Big whoop.

And yet.  It's something.  Not enough maybe, certainly nowhere near enough for Mumia or his supporters.  But something.  And not something small.

The state gave up. It will let him live.

Which brings us to the lesson.

Don't quit. Don't stop.

There have been 1277 executions by the various governments of this country since the killing resumed in January 1977.  But there have been tens of thousands - I have no idea how many, but it's well up in 5 figures and might be in 6 - who were not killed.  Some had cases dismissed.  There have been a few not guilty verdicts.  Many were sentenced to something other than murder in the trial court.

Others had death sentences vacated in state and federal courts on direct appeal or some sort of motion or collateral action.  But it's taken, generally, years.  Sometimes decades.  Of incredibly hard work by dedicated, creative, passionate people with mostly far too limited resources.  But it happens.  And it will continue to happen.

Unless we call it a day.

30 years.

But they won't kill him.

It's not enough.  But it's no small thing.

Let There Be Peace in the Valley

Scott Greenfield has an important post this morning about drug courts and, in particular, the one in Greenburgh that operates (well, operated since apparently it's been effectively shut down by New York's Office of Court Administration).

The Greenburgh drug court took a team approach. That is, there was a team that ran it: a couple of judges, a prosecutor, and an authorized lawyer or two. They did everything by majority vote - including decide whether other lawyers could practice there. John Caher in the New York Law Journal tells the whole story and gives the example, which seems to be what got the OCA's attention of what happened to Peter Tilem's client, Brooke Ahern. (Greenfield quotes the story, too - maybe it will go viral).

Mr. Tilem's client, Brooke Ahern, had pleaded guilty before Justice Friedman to petit larceny in August 2010 and was diverted to Greenburgh drug court. In October 2011, pursuant to a bench warrant, Ms. Ahern turned herself in and was remanded without a hearing by Justice Friedman to the Westchester County Jail, records show.

Several days later, Ms. Ahern appeared with Mr. Tilem in Greenburgh drug court, where Justices Forster and Friedman were presiding simultaneously, with one on the bench and the other in the jury box, according to court records.

Mr. Tilem said in an affirmation, supported by a verified petition from his client, that he was told by Justice Forster that he was not admitted to practice in the Greenburg drug court and the matter was adjourned for nearly a month while Ms. Ahern was in jail. Ultimately, a "team" that included the judges and two attorneys, Bernard Bacharach, the primary drug court attorney, and Alan J. Tomaselli, the alternate drug court attorney, voted to permit Mr. Tilem to represent his client, according to court records.

The records show that without a hearing, the team, along with Mr. Tilem, deadlocked 3-3 on whether Ms. Ahern should be immediately sentenced to a year in jail. Mr. Tilem said he voted against putting his client in jail, resulting in a 3-3 tie.

However, he said he was then asked to leave the room, and when he returned learned that his client was to be sentenced immediately.

"Presumably, with me out of the courtroom the vote was 3-2," Mr. Tilem said in his affirmation.

It's not unusual for folks like me to point out cases where courts and such "officers of the court" as prosecutors freely trample on the rights of the people.  And what was going on in Greenburgh is really just another instance.  More bizarre than some, less than others.  It's the Law of Rule rather than the Rule of Law. Of course, there are plenty of courts that don't operate in such lawless (or in some cases openly lawless) a fashion.  But in far too many cases, constitutional rights, like the Constitution itself, are considered (when they're considered at all) an impediment to be got around rather than a sacred obligation of our system.

Greenfield's point is that while the Greenburgh drug court may be an outlier, every drug court operates on the principle that while the goal is rehabilitation, the requirement is that constitutional rights must be surrendered.  There are variations, but the general pattern is that you plead guilty to the charges and then everything is held in abeyance while you do court or probation ordered counseling and penance and agree to lots of Fourth Amendment violations and if you don't screw up for the requisite period of time the plea goes away.  But if you aren't perfect (or sufficiently perfect), well, you had your chance.  As he concludes,

[I]t's still a trade-off of constitutional rights for drug treatment.

I understand that the first step to recovery, they say, is acknowledging a problem.  And I understand that the drug courts are, well, courts.  Despite good intentions about rehabilitation, they operate in the midst of the criminal justice system (and of course as part of the war on drugs) where the first order of business is to convict and where the assumption is that rehabilitation is at best ephemeral.

