Issue 344
September 9, 2005
R. v. Dennis
Dennis was a 70-year-old bank robber and career criminal. He pleaded guilty and was convicted of the offence of robbery for a fourth time in June of 2004. He was sentenced to life imprisonment in the Ontario Court of Justice. Justice Wallace imposed a sentence of life imprisonment because he was persuaded that a life sentence provided parole authorities with more flexibility to decide where Mr. Dennis would remain.
Mr. Dennis appealed his sentence, arguing it was excessive and that the trial Judge erred in factoring in parole considerations when determining sentence.
The Court of Appeal agreed that the trial Judge made two errors in principle in deciding the sentence. First the trial Judge approached his task as if his only options were to choose between the sentences proposed either by the Crown or defence counsel. Secondly, the trial Judge failed to take proper consideration of the practical realities having to do with Mr. Dennis’ age. The Court of Appeal held that the trial Judge could have accomplished the same goals he intended to achieve without imposing a life sentence.
The Court made very clear that maximum sentences of any kind are, by their very nature, to be imposed only rarely. The Court did not find that a life sentence was otherwise appropriate in this case, apart from the trial Judge’s concern to ensure that the parole board had flexibility in determining whether, and when, Mr. Dennis should be released back into society.
The Court of Appeal found that a more appropriate sentence would have been one of 16 years with no eligibility for parole for seven years. This sentence was substituted for that of life imprisonment, despite Mr. Dennis’ lengthy criminal record, prior history of release violations, and high risk of re-offending in a violent manner if released.
******
R. v. Galassi, Ontario Court of Appeal, Released September 7, 2005
The Ontario Court of Appeal reviewed a trial Judge’s decision that 19 months of delay were unreasonable and violated the right to a trial within a reasonable time. The Court held that the trial Judge erred in finding there were 19 months of total delay in the Ontario Court of Justice. The trial Judge failed to take into account that a large part of the delay was intake delay and neutral and should not have been counted as part of the institutional delay. The trial judge also failed to consider that defence counsel was not prepared to set a date for the preliminary until he had been properly retained and reviewed the disclosure.
According to the Court of Appeal, the trial Judge properly characterized this time period as intake delay, but failed to deduct this time from the overall period. According to the Court of Appeal the appropriate guidelines are as follows:
In Askov, Cory J., after reviewing comparative statistics suggested that a period in the range of six to eight months between committal and trial would not be unreasonable. Based on the foregoing, it is appropriate for this court to suggest a period of institutional delay of between eight and 10 months as a guide to Provincial Courts. With respect to institutional delay after committal for trial, I would not depart from the range of six to eight months that was suggested in Askov.
To summarize this aspect of the case, the guideline set by the Supreme Court for institutional or systemic delay in the Ontario Court of Justice, is eight to ten months, a period of time that only begins to run after the intake period. Thus, the trial judge erred in holding that the Supreme Court has held that the delay from charge to trial or preliminary inquiry in the Ontario Court of Justice should in most cases not exceed eight to ten months and that the 19 ¼ months delay in that court was twice the maximum permissible limit. He failed to take into account that a period of 7 ¼ months comprised the neutral intake period.
The Court also held that the trial judge erred in isolating the delay in the Ontario Court of Justice from the entire time period. While the delay in the Ontario Court of Justice was lengthy, the authorities moved to ensure that an early trial in the Superior Court of Justice was obtained. The Court held that in considering whether the respondent’s s. 11(b) rights were infringed, the trial judge was required to look at the whole period, not just whether the case met the Morin guidelines in the Ontario Court of Justice.
The Court held that although the 23 months from the date of the charge to the trial date required investigation, the right to a trial within a reasonable time was not violated. In large part when the reasons for the delay are considered and in particular that 8 ¾ months are attributed to neutral intake or inherent time requirements of the case, the delay is not unreasonable.
