User:Simon Dodd/Sandbox

Wasilla city council
Motivated by concerns that revenue from a new Wasilla sales tax would not be spent wisely, Palin was elected to the city council of Wasilla in 1992. She won 530 votes to 310. She ran for reelection in 1995, winning by 413 votes to 185, but did not complete her second term on the city council because she was elected mayor in 1996. Throughout her tenure on the city council and the rest of her career, Palin has been a registered Republican.

Mayor of Wasilla
Palin served two three-year terms (1996–2002) as the mayor of Wasilla. In 1996, she defeated three-term incumbent mayor John Stein, on a platform targeting wasteful spending and high taxes. Stein says that Palin introduced abortion, gun rights, and term limits as campaign issues. Although the election was a nonpartisan blanket primary, the state Republican Party ran advertisements on her behalf. At the conclusion of Palin's tenure as mayor in 2002, the city had about 6,300 residents. In 1998, Wasilla's mayor credited Palin's tax cuts and infrastructural improvements with helping the local economy, "br[inging] the big-box stores to Wasilla, ... helping Wasilla grow and draw 50,000 shoppers a day." The Boston Globe quoted a local business owner as crediting Palin with making the town "more of a community ... It's no longer a little strip town that you can blow through in a heartbeat."

First term
Shortly after taking office in October 1996, Palin consolidated the position of museum director and asked for updated resumes and resignation letters from "city department heads who had been loyal to Stein," including the police chief, public works director, finance director, and librarian. Palin stated this request was to find out their intentions and whether they supported her. She temporarily required department heads to get her approval before talking to reporters, saying that they first needed to become acquainted with her administration's policies. She created the position of city administrator, and reduced her own $68,000 salary by 10%, although by mid-1998 this was reversed by the city council.

During her first year in office, Palin kept a jar with the names of Wasilla residents on her desk. Once a week, she pulled a name from it and picked up the phone; she would ask: "How's the city doing?" Using income generated by a 2% sales tax that was enacted before she was elected to the city council, Palin cut property taxes by 75% and eliminated personal property and business inventory taxes. Using municipal bonds, she made improvements to the roads and sewers, and increased funding to the Police Department. She also oversaw new bike paths and procured funding for storm-water treatment to protect freshwater resources. At the same time, the city reduced spending on the town museum and stopped construction of a new library and city hall.

Palin ran for re-election against Stein in 1999 and won, with 74% of the vote. She was also elected president of the Alaska Conference of Mayors.

Second term
During her second term as mayor, Palin introduced a ballot measure proposing the construction of a municipal sports center to be financed by a 0.5% sales tax increase. The $14.7 million Wasilla Multi-Use Sports Complex was built on time and under budget, but the city spent an additional $1.3 million because of an eminent domain lawsuit caused by the failure to obtain clear title to the property before beginning construction. The city's long-term debt grew from about $1 million to $25 million through voter-approved indebtedness of $15 million for the sports complex, $5.5 million for street projects, and $3 million for water improvement projects. A city council member defended the spending increases as being caused by the city's growth during that time.

Palin also joined with nearby communities in jointly hiring the Anchorage-based lobbying firm of Robertson, Monagle & Eastaugh to lobby for federal funds. The firm secured nearly $8 million in earmarked funds for the Wasilla city government. Earmarks included $500,000 for a youth shelter, $1.9 million for a transportation hub, and $900,000 for sewer repairs. Term limits in the Wasilla Municipal Code proscribe candidates from running for more than two consecutive terms.

Controversies
Wasilla librarian Mary Ellen Emmons has said that Palin inquired two or three times in October 1996 as to how Emmons would handle any request to remove books from the library. John Stein, the former mayor of Wasilla and Palin's 1996 political opponent, said in September 2008 that Palin's "religious beliefs," and the concerns of some voters about language in the books, motivated her inquiries. In December 1996, Palin said she had no books or other material in mind for removal. No books were removed from the library, and Palin stated in 2006 that she would not allow her personal religious beliefs to dictate her political positions.