And again, there's nothing new here.

Except that they got caught.

After exacting how much damage on how many people over how long a period of time, we'll likely never know.  And mostly won't care.

Because, after all, Peter Tilem went from Greenburgh to the Office of Court Administration with a complaint.  And OCA did its thing and pulled the plug on Greenburgh.

Problem solved.

The Constitution saved.

And the lion did lie down with the lamb.

 

Make Mine a Single Malt

Prohibition was repealed 78 years ago today.

Forget that mob stuff.  Forget speakeasies.  Forget the nanny state and religious fanatics and the insanity of the war on booze (and drugs).  Forget Eliot Ness.

Here's why it had to end.  Three versions.

h/t NACDL and Mother Jones (which offers a playlist for the occasion).

There's Got To Be a First Time, Doesn't There?

An argument containing the contentions of the appellant with respect to each assignment of error presented for review and the reasons in support of the contentions, with citations to the authorities, statutes, and parts of the record on which appellant relies. The argument may be preceded by a summary.

That's Rule 16(A)(7) of the Ohio Rules of Appellate Procedure, the set of rules governing practice in Ohio's intermediate appellate courts.  Rule 16 is about what briefs must include.  Rule 28 of the Federal Rules of Appellate Procedure, addresses briefs in the federal circuit courts.  Section (a)(9)(A) has the same requirement, mandating that briefs include

appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies.

Which makes some sense when you think about what appeals are and how they work. 

Appeals are claims that something went wrong at an earlier stage of the process.  Typically, the claim is that the trial judge screwed up somehow.  She did or didn't make a proper ruling on an objection.  She did or didn't give the jury the right instructions.  She did or didn't suppress evidence or impose a lawful sentence or properly advise the defendant of his rights when taking a plea or . . . . You get the idea.

And the judge screwed up because there was a rule he didn't follow or he followed wrong or a statute he ignored or case law he missed or misunderstood or an argument he should have bought but didn't. Or maybe the judge overlooked a crucial piece of evidence in issuing a ruling or remembered it wrong. Or something.  Because the judge really can't screw up in a vacuum.

In fact, the rules pretty much require that the lawyer complaining on appeal have given the judge enough information to know what the issue was and to avoid screwing it up.  It's that old "if-your-lawyer-screwed-up-you-have-only-yourself-to-blame" thing.

So sure, it makes sense that when we brief an appeal we have to provide citations and authorities on which we're relying.  Because it's all about what the judge got wrong that could and should have been gotten right.

But what happens when there are no authorities to cite?

Kenneth Jowers was sentenced by a federal judge in Tennessee to 46 months in federal custody for knowingly and intentionally possessing four guns even though he was a convicted felon.  The sentence was higher than it might have been because if there are more than three guns the guidelines call for a two level enhancement.  (Don't worry if you don't understand.  It doesn't matter.)  He argued on appeal that he should have gotten less time because two of those guns were really his father's; his father stored them in his bedroom before Jowers became a felon; his father then died, and Jowers never got around to removing those guns.  He didn't deny that he violated the law by possessing them (he entered a guilty plea), just that those two guns should have counted less.

Jowers had a good panel, the kind that in the 6th Circuit often leads to a 2-1 win.  Not this time.  When you have no case you're supposed to lose, and Jowers really had no legal case.  So he lost, which is neither here nor there (except to Jowers, of course).  But the question of how he lost, that's something different.

Here's a bit from the majority opinion by Judge Merritt.

Although the defendant apparently did not explicitly make a “disparity” argument in the district court based on § 3553(a)(6), which requires consideration by the court of the “need to avoid unwarranted sentencing disparities,” his only argument against this sentence on appeal is that the two-level enhancement constitutes an unwarranted sentencing disparity.” He does not explain by reference to case citation or other reference to how, when, or where defendants in a similar situation in other cases received a more favorable sentence omitting the two-level enhancement. He makes no argument that would assist us in differentiating his specific situation from other specific situations, and so his argument based on “disparity” is not well taken.

Note that word so in the last sentence. He might have won, Merritt says, if only he'd had some authority, some case (as lawyers like to say) on point. But it's just him.  Therefore [so], he loses.