Finally the Court made the following comments respecting judicial pre-trials, which are worth noting:
I wish to conclude with some comments about the judicial pre-trial. The trial judge was very critical of the use of mandatory judicial pre-trials in all cases where the preliminary inquiry is expected to exceed one day. In his view, there should be more flexibility, so that either the pre-trial is not mandatory or in appropriate cases the pre-trial can be held almost immediately.
In my view, reviewing courts should be very cautious about judging the advisability of steps taken by the Ontario Court of Justice to manage its lists. That court has seen a huge increase in its caseload so that, according to statistics filed in the Morin case, it handles 95 percent of criminal cases in Ontario: see R. v. Morin, at p. 27. It is entirely reasonable that the court attempt to take measures that will reduce the impact of cases that are expected to be a particular burden on resources. The purposes of the judicial pre-trial are, in part, to assist counsel in narrowing the issues, thus reducing the court time needed, and to obtain an accurate estimate of the time required to hear the case. Whether there is potential benefit from and room for some flexibility in the requirement for, and scheduling of, pretrials in the Hamilton Ontario Court of Justice, is principally a matter for that court. That said, I do agree that the delay needed to schedule the judicial pre-trial is properly considered to be institutional delay, not an aspect of the inherent time requirements of the case. See R. v. Chatwell (1998), 122 C.C.C. (3d) 162 (Ont. C.A.) at para. 11.
* * * * *
Custody
After Civil Union Pits States and Judges
By Adam
Liptak, New York Times
MONTPELIER,
Vt., Sept. 7 - Judges in Vermont and Virginia have different ideas about what is
best for Isabella Miller-Jenkins, 3, born to a woman who had a civil union with
another woman in Vermont. The relationship ended two years ago. Now each woman
says Isabella is her daughter, with one asserting exclusive motherhood.
The judge in
Vermont ruled that the women should "be treated no differently than a
husband and wife." He established a visiting schedule and held the
biological mother, Lisa Miller, in contempt of court when she failed to comply
with it. The judge in Virginia ruled that Ms. Miller had the sole right to
decide who could see the child. He ruled that the former partner, Janet
Miller-Jenkins, had no "parentage or visitation rights."
Legal
experts say the decisions, which reached State Supreme Court here on Wednesday,
are the first to present a direct conflict between two state courts on a
substantial legal question arising from a same-sex couple's union. The
decisions offer a preview, the experts added, of what are quite likely to be
many similar conflicts around the nation.
Ms. Miller
moved back to Virginia, where Isabella was born, in September 2003. The couple
had visited Vermont briefly for the civil union ceremony in 2000 and lived
there for more than a year after Isabella was born in 2002.
"When I
left Janet," Ms. Miller said in a telephone interview, "I left the
homosexual lifestyle and drew closer to God."
Ms.
Miller-Jenkins, who declined to be interviewed, has said the couple planned and
cared for Isabella together. She read a statement outside the courthouse after
arguments on Wednesday.
"I
sincerely believe," she said, "that it is best for my daughter that
both of her parents continue to be an active, loving, responsible part of her
life."
The justices
here were largely skeptical of the arguments offered by a lawyer for Ms.
Miller, who, like her former partner, had been known as Ms. Miller-Jenkins. The
justices also indicated that they were working in uncharted territory.
"The
assisted reproductive technologies are galloping ahead of existing law,"
Justice Marilyn S. Skoglund said.
A few
minutes later, Justice Denise R. Johnson asked about the consequences of
inconsistent rulings. A lawyer for Ms. Miller-Jenkins, Jennifer L. Levi, said
the question was premature. A Virginia appeals court will hear arguments in
that suit next Wednesday.
"I'm
just trying to figure out what the effect of our decision is," Justice
Johnson said, in a tone suggesting it might have no effect because Isabella and
Ms. Miller live in Virginia.
The cases
involve the interaction of two sets of laws. At the state level, Vermont and
Virginia have laws that say the first court to take jurisdiction of a custody
case should make the final determination. That would seem to help Ms.
Miller-Jenkins here.