Palin fired Emmons and Police Chief Irl Stambaugh in January 1997, stating that she did not feel they fully supported her efforts to govern the city. The next day, following expressions of public support for Emmons and a personal meeting, Palin rescinded the firing of Emmons, stating that her concerns had been alleviated, and adding that Emmons agreed to support Palin's plan to merge the town's library and museum operations. Stambaugh, who along with Emmons had supported Palin's opponent in the election, filed a lawsuit alleging wrongful termination, violation of his contract, and gender discrimination. In the trial, the defense alleged political reasons; Stambaugh said that he had opposed a gun control bill, Alaska HB 270, that Palin supported. The federal judge said in the decision that the police chief serves at the discretion of the mayor, and can be terminated for nearly any reason, even a political one, and dismissed Stambaugh's lawsuit ordering Stambaugh to pay Palin's legal fees.

Palin appointed Charles Fannon to replace Stambaugh as police chief.

Post-mayoral years
In 2002, Palin ran for the Republican nomination for lieutenant governor, coming in second to Loren Leman in a five-way Republican primary. The Republican ticket of U.S. Senator Frank Murkowski and Leman won the November 2002 election. When Murkowski resigned from his long-held U.S. Senate seat in December 2002 to become governor, he considered appointing Palin to replace him in the Senate, but chose his daughter, State Representative Lisa Murkowski.

Governor Murkowski appointed Palin to the Alaska Oil and Gas Conservation Commission. She chaired the Commission beginning in 2003, serving as Ethics Supervisor. Palin resigned in January 2004, protesting what she called the "lack of ethics" of fellow Republican members.

After resigning, Palin filed a formal complaint against Oil and Gas Conservation Commissioner Randy Ruedrich, also the chair of the state Republican Party, accusing him of doing work for the party on public time and of working closely with a company he was supposed to be regulating. She also joined with Democratic legislator Eric Croft to file a complaint against Gregg Renkes, a former Alaskan Attorney General, accusing him of having a financial conflict of interest in negotiating a coal exporting trade agreement, while Renkes was the subject of investigation and after records suggesting a possible conflict of interest had been released to the public. Ruedrich and Renkes both resigned and Ruedrich paid a record $12,000 fine.

From 2003 to June 2005, Palin served as one of three directors of "Ted Stevens Excellence in Public Service, Inc.," a 527 group designed to provide political training for Republican women in Alaska. In 2004, Palin told the Anchorage Daily News that she had decided not to run for the U.S. Senate that year, against the Republican incumbent, Lisa Murkowski, because her teenage son opposed it. Palin said, "How could I be the team mom if I was a U.S. Senator?"

Majority or lead opinions for divided panels
[cont]
 * United States v. Ligas, 549 F.3d 497 (7th Cir. 2008)
 * McKinney v. Cadleway, 548 F.3d 496 (7th Cir. 2008)
 * EEOC v. Lee's Log Cabin, 2008 U.S. App. LEXIS 20998 (7th Cir. 2008) (Amended by, Rehearing denied by, Rehearing, en banc, denied by EEOC v. Lee's Log Cabin, Inc., 554 F.3d 1102, 2009 U.S. App. LEXIS 2288 (7th Cir. Wis., Feb. 2, 2009))
 * Andrews v. Chevy Chase Bank, 545 F.3d 570 (7th Cir. 2008)
 * Musollari v. Mukasey, 545 F.3d 505 (7th Cir. 2008)
 * United States v. Henderson, 536 F.3d 776 (7th Cir. 2008)
 * Rawoof v. Texor, 521 F.3d 750 (7th Cir. 2008)
 * Warren v. Solo Cup Co., 516 F.3d 627 (7th Cir. 2008)

Separate opinions

 * Casey K. v. St. Anne Community High Sch. Dist. No. 302, 400 F.3d 508 (7th Cir. 2005) (dissent)
 * United States v. O'Neill, 437 F.3d 654 (7th Cir. 2006) (dissent)
 * In re United Airlines, 438 F.3d 720 (7th Cir. 2006) (concurring in part and dissenting in part)
 * Johns v. Laidlaw Ed. Serv.,199 Fed. Appx. 568 (7th Cir. 2006) (dissent)
 * Currie v. Paper Converting Machine Co., 202 Fed. Appx. 120 (7th Cir. 2006) (concurrence)
 * Loubster v. Thacker, 440 F.3d 439 (7th Cir. 2006) (concurring in part and dissenting in part)
 * Laskowski v. Spellings, 443 F.3d 930 (7th Cir. 2006) (dissent), vacated sub nom. Notre Dame v. Laskowski, 127 S. Ct. 3051 (2007)
 * Winkler v. Gates, 481 F.3d 977 (7th Cir. 2007) (concurrence)
 * IBEW v. Ill. Bell Telephone Co., 491 F.3d 685 (7th Cir. 2007) (dissent)
 * Mainstreet Org. of Realtors v. Calumet City, 505 F.3d 742 (7th Cir. 2007) (concurrence)