Now, that makes perfect sense.  The rules say you're supposed to cite authority, and apparently Jowers didn't.  And it makes particular sense here where his saying that there was something disparate about his sentence.  That is, other folks in similar situations are better treated.  If you're going to make that claim, it helps if you can point to a bunch of them - or at least one.  Apparently he didn't.

But the point remains that Jowers lost because he was skating solo.

Judge Clay agreed that Jowers should lose. (Jowers really did have no legal case, it appears given the standards appellate courts are supposed to apply.) But other than the result, Clay disagreed with everything Merritt wrote.  OK, it's not that much.  From case caption through Merritt's opinion and to the end of Clay's concurrence takes all of four pages. And the Judge's thought so little of the case that they decided it shouldn't be published.

In any event, here's the relevant part of Clay's separate opinion.

I also note my disagreement with the majority opinion’s emphasis on Defendant’s failure to “explain by reference to case citation or other reference to how, when, or where defendants in a similar situation in other cases received a more favorable sentence omitting the two-level enhancement.” Although Defendant did not cite to any cases where a defendant received a downward variance because he only “negligently” possessed firearms in violation of § 922(g), the failure to demonstrate the existence of similarly-situated defendants who were successful in other cases is not a bar to bringing such an argument. Indeed, if that were the case, no defendant could ever raise a new or novel argument in challenging his conviction or sentence.

I've written before, I imagine, about Ernesto Miranda's trial lawyer.  He's the guy who stood up in an Arizona trial court and said that his client's confession should have been suppressed because the cops never told him he had a right to talk to an attorney before answering any questions.  I've always imagined (though it's probably not true) that judge and the prosecutor and the court reporters and the cops and everyone else in the courtroom broke into giggles at that.

You've gotta be kidding.  What've you been smoking?

But, of course, SCOTUS said he was right.  (And sent the case back so that Miranda could get a new trial without the tainted confession - a trial at which he was again convicted, by the way.)

Years ago I obtained a new trial for a defendant on death row when I argued that . . . . It doesn't matter what I argued.  What matters here is that my entire authority on the winning point, the only thing I cited, was the Due Process Clause of the 14th Amendment and an unreported case from a different court of appeals in Ohio that made an altogether different point.

On the Merritt test, Miranda would have lost.  So would my client.

The law is harsh and unforgiving.  And as I said, the rule requiring authority makes some sense.  Most of the time.

But Clay is right. There has to be room to say, 

Never before, but now.

The court's opinion in United States v. Jowers, by the way, is here.

Your Lyin' Eyes

The case is Williams v. Illinois, cert granted at the end of June, argument before the berobed ones in DC on Tuesday.

It's another in the line of cases that began with Crawford v. Washington which said that the Confrontation Clause of the Sixth Amendment prohibits the prosecution from presenting "testimonial hearsay." In Melendez-Diaz v. Massachusetts, the Court made clear that reports of crime lab technicians are testimonial hearsay and that the prosecutor can't bring in those reports without also presenting testimony by the lab tech.  The formal question in Williams is whether DNA test results are like crime lab reports.  Must the lab folks who did the actual tests come and testify or can some flunky just say,

Hey, here's the report.  No, I didn't have anything to do with it - never even heard of DNA until just now, you know, I'm a janitor at the pizza place next door to the lab.  But they did it perfectly just like always and there's less than a 1 in 673 bazillion chance your guy isn't the killer.  Trust me.  It's DNA so there can't be anything wrong with how the samples were handled, how the test was done, or how the data were analyzed.  No, don't bother with cross-examination.  Thanks, I can find my own way out.  Say, you guys like pepperoni or anchovies?

That's the technical question.  The real question is whether Melendez-Diaz should be overruled either specifically or in effect.  Justice Scalia, the architect of this line of cases, has been losing his majority, so it's a tough question.  I mean, really, why should we bother with requiring the DNA testers to come to court when the pizza guy's available?

The essence of Williams's argument is going to be that the Constitution says confrontation* which means Illinois has to bring in the person who actually did the testing and analysis so that she can be cross examined.  There's no DNA exception to that, no lab tech exception, no don't-be-silly-there's-no-need-we're-all-scientists-here exception.  Besides, Williams will argue, it matters.  Labs fuck this shit up all the time.  And the analysis is never as clear and simple as they say.  Cross-examination isn't just a constitutional guarantee, it's a necessary component of getting an accurate verdict.