In November
2003, it was Ms. Miller, the Virginian, who filed papers in Vermont to dissolve
the union. In them, Ms. Miller acknowledged that Isabella was a child of the
union and asked the court to allow her former partner to have contact with the
girl. Her lawyers have since taken varying positions. Ms. Miller now says she
was confused and did not mean to acknowledge any parental relationship between
her former partner and Isabella.
A 2004
Virginia law, the Marriage Affirmation Act, makes same-sex unions from other
states "void in all respects in Virginia." Judge John R. Prosser, of
Frederick County Circuit Court in Winchester, Va., relied on that law in
October in granting sole custody of Isabella to Ms. Miller.
Two
potentially conflicting federal laws add to the confusion. The Parental Kidnapping
Prevention Act largely tracks the state custody laws and requires other states
to defer to the first courts to hear such cases. But the federal Defense of
Marriage Act says states need not give effect to same-sex unions.
Joan
Hollinger, who teaches adoption law at the University of California, Berkeley,
said the Vermont judge had the better legal arguments. But, Ms. Hollinger
added, "Vermont courts are in practical terms powerless to enforce their
valid orders in Virginia if Virginia courts simply say no."
If the
states' highest courts issue conflicting decisions, the case could head for the
United States Supreme Court, said Mathew D. Staver, a lawyer for Ms. Miller.
Mr. Staver added that similar conflicts could arise from decisions in California,
where State Supreme Court ruled last month that both people in a lesbian couple
should be considered a child's parents in many circumstances. The Legislature
in Sacramento passed a same-sex marriage law on Tuesday.
Ms. Levi
disagreed, saying the case was an instance of the ordinary heartbreak after a
family breaks up.
"It's
an unfortunate reality that children get put in the middle," she said.
"Ultimately,
what this case is going to decide is whether children born to same-sex couples
should be treated the same or differently as other children."
Andrew
Koppelman, a law professor at Northwestern, addressed such case in a book on
interstate recognition of gay marriages that Yale University Press will publish
next year.
"If the
Virginia court is correct," Professor Koppelman wrote, "then no
parental right arising out of a same-sex marriage is secure anywhere in the
United States."
Ms. Miller
said Isabella neither knew about the case nor cares about its consequences.
"She doesn't even ask about Janet," Ms. Miller said. "I am the
only mother."
In Vermont,
Judge Cohen held Ms. Miller in contempt in September for not allowing visits to
Isabella. He has not imposed sanctions.
"The
judicial system as a whole simply cannot allow parties to try to take advantage
of legal and cultural differences," he wrote, "which may make one
state favor the position of a particular party over another."
Ms. Miller
said she found the idea that a court could force her to allow Isabella to visit
Ms. Miller-Jenkins particularly hurtful. "It would be like somebody off
the streets coming and taking my daughter," she said. "They have no
ties to my daughter."
* * * * *
Don't
Ignore Western Europe, Terrorism Expert Warns U.S.
Many Muslims
Are Alienated by Multicultural Continent's Inability to Assimilate
Them, Dean
at Johns Hopkins Says
By Walter
Pincus
Washington
Post Staff Writer
Western
Europe is a core recruiting ground for Muslim terrorists that is being
overlooked given the U.S. focus on Iraq and the Middle East, according to
Francis Fukuyama, academic dean of Johns Hopkins University's Paul H. Nitze
School of Advanced International Studies.
The failure
of European countries to assimilate their large and growing Muslim populations
in the era of globalization has caused an alienation among the young that has
created a "hard core for terrorism," Fukuyama said in Washington at a
bipartisan policy forum on terrorism and security, sponsored by the New America
Foundation.
"Fixing
the Middle East is only part of the problem. It is a West European problem,
too," Fukuyama said. He pointed out that the leaders of the Sept. 11,
2001, attacks came out of a cell in Hamburg and that most of the extremists
participating in the more recent bombings in Spain and England were born in
those countries.