(question: do Johns and Currie, which would both dismiss the appeals for noncompliance with Rule 28 of the Federal Rules of Appellate Procedure, suggest a proceduralist bent?)

Law review articles

 * Hallows Lecture: Reflections on the Wisconsin Supreme Court, 89 Marq. L. Rev. 723 (2006)
 * "Of a Judiciary Nature": Observations on Chief Justice Roberts's First Opinions, 34 Pepp. L. Rev. 1027 (2007)
 * Religious Liberties: The Role of Religion in Public Debate, 20 Regent U. L. Rev. 301 (2008) (introductory remarks)
 * Citation to Unpublished Orders Under New FRAP Rule 32.1 and Circuit Rule 32.1: Early Experience in the Seventh Circuit, 32 S. Ill. U. L. J. 579 (2008)
 * Independence versus Accountability: Finding a Balance Admidst the Changing Politics of State Court Judicial Selection, 92 Marq. L. Rev. 341 (2008)

[Kerney intro to hallows: Welcome to this year's Hallows Lecture at Marquette University Law School - or at Marquette University, and close to the Law School. It is my privilege as Dean of the Law School to introduce both the lecture and the speaker.

I wish to begin with the individual in whose memory this lecture stands. The Honorable E. Harold Hallows served as a member of the Wisconsin Supreme Court from 1958 to 1974, concluding his tenure as Chief Justice of the Court. These were years in which the legal system faced profound challenges and changes. I am referring not only to the larger societal changes, which are well known and chronicled, but also to developments in legal doctrine. Important areas of the law, including aspects of constitutional law, criminal procedure, and tort law, bore only a dim resemblance at the end of this period to what had existed in 1958. Justice Hallows played a significant role in these developments on the Wisconsin front.

But it would be incorrect to suggest that this judicial work was the extent of Justice Hallows's contribution to the Wisconsin legal system. For several decades prior to his appointment to the Wisconsin Supreme Court, Justice Hallows was Professor Hallows at Marquette University Law School. A whole generation of students took courses such as Equity from Professor Hallows. This was accompanied throughout by both a successful private practice in Milwaukee and a leadership role in the state bar and efforts to reorganize the judiciary. The career of Justice Hallows, who attended Marquette University as an undergraduate and the University of Chicago for law school, was distinguished by substantial contributions to the bar, the academy, and the judiciary.

Over the past decade the Law School has held an annual Hallows Lecture in the late Chief Justice's memory. We have brought to campus (and to Milwaukee) such individuals as Judge Guido Calabresi, Justice Antonin Scalia, and Chief Justice Shirley Abrahamson. This year's speaker is the Honorable Diane Sykes, of the United States Court of Appeals for the Seventh Circuit. Judge Sykes is well known to this community and scarcely needs elaborate introduction, but permit me to say a few words nonetheless. If they are brief, it is both because I am not the feature here and because I used up all my best lines at Judge Sykes's most recent investiture.

Diane Sykes is a native of Milwaukee, a graduate of Northwestern University with a journalism degree, and a Marquette lawyer, Class of 1984. After clerking on the federal district court for one year and working in private practice for seven years, she became Judge Sykes in 1992, by winning a contested election for a seat on the Milwaukee County Circuit Court. Judge Sykes served in this position until 1999, when the Governor of Wisconsin appointed her to the Wisconsin Supreme Court, a position to which the voters of the State then elected her in 2000 to a full term. Now-Justice Sykes was forceful and influential during this tenure. The Court was closely divided on a number of matters - many of them in the same areas as I mentioned with respect to Justice Hallows's tenure: constitutional law, criminal procedure, and tort law. These areas of the law will always be with us (and a good thing for the legal profession, I should hasten to add). I would not wish to suggest that Justice Sykes's position always prevailed, still less that she and Justice Hallows would have made much common cause had they served on the Court together. But none would doubt the significance of Justice Sykes's work on the Wisconsin Supreme Court.

