Nebraska: They shoot horses, don't they?

Although I can hardly call myself prescient for anticipating that this would be a difficulty after the Nebraska Supreme Court made the long-overdue move to determine that the electric chair is cruel and unusual, it has finally happened.

And, wouldn't you know, Jon Bruning is trying to do things that the legislature will not, just ipse dixit (he thinks he's governor, even though he has been thwarted at all his turns, by Dave Heinemann, Tom Osborne, and the fact that Jon Bruning is from outside of Omaha, which really cuts into his political efficacy). He is trying to say that people on death row can still be executed, just not by electrocution.

As usual, Jon Bruning is dead wrong.

1) The Nebraska Supreme Court struck down electrocution as a method of execution in the state of Nebraska in the case of State v. Mata (underwhelming opinion would be attached here, but I can't find it at the moment, and I'm lazy).
2) The legislature had not provided an alternative in the event of such a ruling (as opposed to Georgia, where the George Supreme Court struck down electrocution and everyone on death row just got penciled in for a lethal injection appointment).
3) The Nebraska unicameral has twice called for the death penalty to stop and been blocked by gubernatorial veto. Once, in 1979, the state actually voted to eliminate the death penalty. Then-governor Charles Thone vetoed it. In 1999, the unicameral voted for a moratorium on the death penalty, which Governor (until recently, Secretary of Agriculture, apparently anticipating a need for fertilizer?) Mike Johanns vetoed it.
4) Jon Bruning already fought this battle in the Unicameral and lost. He fought to change the method of execution in the state of Nebraska to lethal injection, fearing that electrocution would be ruled unconstitutional. Blocked primarily by death penalty abolitionists -- people who thought (rightly) that maintaining electrocution would mean Nebraska would simply refuse to execute people or be unable to carry out a death sentence -- he lost and Nebraska remained the only state in the United States with electrocution as its sole method of execution. No dispute about legislative intent.
5) Sentencing orders often stipulate a method of execution. There can be no doubt that you're entitled to rely upon a sentencing order. If your sentencing order says you're in a federal penitentiary, they can't ship you off to state prison. If your sentencing order says 20 years, they don't get to keep you for 30. And if your sentencing order says "death by stoning" and stoning is invalidated, you don't just get to white out the "by stoning" part and start anew with whatever punishment you can concoct.
6) The legislature has still not stipulated a method of execution, so even if you were to argue that those whose sentencing orders did not specify electrocution were still subject to the death penalty (and I would argue that the precedent the Supreme Court set in Furman v. Georgia indicates that no one in Nebraska should be regarded as under a death sentence unless they were convicted after the Nebraska Supreme Court ruling in State v. Mata), you definitely don't get to execute anyone unless you can figure out how to do it with pure confusion.
7) Incidentally, the Nebraska Supreme Court disagrees with me on the last point, having reaffirmed Raymond Mata's death sentence while stating that his execution by electrocution would be unconstitutional. However, the Court also assumes that the method-of-execution statute is entirely severable from the procedures by which the court sentenced Mata. Of course, if Mata's sentencing order said "death by electrocution", you really have to be willfully blind to actually believe that to be the case.
8) I absolutely love that CNN reports Nebraska would consider the gas chamber. The gas chamber itself has already been struck down in courts and is used as the sole method of execution in zero states. While it would stand up in the Roberts court, which has prescribed a new analysis of the Eighth Amendment that essentially writes it out of existence, I have serious doubts that the Nebraska Supreme Court would accept it as an alternative, and I suspect it may be the only alternative the unicameral WILL support, given its tendency to staunchly limit the death penalty rather than put in an express lane to the death house.

Lastly, a note to CNN, I don't give a damn what the parents of victims have to say about the Eighth Amendment. JoAnn Brandon, if you want revenge, then do it. Go and gun down your daughter's murderers during the middle of their trial, and you can feel vindication and know that you're little better than the people who killed your son or daughter. If JoAnn Brandon wants to watch the killers of her daughter suffer, then she is free to do whatever she can to make that happen and will be punished accordingly. But CNN, don't put in your bloody-shirt waving into an article about an amendment that is supposed to make our government a more reasoned body than its individual components. No one disputes that murderers deserve to be punished harshly. But it's not the state's job to exact anyone's revenge, and if that's what you think they're doing, then you need to pay the costs of this execution, which are enormous. I know many would disagree, but it's not the state's job to be killing people, regardless of whether it involves torture.