Fukuyama's
analysis squares with recent CIA conclusions about the importance of Western
Europe, where, as one former senior intelligence official put it yesterday,
"there are 10 million Muslims . . . that are not integrated into their
societies."
Fukuyama
called this one area of the war against terrorism in which U.S. and European
interests merge and joint cooperation has begun to be productive. The Europeans
"need to understand American assimilation" because their approach of
"multiculturalism has been a failure," Fukuyama said.
The security
and terrorism conference drew more than 100 legislators, academics and former
policymakers, who expressed a broad range of views and concerns about extremism
and the strategies for confronting it.
University
of Chicago Associate Professor Robert A. Pape, author of "Dying to
Win," a book based on a study of 460 suicide bombers, told his audience
that Osama bin Laden's al Qaeda network decided two years ago to target Western
European countries that had allied themselves with the United States in Iraq.
Pape said
Norwegian intelligence obtained a September 2003 document from a Web site
reportedly affiliated with al Qaeda. The document discussed hitting Spain
before its elections and, thereafter, the British, the Italians and the Poles,
all of whom have had troops in Iraq.
In his book,
Pape described the situation, saying: "Every suicide terrorist campaign
has had a clear goal that is secular and political: to compel a modern
democracy to withdraw military forces from the territory that the terrorists
view as their homeland."
Retired Army
Col. Lawrence B. Wilkerson, who was the chief of staff of then-Secretary of
State Colin L. Powell, described at the conference what he called the "rightful
paranoia" that senior Bush administration policymakers have regarding the
prospect that terrorists might somehow obtain nuclear, chemical or biological
weapons.
"Katrina
gives us no confidence," Wilkerson said, in U.S. preparations for a
terrorist nuclear explosion in a major city. "I am 10 times more worried
about what happens to civil liberties after that attack."
Wilkerson
then drew the picture of Bush or a future president forced to act "to
satisfy demands of the American people." He said the likely steps after
such a dramatic attack would include "closed doors and closed borders . .
. no foreign students at all" and would "make the Patriot Act
pale," a reference to the post-Sept. 11 law designed to give law
enforcement agencies more latitude to investigate would-be terrorists.
Princeton
professor G. John Ikenberry criticized the Bush administration's
counterterrorism policies, saying that U.S. unilateralism has become a
"provocation and unsettling element in the world." His solution is
"to rediscover bargaining with key allies."
An opposing
view came from Rep. Jim Saxton (R-N.J.), chairman of the House Armed Services
subcommittee on terrorism, who expressed strong support for the president's
policies and praised the Pentagon's Special Forces as having "done more
than any other group" to fight terrorism.
He called
for a tougher policy on Iran, a country that he said "promotes radicalism,
promotes terrorism." He said the United States should support groups
inside and outside Iran that can "spread the cause of freedom" there.
* * * * *
Mubarak
Poised to Win Egypt Vote
In
Multi-Candidate Presidential Election, Ruling Party Exerts Influence at Polling
Places
By Daniel
Williams
Washington
Post Foreign Service
CAIRO, Sept.
7 -- Egyptians voted Wednesday in the country's first multi-candidate
presidential election, with predictions that President Hosni Mubarak was
guaranteed victory by a wide margin because of popular support and his party's
undisguised dominance of the polling process.
Mubarak, 77,
has been in power for 24 years and was competing for a fifth six-year term
against nine candidates. In his prior terms, he was reelected by yes-no
referendums in which only his name appeared on the ballot.
At several
voting stations in Cairo, election workers and partisans gave the impression of
a one-candidate race this time as well. Mubarak posters festooned entrances to
the polls, supporters held rallies at the doors, workers from his National
Democratic Party (NDP) enticed voters with lotteries offering trips to Mecca
and computers as prizes. Other party functionaries handed out registration
forms and wore Mubarak buttons and T-shirts.
At a huge
air-conditioned tent in a Cairo suburb, Mubarak's son Gamal oversaw hundreds of
campaign workers. The workers received election results by telephone from
across the country hours before the polls closed and typed the reports on
computers. Official numbers were scheduled for release no earlier than Thursday
by the Presidential Election Commission.