In 2004, Justice Sykes became Judge Sykes again, after the United States Senate confirmed the President's nomination of her to the United States Court of Appeals for the Seventh Circuit. Judge Sykes is an increasingly national figure, frequently called upon to speak across the country, but she remembers her alma mater as well, including through the important work of permitting law school interns each semester in her chambers. We are very grateful that today, once again, she is with us at Marquette, as this year's Hallows Lecturer. Please welcome the Honorable Diane S. Sykes.]

Further reading: David Raimer, Damages and Damocles: the Propriety of Recoupment Orders as Remedies for Violations of the Establishment Clause, 83 Notre Dame L. Rev. 1385 (2008) (discussing Laskowski)

Kendra Williams, Congress Giveth, and the Courts Taketh Away: Is Restitutionary Recoupment of Federal Funds a Proper Remedy When Taxpayers Allege that an Expired Statute Violated the Establishment Clause?, 35 Pepp. L. Rev. 1029 (2008)

Ira C. Lupu & Robert W. Tuttle, Rockefeller Institute of Government, The State of the Law 2006: Legal Developments Affecting Government Partnerships with Faith-Based Organizations 95, Dec. 2006, http://www.religionandsocialpolicy.org/docs/legal/reports/ State of the Law 2006.pdf

laskowski
FREEDOM FROM RELIGION FOUNDATION, INC., et al., Plaintiffs-Appellants, v. ELAINE L. CHAO, Secretary of Department of Labor, et al., Defendants-Appellees.

No. 05-1130

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

447 F.3d 988; 2006 U.S. App. LEXIS 10942

May 3, 2006, Decided

PRIOR HISTORY: [**1]  Appeal from the United States District Court for the Western District of Wisconsin. 04 C 0381S. John C. Shabaz, Judge. Freedom from Religion Found., Inc. v. Chao, 433 F.3d 989, 2006 U.S. App. LEXIS 811 (7th Cir. Wis., 2006)

CORE TERMS: en banc, expenditure, complain, nexus, religion, religious institutions, public land, appropriation, deliberation, proclamations, governance, entertain, spending, logical, deliver, outlays, deem, hear

COUNSEL: For FREEDOM FROM RELIGION FOUNDATION, INCORPORATED, ANNE GAYLOR, ANNIE L. GAYLOR, DAN BARKER, Plaintiffs - Appellants: Richard L. Bolton, BOARDMAN, SUHR, CURRY & FIELD, Madison, WI USA.

For ELAINE L. CHAO, TOMMY G. THOMPSON, ALBERTO R. GONZALES, Defendants - Appellees: Lowell Sturgill, DEPARTMENT OF JUSTICE, Civil Rights Division, Appellate Section, Washington, DC USA.

JUDGES: Before Hon. Joel M. Flaum, Chief Judge, Hon. Richard A. Posner, Circuit Judge, Hon. Frank H. Easterbrook, Circuit Judge, Hon. Kenneth F. Ripple, Circuit Judge, Hon. Daniel A. Manion, Circuit Judge, Hon. Michael S. Kanne, Circuit Judge, Hon. Ilana Diamond Rovner, Circuit Judge, Hon. Diane P. Wood, Circuit Judge, Hon. Terence T. Evans, Circuit Judge, Hon. Ann Claire Williams, Circuit Judge, Hon. Diane S. Sykes, Circuit Judge. Chief Judge Flaum and Judge Easterbrook concurring in the denial of the petition for rehearing en banc. Judge Ripple, Judge Manion, Judge Kanne, and Judge Sykes join dissenting from the denial of the petition.

OPINION

[*988] ORDER On March 13, 2006, defendants-appellees [**2] filed a petition for rehearing with suggestion of rehearing en banc. A vote of the active members of the Court was requested, and a majority has voted to deny the petition.* The petition is therefore DENIED.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
 * Chief Judge Flaum and Judge Easterbrook have written opinions concurring in the denial of the petition for rehearing en banc. Judge Ripple has written an opinion, which Judge Manion, Judge Kanne, and Judge Sykes have joined, dissenting from the denial of the petition.