The Should-Be All-Star Game - NL Edition

Arizona: Brandon Webb, Dan Haren
Atlanta: Chipper Jones*, Brian McCann*
Chicago: Geovany Soto, Kerry Wood
Cincinnati: Edinson Volquez*, Adam Dunn
Colorado: Matt Holliday*, Taylor Buchholz
Florida: Hanley Ramirez*, Dan Uggla
Houston: Lance Berkman*
Los Angeles: Russell Martin
Milwaukee: Ben Sheets, Ryan Braun
New York: David Wright, Johan Santana, Billy Wagner
Philadelphia: Chase Utley*, Pat Burrell*, Cole Hamels, Brad Lidge
Pittsburgh: Xavier Nady, Nate McLouth
St. Louis: Albert Pujols, Ryan Ludwick
San Diego: Adrian Gonzalez
San Francisco: Tim Lincecum
Washington: Cristian Guzman

Catchers (3): Brian McCann*, Geovany Soto, Russell Martin
First Basemen (3): Lance Berkman*, Albert Pujols, Adrian Gonzalez
Second Basemen (2): Chase Utley*, Dan Uggla
Shortstops (2): Hanley Ramirez*, Cristian Guzman
Third Basemen (2): Chipper Jones*, David Wright
Outfielders (7): Xavier Nady*, Pat Burrell*, Matt Holliday*, Adam Dunn, Nate McLouth, Ryan Ludwick, Ryan Braun
Starting Pitchers (7): Edinson Volquez*, Cole Hamels, Brandon Webb, Tim Lincecum, Johan Santana, Ben Sheets, Dan Haren
Relief Pitchers (4): Brad Lidge, Kerry Wood, Billy Wagner, Taylor Buchholz

Toughest calls:
Ryan Braun or Carlos Lee? - Lee's leading the NL in RBIs, but he didn't make my list here. Originally, I'd had Braun added because the Brewers needed a representative, and I hadn't looked at pitching. Lee has the edge based on the superior OPS, but Braun has stolen a couple of bases more and has had a solid defensive season. The breaking point is that Lee's park factor is significantly more favorable than Braun's.

Who for the Nationals? Guzman and Jon Rauch both have arguments here. Rauch is almost as worthy as Billy Wagner in that closer role, but Guzman is only a bit behind Jose Reyes as the second shortstop. It really comes down to my general disdain for putting a closer in the All-Star game for any team that struggles to get a representative and Guzman's role as such a huge component of the Nationals' offense.

Any spot for Brandon Phillips? Poor Brandon Phillips, he's becoming the Travis Hafner of the current generation of players -- the player who's too good to stay home from the All-Star game, but may never make it because of his position. Uggla and Utley are locks, so there's just no room for an .826 OPS, 50 runs, 14 HR, 54 RBI, 17 SB player. While there's an argument to make an extra spot on the roster at second base instead of catcher (leaving Soto behind), the production from Soto is hard to overlook just because the Dodgers lack an obvious choice.

Most overrepresented: Washington Nationals – They’re not even close to having an All-Star. It’s either Guzman or Jon Rauch. Rauch has had a decent season but wouldn’t necessarily beat out any of the relievers for the roster (though the Gregg spot could go to any number of players, Guzman’s not actually the second best candidate at shortstop over Jose Reyes or Jimmy Rollins). The Phillies have the most players, but Utley’s a lock to play (not to start, he and Uggla are pretty close on that score), Burrell’s got an OPS greater than 1.000, and Lidge is the best pitcher in baseball thus far this season. So unless you want to nit pick Cole Hamels (good luck with that), there’s no doubt they’re worthy guys.

Most underrepresented: There’s a lot of teams that could claim they warrant one more player on the team. The New York Mets could claim three players are worthy on a stats-only basis. Jose Reyes and Carlos Beltran are having fine seasons, but they don’t do enough to get inclusion in the face of the every-team-gets-a-representative rule. At one point, Ryan Church was the only worthy player on the team, so things have changed.