Turnout
appeared to be light but steady in Cairo, although unconfirmed reports
suggested a heavier vote in provincial towns.
The
presidential balloting in this nation of 76 million has been described as the
Arab Middle East's largest experiment in electoral democracy. Politicians
across the spectrum have called for open elections after 50 years of autocratic
governance. Mubarak was Anwar Sadat's vice president and assumed the presidency
after Sadat was assassinated in 1981.
Critics
charge that Mubarak's formula for the multi-candidate presidential election was
designed to pave the way for the accession to power of Gamal, 41, a lawyer who
has coordinated his father's campaign.
The Bush
administration has said Egypt is crucial to its goal of encouraging democracy
in the Middle East. Administration officials describe Egypt's presidential race
as a first step in needed political reform.
In any
event, Mubarak supporters all but declared victory. "We had a good
candidate," said Mohammed Kamal, a member of the president's campaign
team.
Opposition
leaders complained about the balloting. "This is not an election,"
opposition candidate Ayman Nour told supporters. "It would have been wiser
for Hosni Mubarak to win by a small margin or even lose, than win in a fabricated
way."
Independent
monitors were barred from the polls, but some took reports from outside polling
stations. Preliminary information indicated that excessive NDP influence at
polling stations was the main concern, said Enji Haddad, a member of We Are
Watching, a three-month-old human rights organization. "The NDP probably
did a disservice to Mubarak," she said.
Haddad said
anomalies were inherent in the election law, which kept the vote count secret
until it reached the election commission, leaving room for manipulation of the
count. "They may even have to shave Mubarak's vote to make the election
look legitimate," she said.
Mohammed
Sayek, a member of the Arab Organization for Human Rights, an independent
group, said he witnessed problems with missing names on voting lists and
efforts by the NDP to influence voters. But the election was an improvement on
past parliamentary votes and presidential referendums, he said. "Police
did not interfere, and there seemed to be rejection of people trying to vote
without voting cards," he said.
Nonetheless,
the NDP was openly campaigning at some polling stations. Two pickup
trucks with
loudspeakers drove up to the polling station at the Agha Khan School in Cairo,
and singers serenaded voters with pro-Mubarak songs.
"Mubarak,
never leave us," sang one supporter. Women wearing green Mubarak buttons
stopped voters to sign them up for a lottery, which they could participate in
by giving their names and voting numbers. Then poll workers, wearing shirts
emblazoned with Mubarak's picture and government-issued credential pins,
escorted voters inside. Some voters cast ballots and left without daubing their
fingers in the indelible ink meant to signify that they had voted. The measure
is intended to prevent them from going elsewhere to cast another ballot.
Yahya
Wahden, who described himself as an NDP candidate in this November's
parliamentary elections, arrived in a compact convertible accompanied by
pro-Mubarak singers. He inspected the voting station; politicians were not
supposed to enter except to vote, but he said he had already cast his ballot
elsewhere. "To make it clear, we are not here to promote Mubarak. Nothing
forbids music outside the polling place," he said as he threw kisses to
the singers.
At Gamaliya
Girls High School, men with NDP badges controlled the official voting lists.
They looked up names of voters and handed them forms on which to write their
personal information and identification data. The voters then carried the forms
to official voting registrars. Mubarak's photograph was on the forms.
"We're
just here to help people vote," said Tawfik Sayeed, who was in charge of
handing out the forms.
About a
dozen muscular men with no apparent job loitered around the voting booths,
which were covered by black cloths.
The
pro-Mubarak procedures were effectively endorsed by the election commission.
When combative Egyptian reporters asked about similar incidents elsewhere in
Cairo, a commission spokesman, Osama Attawiya, replied during a news conference,
"There is nothing to prevent the ruling party from organizing its own
voters."
As for
campaigning at the polling stations, he said, "I can't stop people from
chanting, even inside the voting area."