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

CONCUR BY: FLAUM; EASTERBROOK

CONCUR

FLAUM, Chief Judge, concurring in the denial of rehearing en banc. Along with Judge Easterbrook, my vote to deny the petition for rehearing en banc is not premised upon a conclusion that the taxpayer standing issue as addressed in the panel opinion is free from doubt. Indeed, the position set forth in the dissent is one which could eventually command high court endorsement. However, the obvious tension which has evolved in this area of jurisprudence, as evidenced by the scholarly opinions of Judge Posner [**3] and Judge Ripple, can only be resolved by the Supreme Court. In my judgment, the needed consideration of this important issue by that tribunal would be unnecessarily delayed by our further deliberation.

[*989] EASTERBROOK, Circuit Judge, concurring in the denial of rehearing en banc. My vote to deny the petition for re-hearing en banc does not imply that I deem the panel's resolution beyond dispute or the issue unimportant. To the contrary, the subject is both recurring and difficult, and there is considerable force in Judge Ripple's dissent, 433 F.3d 989, 997-1001 (7th Cir. 2006), and in the standing analysis of Judge Sykes's dissent from Laskowski v. Spellings, 443 F.3d 930, 2006 U.S. App. LEXIS 9276, No. 05-2749 (7th Cir. Apr. 13, 2006), slip op. 19-28, which extends this panel's holding. Two divided decisions on related matters that put the judicial and the political branches of the federal government at odds imply the wisdom of further review. My vote to deny rehearing rests on a conclusion that this is not the right forum for that further deliberation.

The principal difficulty with arguments pro and con about taxpayer standing is that the doctrine is arbitrary. Taxpayers lack standing to complain about [**4] almost all expenditures. Flast v. Cohen, 392 U.S. 83, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1968), held that taxpayer suits about religious outlays are special but declined to overrule Massachusetts v. Mellon, 262 U.S. 447, 43 S. Ct. 597, 67 L. Ed. 1078 (1923), which holds that taxpayers lack standing to complain about public expenditures. To the extent that the Establishment Clause forbids taxation to support religion, people subject to the illegal levy may obtain relief, but plaintiffs in this litigation do not say that they have paid one extra penny because of the grant. Where's the concrete injury? The loss (if any) is mental distress that plaintiffs, who are bystanders to the challenged program, suffer by knowing about conduct that they deem wrongful. Article III does not permit courts to entertain such complaints. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992); Allen v. Wright, 468 U.S. 737, 104 S. Ct. 3315, 82 L. Ed. 2d 556 (1984); Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 96 S. Ct. 1917, 48 L. Ed. 2d 450 (1976); United States v. Richardson, 418 U.S. 166, 94 S. Ct. 2940, 41 L. Ed. 2d 678 (1974); Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 94 S. Ct. 2925, 41 L. Ed. 2d 706 [**5] (1974). Cf. Metro-North Commuter R.R. v. Buckley, 521 U.S. 424, 117 S. Ct. 2113, 138 L. Ed. 2d 560 (1997). Yet Flast has so far resisted efforts either to cabin it or to incorporate its approach into a more general framework of justiciability.

Our panel's majority has concluded that the doctrine of taxpayer standing will be more logical if it covers administrative as well as legislative earmarks. I grant that proposition -- but comprehensiveness and rationality are not this doctrine's hallmarks. Why may taxpayers complain about outlays of cash but not about a distribution of real or personal property? See Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 102 S. Ct. 752, 70 L. Ed. 2d 700 (1982). Cash may be exchanged for property or the reverse; a distinction between cash and property for the purpose of standing is illogical but embedded in the cases.

Why may taxpayers complain about modest expenditures (the grant in Laskowski was $ 500,000, or less than a cent per U.S. taxpayer) but not about slightly smaller ones? According to the panel, a complaint that the President used the State of the Union Address to promote [**6] religion is not justiciable. The panel dismissed a claim against the Secretary of Education that rested on the expense that the Secretary had incurred to deliver a speech. See 433 F.3d at 995-96. The total cost of presidential proclamations and speeches by Cabinet officers that touch on religion (Thanksgiving and several other [*990] holidays) surely exceeds $ 500,000 annually; it may cost that much to use Air Force One and send a Secret Service detail to a single speaking engagement. If money from the Treasury is to supply the identifiable trifle for standing, then the only tenable line is between $ 0 (no cost to taxpayers as a whole) and $ 1 (some cost, however dilute); yet the panel draws a line between $ 500,000 and $ 50,000 or $ 5,000 (even if there are lots of speeches or proclamations at $ 5,000 or $ 50,000 apiece). Where is the coherence in such a doctrine? That no court is willing (yet!) to entertain a suit about a speech that costs $ 50,000 to draft, deliver, and distribute through the Government Printing Office -- while adjudicating objections to $ 500,000 grants that do not cost the plaintiff even 1 [cent] -- suggests problems in Flast's underpinning and application.