Again, the state's argument is Constitution Shmonstitution.  Really, the report speaks for itself.  There's just no point to confrontation. And it's so much trouble.  They haven't sold that to a majority of the Court in this post-Crawford world, but they may manage it this time.

Which is really too bad because Williams is right.  He's not just right as a matter of constitutional law. He's right as a matter of getting it right.  It does matter.  It matters with DNA analysis and with ballistics and with gas chromatography and breathalyzers.  It makes a real difference in the real world because the labs really do fuck it up.  

So I'm watching Williams with some trepidation.  Because when you put convicting people on one side of the scale and constitutional rights and actually getting it right on the other, the convicting people side tends to be a whole lot weightier.

And yet, because I'm a glass-half-full sort of guy (just ask anyone who doesn't know me), because I can always see the bright side, and seriously because I know a good point when it appears in a Times op-ed by Jeffrey Fisher (the lawyer who won Crawford and Melendez-Diaz) and in blog posts from Scott Greenfield and the Appellatesquawk, there's this.

New York just gave away the store.

Four amicus briefs were filed on each side in the case.  The one that made those folks sit up and take notice is from the New York County (that's Manhattan) District Attorney and Medical Examiner.  It makes three points, not in this order.

1. There's no testimonial hearsay involved so the whole case should just go away.
2. DNA is science and absolutely trustworthy so there's no point in cross-examination.
3. If we actually have to produce the people involved, there will  be "dire consequences."

It's that last one, dire consequences, that's interesting.  Here's the heading (all the caps are how it appears in the brief) of the argument's second section.

AN “ALL-TECHNICIANS-MUST-TESTIFY” RULE WOULD HAVE DIRE CONSEQUENCES FOR THE CRIMINAL JUSTICE SYSTEM

OK, I'm scared.  But what exactly are those consequences?

• The guilty will go free?
• Raping and pillaging on the streets?
• Blood and destruction?
• The terrorists will win?

Nope.  None of the above.  No, the dire consequence is that innocent people would be convicted.

Yep.  That's right.  If defendants have the right to confront the folks who do DNA tests, the innocent will suffer.

You say that's bizzare?  It's counter-intuitive? It's bullshit?  Ah, grasshopper, how much you have to learn.  Are you not familiar with the poison pill?  Here's the important part of the brief (footnote omitted)

At worst, an all-technicians-must-testify rule would force the OCME to reduce the amount of DNA testing it conducts, and force prosecutors to forego forensic DNA analysis in cases where it might be highly probative. In the absence of DNA testing, defendants might well be prosecuted solely on the basis of eyewitness testimony, the reliability of which is often questioned. See United States v. Wade, 388 U.S. 218, 229 (1967)(“the influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than another other single factor” (internal quotation and citation omitted)). Significantly, over a recent twelve-month period, nearly one in ten suspect profiles tested by the OCME for the Manhattan DA’s Office resulted in an exoneration. Indeed, in a recent “pattern rape” case in Brooklyn, DNA testing exonerated 18 suspects before the nineteenth submission led to a match. No one concerned for innocent individuals suspected of serious crimes should prefer a world in which DNA testing is needlessly curtailed.
If requiring the testimony of each technician would significantly advance the truth-seeking process, then the practical concerns advanced above would give way. But nothing could be less true.

Got that?

If DNA testers actually have to testify, well then, the police and crime labs will stop doing DNA testing.  They won't do the test because if it showed they had the right guy, they'd want to tell the jury, and that would mean testimony.  Can't have that.  And can't have the information and not tell the jury.  So they just won't learn.

That means that cops and prosecutors and juries will have to rely on eyewitness testimony.  And that means that at least 10 percent of the people convicted of crimes, and maybe as many as 95 percent, will be factually innocent.

And remember, "nothing could be less true" than that this will happen.  That is, it's absolutely certain.

Being prosecuted in New York?  Based on eyewitness evidence?  You've now got what is (at least arguably) an admission by a party opponent - not hearsay - able to be put before the jury - saying that there's a pretty fair chance (if not a near certainty) that you're innocent.

Outside New York?  We'll find a way.

Or, of course, as I've written before, they could just test the DNA.  You know.  Cause they might wanna know.