Even without
such methods, voters interviewed at polling stations were overwhelmingly in
favor of Mubarak. "They didn't have to sign me up for a lottery. I was
voting for Mubarak anyway. He's done a lot for Egypt," said Salem Eid as
he left the Agha Khan school.
On his way
to vote, Ashraf Mohammed Abdel Aal, crossing central Tahrir Square accompanied
by his two young sons, said Mubarak had given Egypt peace. "My children
were born without war. Mubarak has done his job as best as he can," Abdel
Aal said.
At the NDP's
monitoring tent, burly guards with pistols in their belts kept watch at the
front gate. Rugs covered the entrance. Gamal Mubarak, dressed in a blue suit,
gazed at a bank of televisions providing a variety of Arab and foreign news
reports on the election. The headquarters was alive with phone conversations
and people who were tabulating ballots. "North Sinai is voting
heavily," one worker told a reporter.
"Minya
is 89 percent for Mubarak," another said, referring to a province in the
south. He said NDP observers at the polls supplied him with the information,
but added he did not know how the numbers were gathered.
Officials
reported that violence was minimal during the vote. Scuffles broke out at an
opposition protest rally organized by Kifaya, or Enough, an amalgam of human
rights groups and political organizations that called for a boycott of the
polls. Mubarak's supporters shadowed the 700 Kifaya marchers through downtown
Cairo, and fights broke out when the ruling party's backers broke into Kifaya's
ranks. Riot police remained behind a fence in Tahrir Square and white-clad
police stood by impassively.
Wael Khalil,
a Kifaya official, expressed dismay at the vote. Kifaya had demanded that
Mubarak step down. "We've lost a battle," he said. "Still we
have come a long way. People are speaking out. I think Mubarak is weaker than
before, despite this."
* * * * *
Haunted
by Hesitation
By Maureen
Dowd, Washington Post
WASHINGTON
It took a
while, but the president finally figured out a response to the destruction of
New Orleans.
Later this
week (no point rushing things) W. is dispatching Dick Cheney to the rancid lake
that was a romantic city. The vice president has at long last lumbered back
from a Wyoming vacation, and, reportedly, from shopping for a $2.9 million
waterfront estate in St. Michael's, a retreat in the Chesapeake Bay where Rummy
has a weekend home, where "Wedding Crashers" was filmed and where
rich lobbyists hunt.
Maybe Mr.
Cheney is going down to New Orleans to hunt looters. Or to make sure that
Halliburton's lucrative contract to rebuild the city is watertight. Or maybe,
since former Senator John Breaux of Louisiana described the shattered parish as
"Baghdad under water," the vice president plans to take his pal Ahmad
Chalabi along for a consultation on destroying minority rights.
The water
that breached the New Orleans levees and left a million people homeless and
jobless has also breached the White House defenses. Reality has come flooding
in. Since 9/11, the Bush administration has been remarkably successful at
blowing off "the reality-based community," as it derisively calls the
press.
But now,
when W., Mr. Cheney, Laura, Rummy, Gen. Richard Myers, Michael Chertoff and the
rest of the gang tell us everything's under control, our cities are safe, stay
the course - who believes them?
This time we
can actually see the bodies.
As the water
recedes, more and more decaying bodies will testify to the callous and
stumblebum administration response to Katrina's rout of 90,000 square miles of
the South.
The Bush
administration bungled the Iraq occupation, arrogantly throwing away State
Department occupation plans and C.I.A. insurgency warnings. But the human toll
of those mistakes has not been as viscerally evident because the White House
pulled a curtain over the bodies: the president has avoided the funerals of
soldiers, and the Pentagon has censored the coffins of the dead coming home and
never acknowledges the number of Iraqi civilians killed.
But this
time, the bodies of those who might have been saved between Monday and Friday,
when the president failed to rush the necessary resources to a disaster that
his own general describes as "biblical," or even send in the 82nd
Airborne, are floating up in front of our eyes.