[**7] Perhaps Michael Newdow should have invoked his tax return, rather than his status as a father, to challenge the inclusion of "under God" in the Pledge of Allegiance. What is the price tag in both money and the opportunity cost of time to print many million copies of that phrase and read it daily in thousands of classrooms? As it was, however, the Supreme Court deemed his suit non-justiciable. See Elk Grove Unified School District v. Newdow, 542 U.S. 1, 124 S. Ct. 2301, 159 L. Ed. 2d 98 (2004).

But this arbitrariness is built into the doctrine as it comes to us. Nothing we can do would eliminate the tension between Flast and Bowen v. Kendrick, 487 U.S. 589, 108 S. Ct. 2562, 101 L. Ed. 2d 520 (1988), on the one hand, and Frothingham and Valley Forge (plus the many cases such as Defenders of Wildlife) on the other. The problem is not of our creation and cannot be resolved locally. There is no logical way to determine the extent of an arbitrary rule. Only the rule's proprietors can bring harmony -- whether by extension or contraction -- or decide to tolerate the existing state of affairs.

2005

41 Willamette L. Rev. 941

LENGTH: 13615 words

LABORATORIES OF DEMOCRACY: FEDERALISM AND STATE LAW INDEPENDENCY: ARTICLE: COLLAPSING SPHERES: JOINT TERRORISM TASK FORCES, FEDERALISM, AND THE WAR ON TERROR

Traditional marriage movement ‎


Wikipedia doesn't run on simple majority voting. The admin's deletion guidelines confirm that "[c]onsensus is not determined by counting heads," and while a closing admin may "disregard opinions and comments if they feel that there is strong evidence that they were not made in good faith, ... contradict policy, are based on opinion rather than fact, or are logically fallacious," they are supposed to call AfDs based on their best judgment of the Rough consensus, i.e. the "sense of the group" or the "dominant view." Deletion requires affirmative consensus to delete; without it, the result defaults to a no consensus close.

That is not what happened when Articles for deletion/Traditional marriage movement was closed. Eighteen people !voted (i.e. made or joined arguments on either side). Ten supported the nomination, eight opposed. If we went by majority vote, the ayes had it, 55% to 45% - but we don't work by majority vote. We work by consensus, and there wasn't one favoring deletion. The closing admin, however, counted the heads and declared there to be a consensus to delete. That was error (an incorrect interpretation of the debate in WP:DRV's argot), and it should be overturned here.

"An option preferred by 51% of people is generally not enough for consensus" (WP:WHATISCONSENSUS), and that "[i]f the discussion failed to reach consensus, then the article is kept by default" as a no consensus keep (WP:DPR). If 51% is not consensus to delete, how can it follow that 55% is consensus to delete? It does not. And other nominations confirm that the closing admin found consensus where it is not commonly found. Here, the ratio of delete:keep was 5:4, which is typically well within the range where no consensus closes are the appropriate result. See, e.g. (3:1);  (3:2);  (approx. 2:1);  (also 9:8);  (1:1). DRV has overturned mistaken delete closes with even more lopsided margins than 5:4, too; for instance, in Articles for deletion/New Zealand – Pakistan relations, the tally was 2:1 to delete, and the closing admin closed as delete. But that was overturned on review and amended to a no consensus close, see. From the other side of the looking glass, a 4:5 tally that was closed as delete was recently overturned to no consensus.