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*The actual language of the Sixth Amendment, is

In all criminal prosecutions, the accused shall enjoy the right . . .  to be confronted with the witnesses against him.

Take Me to Your Fjord

Oh to be in Norway now that winter's nigh!

Well, maybe not.*  Nothing against Norway which has many fjords to recommend it and which I'd actually like to visit someday, but there is much to keep me occupied here.  Still, anywhere that can yield this headline to an AP story in the Gray Lady is worth attention.

Norway: Killer of 77 Was Insane During Rampage, Prosecution Says

I mean, really?  The prosecution says he was insane?  The prosecution? The fucking prosecution says he was nuts?

Here it's a full scale battle.  Consider Anthony Sowell, convicted killer of 11.  He kept the bodies in and around his home for years.  His lawyer, John Parker, explained to the jury that

[A]nyone who lives in a house for two years with the rotting remains of his murder victims must have a mental problem.

Which seems kinda self-evident to me, though the prosecutor disputed it.  As I said in full snark, quoting the AP report on the jury argument,

Assistant prosecutor Pinkey Carr said Sowell deserves to die for his crimes and responded to the comments about his mental condition by saying: “He’s crazy like a fox. He’s evil.”

See, it was all carefully done so that someday when he was prosecuted for the killings he could argue that he must have been insane.  But, nah.  Criminal mastermind.

Which is, of course, bullshit.

But it's the prosecutorial mindset.  And, oh, yeah, it's also our law.

Here's the Ohio statute on being not guilty by reason of insanity (which we call NGRI for simplicity).**

A person is “not guilty by reason of insanity” relative to a charge of an offense only if the person proves, in the manner specified in section 2901.05 of the Revised Code, that at the time of the commission of the offense, the person did not know, as a result of a severe mental disease or defect, the wrongfulness of the person’s acts.

Of course, that's not the same as just being crazy as a bedbug.  And actually Parker was arguing to the jury that they ought to spare Sowell's life, not find him NGRI, so the standard isn't perfect but you get the point.  Sowell was clearly nuts.  Just not legally nuts so as to be locked up in what used to be called an insane asylum for the rest of his life instead of locked up in prison until the state gets around to murdering him.

But back to Norway for a minute where the standards make some sense and where the prosecutor actually said they applied.  Here's the test as I understand it from the media (and I'm summarizing, not quoting).

Was the person psychotic at the time of the offense? That is, was he acting under gross delusions about reality so that he didn't ?

Now, that's something less than, say, he thought he was playing ping pong but was in fact raping and pillaging.  But if you're talking about criminal responsibility it makes some sense.  If a person is so out-of-touch with reality that he has no grasp of the world, how can we say he's fully responsible for his acts?  Well, we can in this country because we do.  (Or is it that we do because we can?) But not in Norway.

Naturally, we're horrified by the Norwegian approach.  Debra Saunders in the San Francisco (yes, that San Francisco) Chronicle.

So why do I think Oslo's chosen experts have decided that Breivik was insane? They're so sublime, they don't know how to recognize evil.

Of course, another reason might be because the experts spent a whole shitload of time examining him and concluded that he was psychotic and delusional which is the Norway standard.  Here's the AP story in the Times again.

The court-ordered assessment by two psychiatrists found that Mr. Breivik, 32, an anti-Muslim militant, was psychotic during the attacks. It will be reviewed by a forensic panel before the Oslo district court rules on his mental state. 
The conclusions contrasted with earlier comments by the head of the review panel, who said in late July that it was unlikely that Mr. Breivik would be declared insane because the attacks were so carefully planned and executed. But prosecutors insisted that the psychiatric report described a man living in a “delusional universe,” a paranoid schizophrenic who had lost touch with reality.

But then we don't care about that.  (See my earlier post on the Norwegian horror in which I explored Professor Thane Rosenbaum's lament that our criminal justice system doesn't channel Nancy Grace on guilt and punishment.)

Which brings me to the second point (or is the third).

Scott Greenfield this morning wrote about Fordham Law professor John Pfaff's post over at prawfsblawg discussing the ability of juries to deal with conflicting scientific evidence.  Here's the short version of the problem, and in fact it applies to everything that passes for expert testimony.