New
Orleans's literary lore and tourist lure was its fascination with the dead and
undead, its lavish annual Halloween party, its famous above-ground cemeteries,
its love of vampires and voodoo and zombies. But now that the city is
decimated, reeking with unnecessary death and destruction, the restless spirits
of New Orleans will haunt the White House.
The
administration's foreign policy is entirely constructed around American
self-love - the idea that the U.S. is superior, that we are the model everyone
looks up to, that everyone in the world wants what we have.
But when
people around the world look at Iraq, they don't see freedom. They see chaos
and sectarian hatred. And when they look at New Orleans, they see glaring
incompetence and racial injustice, where the rich white people were saved and
the poor black people were left to die hideous deaths. They see some
conservatives blaming the poor for not saving themselves. So much for W.'s
"culture of life."
The
president won re-election because he said that the war in Iraq and the Homeland
Security Department would make us safer. Hogwash.
W.'s 2004
convention was staged like "The Magnificent Seven" with the
Republicans' swaggering tough guys - from Rudy Giuliani to Arnold
Schwarzenegger to John McCain - riding in to save an embattled town.
These were
the steely-eyed gunslingers we needed to protect us, they said, not those
sissified girlie-men Democrats. But now it turns out that W. can't save the
town, not even from hurricane damage that everyone has been predicting for
years, much less from unpredictable terrorists.
His
campaigns presented the arc of his life story as that of a man who stumbled
around until he was 40, then found himself and developed a laserlike focus. But
now that the people of New Orleans need an ark, we have to question the
president's arc. He's stumbling in Iraq and he's stumbling on Katrina.
Let's play
the blame game: the man who benefited more than anyone in history from safety
nets set up by family did not bother to provide one for those who lost their
families.
* * * * *
KATRINA'S
AFTERMATH
California
Earthquake Could Be the Next Katrina
By Jia-Rui
Chong and Hector Becerra
L.A. Times
Staff Writers
U.S.
Geological Survey seismologist Lucy Jones remembers attending an emergency
training session in August 2001 with the Federal Emergency Management Agency
that discussed the three most likely catastrophes to strike the United States.
First on the
list was a terrorist attack in New York. Second was a super-strength hurricane
hitting New Orleans. Third was a major earthquake on the San Andreas fault.
Now that the
first two have come to pass, she and other earthquake experts are using the
devastating aftermath of Hurricane Katrina as an opportunity to reassess how
California would handle a major temblor.
Jones,
scientist-in-charge for the geological survey's Southern California Earthquake
Hazards Team, and other experts generally agree that California has come a long
way in the last two decades in seismic safety.
In Los
Angeles, all but one of 8,700 unreinforced masonry buildings — considered the
most likely to collapse in a major quake — have been retrofitted or demolished.
The state spent billions after the 1994 Northridge quake to retrofit more than
2,100 freeway overpasses, reporting this week that only a handful remain
unreinforced.
Despite
these improvements, however, officials believe that a major temblor could cause
the level of destruction and disruption seen over the last week on the Gulf
Coast.
More than
900 hospital buildings that state officials have identified as needing either
retrofitting or total replacement have yet to receive them, and the state
recently agreed to five-year extensions to hospitals that can't meet the 2008
deadline to make the fixes. More than 7,000 school buildings across the state
would also be vulnerable during a huge temblor, a state study found, though
there is no firm timetable for upgrading the structures.
And four Los
Angeles Police Department facilities — including the Parker Center headquarters
in downtown — worry officials, because they were built to primitive earthquake
standards and might not survive a major temblor. Only two of the LAPD's 19
stations meet the most rigorous quake-safe rules.
"We
could be dealing with infrastructure issues a lot like New Orleans," Jones
said.
"Our natural gas passes through the Cajon Pass…. Water — three pipelines —
cross the San Andreas fault in an area that is expected to go in an
earthquake." Railway lines are also vulnerable, she said.