Although the vote tally is not conclusive, it can be a proxy for rough consensus. (Indeed, it is impossible to decide which view is dominant without considering how many support or reject it.) If there are good arguments on both sides and the !vote tally is close, no consensus is usually the right answer. That was the case here, and a no consensus close was the correct outcome. To make the close yet more egregious, the closing admin made no effort to explain his/her disposition, offering only the perfunctory observation that "The result was delete." The closing admin made no effort to explain how they had reached that conclusion in the face of the deep (and roughly even) division over both the article's fate and the relative strengths of the arguments on either side among the editors who weighed in.

Deletion Review is to be used if the closer interpreted the debate incorrectly. Regardless of which side had the better of this debate in abstracto, the closing admin was plainly wrong in interpreting the debate as reflecting consensus to delete. That decision should be overturned to a no consensus close, the actual result. - Simon Dodd { U·T·C·WP:LAW } 01:56, 20 August 2009 (UTC)

Origins
In the evening of September 27, 1986, Roy Criner, a logger from New Caney, Texas, told his boss (Jeff Pitts) and two friends (Terry Hooker and Michael Ringo) that he had gone to a store in New Caney, picked up a blonde hitchhiker, driven her to threatened to kill her with a screwdriver, raped her, and dropped her off in the vicinity of the logging site. Earlier that evening, Deanna Ogg, a blonde ninth grader, stopped at a store in New Caney to buy cigarettes and told the cashier that "she was going to a party." Approximately fifteen minutes before Criner told Pitts, Ogg's body was found; she had been raped, beaten, and stabbed. The medical examiner concluded that the wounds could have been made with a screwdriver. Five days later, having interviewed Hooker and Ringo, the police arrested Criner for Ogg's murder, later dropping the murder charge and substituting aggravated sexual assault for want of evidence of the former.

When the case came to trial four years later, prosecutors relied primarily on testimony by Pitts, Hooker, and Ringo about Criner's confession. Other evidence, including a cigarette butt found at the scene (Criner didn't smoke, and the brand wasn't Ogg's), and (to the "amaze[ment]" of the appellate court, the screwdriver itself) was not introduced. Nevertheless, the jury convicted Criner and sentenced him to 99 years. On appeal, Criner challenged the aggravating element of the crime, asserting that there was insufficient evidence that Criner was responsible for a head injury to Ogg. A divided panel of the intermediate appellate court agreed, but a divided Court of Criminal Appeals disagreed, and the conviction became final.

The new DNA evidence
In 1997, new DNA testing on semen found in the victim established that the semen was not Criner's.

Criner filed a habeas corpus petition, hoping for a new trial, advancing two arguments: an actual innocence claim based on the new DNA evidence, and a Brady claim. The district court declined to make factual findings on the actual innocence claim, but reccomended that Criner receive a new trial on the basis of the Brady claim. Dividing 5-2,, the Court of Criminal Appeals overturned that decision. It swiftly concluded that the Brady claim was ill-taken, and focussed most of its attention on the "actual innocence" claim."

As the majority saw it, the DNA evidence was irrelevant: "Evidence that the victim had sexual relations with someone other than [Criner] simply is not evidence that [he] is innocent." and testimony was offered that Ogg "had many boyfriends and that she had said that she 'loved sex." An offense report from the original case "reflect[ed] that the deceased had lots of boyfriends and was very sexually active." With what Keller would describe in a later interview as the victim's promiscuity in mind, the court agreed with arguments made by the state during the habeas hearing that the absence of Criner's semen could be explained by use of a condom or coitus interuptus, and concluded that "[t]he DNA evidence shows merely that the victim had sex[ ] with someone other than [Criner] at a time relatively near her death. It does not and cannot exclude the possibility that she also had sex[ ] with [Criner]."

Conversely, the majority thought, the evidence adduced at trial was sufficient for the jury to have convicted Criner. The weightiest evidence, the court thought, was the confessions, but it noted that no other rape had been reported in the area that night and that after his confessions to Pitts, Hooker, and Ringo, Criner had changed his story once the news of Ogg's murder broke.

In Texas, however, an appellate court reviewing an actual innocence claim is required to serve, in many senses, as a proxy for the jury.

The Bush pardon
Following the CAA's refusal to order a new trial, additional DNA evidence was produced. The cigarette butt found at the scene (and not adduced at trial) was subjected to DNA testing. The DNA on the cigarette was not a match for Criner, but it was a match the the semen found in Ogg. Then-Governor George W. Bush pardoned and released Criner.