The jury hung on: Which Pirates outfielders? - Xavier Nady was the best on the numbers, but McLouth and Bay are basically identical. McLouth has driven in more runs, Bay has an OPS 20 points higher. I went with McLouth because he's a newcomer, another all-star game doesn't mean much to Bay until he gets subjected to retarded Hall of Fame voters in two decades who will ask how many All-Star games he played in.

The Should-Be All-Star Game - AL Edition

Rather than kick off this blog with something about law, we might as well devolve it from the outset.

So, it's that time of year, the time that enables people to make specious arguments about who belongs in the Hall of Fame based on a selection process run by two groups of people who are usually hostile to research -- fans and major league managers.

Before the atrocious votes that land Jason Varitek on an all-star team come in...I'll give you the list of the 30 people that should make the roster given the other rules and the usual position allotment.


Baltimore (1): Brian Roberts
Boston (3): Kevin Youkilis, Manny Ramirez, J.D. Drew
Chicago (2): Carlos Quentin*, Jermaine Dye
Cleveland (4): Cliff Lee*, Grady Sizemore, Jhonny Peralta, C.C. Sabathia
Detroit (1): Carlos Guillen
Kansas City (2): David DeJesus, Joakim Soria
Los Angeles (2): Francisco Rodriguez, Joe Saunders
Minnesota (3): Joe Mauer, Justin Morneau, Joe Nathan
New York (3): Jason Giambi*, Alex Rodriguez*, Mariano Rivera
Oakland (2): Justin Duchscherer, Rich Harden
Seattle (1): Brandon Morrow
Tampa Bay (3): Dioner Navarro, Evan Longoria, Scott Kazmir
Texas (4): Milton Bradley* (DH), Josh Hamilton*, Ian Kinsler*, Michael Young*
Toronto (1): Roy Halladay

Catchers (2): Joe Mauer*, Dioner Navarro
First Basemen (3): Jason Giambi*, Kevin Youkilis, Justin Morneau
Second Basemen (2): Ian Kinsler*, Brian Roberts
Shortstop (2): Michael Young*, Jhonny Peralta
Third Basemen (2): Alex Rodriguez*, Evan Longoria, Carlos Guillen
Outfield/DH (7): Josh Hamilton*, Milton Bradley (DH)*, Carlos Quentin*, Grady Sizemore*, J.D. Drew, David DeJesus, Jermaine Dye, Manny Ramirez
Starting Pitchers (7): Cliff Lee*, Justin Duchscherer, Roy Halladay, Rich Harden, Scott Kazmir, Joe Saunders, C.C. Sabathia
Relief pitchers (5): Mariano Rivera, Francisco Rodriguez, Brandon Morrow, Joakim Soria, Joe Nathan

Close calls:
Sabathia over Beckett - Like last year's Cy Young dispute, only this time, there's actually a dispute to be had. Sabathia had an awful April, which we can't write off entirely. But he's been the dominant starter at times this year, Beckett has been...good. That's it. Beckett doesn't go deep into games, and despite Sabathia being the most hittable pitcher on earth for one month, he's pitched 22 innings more than Beckett. He's also got a huge edge in strikeouts (22). Working in Beckett's favor is that the Indians don't warrant having this many All-Stars...they're a last place team...and Sabathia will get traded to the NL twelve seconds after making the team. Francona may choose Beckett for the honor, or he may just load up his team with other AL rosters' players in order to give his guys a rest. The real solution here is to take the pitcher who most deserves to be on the team (if he'd stayed healthy) over both these guys, but John Lackey's made a whopping nine starts.

#2 shortstop - Let's be frank, zero shortstops deserve to play in the All-Star Game in the American League. ZERO. But two will, just because that's how things work. Young is the clear winner. The second place finisher is a close contest offensively, but the tell-all number slightly favors Peralta.

Peralta: .253 avg, .303 OBP, 47 runs, 12 HR, 36 RBI, .747 OPS
Jeter: .279 avg. (+.026), .342 OBP (+.039), 48 runs (+1), 4 HR (-8), 35 RBI (-1), .736 OPS (-.011)

The first two categories scream "Jeter!". Then you look at the punchless slugging of Jeter and it becomes a lot more even. Moreover, while it's not entirely fair to punish a player for being on a good team, providing the kind of numbers Jeter gets is a heck of a lot easier when you have Bobby Abreu OPS .802 right behind you followed by Alex Rodriguez (for most of the season). Then...Matsui, Posada (about half the season), Jason Giambi, hell, even Wilson Betemit (also superior OPS to Jeter, so perhaps the Yankees should be considering a switch at shortstop?).