The bedrock assumption of our jury system (criminal, but civil too, by the way) is that the collective wisdom of 12 ordinary folk can tell when a witness is lying (or reporting on misperception) and when one is telling the truth based on watching and listening to the witness testify on direct and then on cross-examination. Whether or not that's true, direct testimony and cross examination will not help jurors accurately figure out whether computer models that show global warming will end civilization as we know it within 100 years are more accurate than computer models that show it will have no substantial effect.

That is, expert testimony is so different in kind from other testimony that when experts disagree, juries can only guess.  Hell, if the scientists can't agree about global warming, how can we expect the jurors figure it out.

Which means, really, that if the experts disagree on an element of the offense, it clearly can't really have been proved beyond a reasonable doubt since that would mean the other (court-certified) expert was offering an unreasonable (and therefore improperly admitted) opinion.

And of course that means that our system is wholly fucked, which you knew anyway (or knew I thought so, at least, if you've been reading this blawg for a while - and if so, how come you didn't convince the ABA to make me a finalist in the blawgoff?  But I digress).

It's a simple point, made more complicated by Pfaff's  effort at quantification and invocation of Rumsfeld Koan.***

Of course, juries are already free to find a “known unknown” if they wish. I want to push the issue further: as a matter of law, should we compel such a non-finding? Even before getting to questions of jury competence, is there some sort of particularly important meta-evidence we get from credible dueling experts? Does the very inability to agree suggest, at least in criminal cases, that as a matter of law there is no fact for the jury to find? We know that we don’t know, and it is unreasonable to argue that you do know in such a setting.

Even if you’re not convinced by this argument—and I’m still trying to decide if I am—the jurors’ lack of epistemic competence may still play a role: while perhaps in theory there is some fact to be “found” here, the people we are asking to find it are effectively blind. Jury pools are not well-educated: at best about half are college graduates (and this from a study set in Connecticut, the sixth-best educated state in the country), and few college graduates have real math/science training. So if dueling experts do not theoretically demand a non-finding, does the clear inability of the jury pool to make the necessary finding along rational lines do so pragmatically?

Really, it wouldn't matter if they jurors all held doctorates in the relevant field. If the goal is to determine with which of two conflicting reasonable opinions is unreasonable (which when you think about it is precisely what we ask jurors to do in evaluating expert testimony) the only possible answer is neither and therefore the point isn't proved adequately.

There is, of course, a reason the public sneers at expert testimony.  Don't believe they do?  Consider New Mexico where in 1995 a proposed amendment to a regulatory bill for psychologists was actually passed by the state senate.

When a psychologist or psychiatrist testifies during a defendant's competentcy hearing, the psychologist or psychiatrist shall wear a cone-shaped hat that is not less than two feet tall. The surface of the hat shall be imprinted with stars and lightning bolts.

Additionally, a psychologist or psychiatrist shall be required to don a white beard that is not less than 18 inches in length, and shall punctuate crucial elements of his testimony by stabbing the air with a wand. Whenever a psychologist or psychiatrist provides expert testimony regarding a defendant's competency, the bailiff shall contemporaneously dim the courtroom lights and administer two strikes to a Chinese gong.

Honest.

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* I was all set to do some snark about the weather.  In fact, I began with this:

I'm no fan of warm weather (once it hits 70 I want to put on the A/C), and I'm a big fan of cloud cover rather than sun (had god wanted us to be up and out during the day, she'd never have invented the light bulb).

Then I was going to say that living in Helsinki would be like living in a house we rented one fall semester in Pittsburgh when we were in college, back in the days of the ancien régime. Among other unlikely features, the place that had big holes in all the outside walls where the landlord really intended to put windows some day.  I remember one December night, wind whipping through the place, snow settling on the furniture, me sitting on the floor in front of the stove with the oven set at 500 and the door wide open to let some of the heat into the kitchen, bundled up in winter coat and gloves, typewriter before me, trying to type a paper.  Except I looked up Helsinki weather to stick in some numbers and it turns out that Helsinki actually has a pretty fair climate so the hell with it.

** I'm quoting Ohio although the standards differ from state to state and off to the feds, but Ohio's test is within striking distance of the others.

*** Reproduced here from Hart Seely's "The Poetry of D.H. Rumsfeld" at Slate.com.

As we know,
There are known knowns.
There are things we know we know.
We also know
There are known unknowns.
That is to say
We know there are some things
We do not know.
But there are also unknown unknowns,
The ones we don't know.