As much as this has been a down year for Abreu, his .802 OPS would make him the third best eligible hitter on the Indians squad. He's the fifth on the Yankees. That kind of production really inflates Jeter's opportunity to get good pitches to hit, since they'd rather take their chances with him. Peralta has the comfort of knowing that batting behind him has been the likes of Ryan Garko (and his satanic .666 OPS).

The difference in defense is pretty surprising, even to someone who regards Jeter as the most overrated player in baseball. Jeter just doesn't get to balls. Period. Range factor of 4.01, zone rating of .828. Compare that to Peralta -- Range factor of 4.72! and a zone rating of .833. The range factor owes in part to the Indians' sinkerballing pitchers Carmona and Westbrook, both of whom are on the DL, so it may not be just that (that said, there is still Aaron Laffey), but even with that zone, Peralta gets to more balls, and has a superior fielding percentage, to the questionable extent that should even be considered. Peralta's also been more involved in double plays (57 to Jeter's 38), but this again may be tainted by the sinker-oriented staff the Indians have -- I doubt the difference is that vast. Answer: it isn't. The Indians have turned 96 double plays, 57 involving Peralta (59%), the Yankees have turned 74 (38 of which involved Jeter (51.3%). So Peralta is probably a notch better at turning double plays.

This is all mooted by the first point I made...the people voting for this rarely care about baseball reality -- they vote for people they know, people who they see on TV, people who are on their favorite teams. This means Jeter has been elected to the All-Star game, though in fact, he's the third best candidate, and this year, that makes him (like Peralta) utterly unworthy of the All-Star nod.

#2 Catcher Rather than belabor this point, Navarro has played most of his team's games, Rod Barajas has been a fill-in who's not even eligible for the batting title. Navarro also plays for a team who's underrepresented by the roster I've cobbled together, which breaks the tie.

Relief pitchers other than Brandon Morrow - Soria and Nathan have ERAs below 1.40. That's hard to do. So they win out over Papelbon, who's been great and all...but doesn't have the ridiculous Bobby Thigpen-like season of K-Rod (34 saves) or the eye-popping ERA. Brandon Morrow has an 0.71 ERA, has been dominant and is the ONLY Mariner worthy of one second's worth of consideration for the All-Star Game. Alas, Japanese voters will probably land Ichiro another start.

Most overrepresented: easily the Cleveland Indians. While the Rangers have the same number and are also not playing well, every one of their players is a lock in a just and fair baseball universe, while I could argue that the only Indians player who should make the team is Cliff Lee (who should, undoubtedly, start the All-Star Game, but will inevitably be passed over for someone like Josh Beckett). Sizemore has a pretty strong argument with OPS, HR, SB, and production on a lousy offensive team, but he's no lock in a strong outfield year.

Most underrepresented: The Red Sox have a claim that Pedroia should make the team (he shouldn't, since he plays second base and shortstop), Julio Lugo's not far off the lousy second string shortstops, Mike Lowell's not far behind Evan Longoria, Josh Beckett isn't an awful choice to make the team, and Papelbon has a resume that's better than K-Rod's in all but the number of saves.

The Jury's Hung on: Leaving off John Lackey - John Lackey has been one of the best pitchers in the league since he came off the DL, but nine starts is just not enough. I'm stretching it to include both Rich Harden and Scott Kazmir, so it makes it hard to draw a line.

Hung Like A Jury

Welcome to Hung Like A Jury. This will pick up where blogaboutfederalism left off...which is to say it's a blog that no one but me will read, I'll tire of it quickly, and we'll likely learn little about the law and a lot about how much time I devote to sports analysis.

Also, if you're the asshole who bought www.hunglikeajury.com and then didn't post anything except some backdated entries that say nothing, cease and desist. I have absolutely no legal case against you...but there's got to be a state without a Rule 11.