A
catastrophic temblor at the right spot along the San Andreas could
significantly reduce energy and water supplies — at least temporarily, she and
others said. Researchers at the Southern California Earthquake Center said
there is an 80% to 90% chance that a temblor of 7.0 or greater magnitude will
strike Southern California before 2024.
"We
aren't anywhere close to where I wish we were" in terms of seismic safety,
Jones said.
Seismologists
are particularly concerned about a type of vulnerable building that has received
far less attention than unreinforced masonry.
There are
about 40,000 structures in California made from "non-ductile reinforced
concrete," a rigid substance susceptible to cracking. This was a common
construction ingredient for office buildings in the 1950s and '60s, before the
state instituted stricter standards. Few such structures have been seismically
retrofitted, officials said.
Seismic
safety advocates have also recently lost some major battles in Sacramento. The
state rejected a proposal from the Seismic Safety Commission in the wake of the
2003 San Simeon earthquake to force owners of unreinforced masonry buildings to
post warning signs. In that quake, two women died when the roof slid off of a
two-story Paso Robles brick building where they worked.
Last week,
the Legislature sent to the governor's desk a bill that encourages local
governments to develop retrofitting programs for "soft story"
wood-frame apartment buildings.
There are an
estimated 70,000 such structures in the state, and experts worry that they
could sustain major quake damage, because they often have tuck-under parking
and lack solid walls at their bases.
The danger
of this kind of construction was illustrated in the 1994 collapse of the
Northridge Meadows apartment complex, in which 16 residents were killed.
There are
other potential safety gaps as well.
Although Los
Angeles, Long Beach, Pasadena and several other cities have reinforced almost
all their masonry buildings, about a third of such structures across the state
remain unprotected, said Frank Turner, an engineer with the Seismic Safety
Commission.
A state
study published last year on hazard reduction paints a sobering picture of
California's earthquake danger. About 62% of the population lives in a zone of
high earthquake danger, including 100% of the population of Ventura County, 99%
of Los Angeles County and 92% of Riverside County.
Since 1971,
there have been at least 13 earthquakes of magnitude 6.0 or greater in the
state, and research conducted after the 1989 Loma Prieta quake in the Bay Area
found a 62% probability that at least one earthquake of magnitude 6.7 or more
would strike the Bay Area before 2032.
"We're
pretty confident we have some of the best buildings in the world here, but …
there are always going to be losses, because these are extraordinary
events," Turner said.
Still,
Southern California's geography could help prevent a catastrophe on the scale
of that in New Orleans.
Because the
Los Angeles region is so much larger than the Louisiana city, it is difficult
to conceive of a disaster — "short of an A-bomb" — that would blanket
the whole city, let alone the whole county, in ruin, said Lee Sapaden, a
spokesman for Los Angeles County's Office of Emergency Management.
Earthquakes
tend to do the most damage closest to the epicenters. The 1994 Northridge
quake, for example, damaged a large swath of the San Fernando Valley as well as
parts of Hollywood and the Westside. But areas farther to the east and south,
such as Long Beach and Orange County, saw little damage.
A large
quake in the Valley would probably still allow emergency supplies and rescuers
to reach the area from other locations such as the San Gabriel Valley and South
Bay, Sapaden said.
Emergency
crews would have better mobility than those in New Orleans, he added, because
even if freeways were wrecked, aid would probably be able to get through the
vast majority of areas on surface streets. "Here in Southern California,
Riverside, San Bernardino, Orange and Santa Barbara counties would help us out,
just like we would help them," he said.
One of the
biggest concerns of seismic safety officials is the fate of hospitals.
The 1971
Sylmar earthquake pushed Olive View Medical Center a foot off its foundation,
causing the first floor to collapse, killing three patients and a hospital
worker. The 1994 Northridge quake knocked 23 hospitals temporarily out of
service.
After that
quake, the Legislature passed a law requiring that hospitals retrofit buildings
to withstand a major temblor or replace them with new ones. About 78% of
hospitals have at least one building deemed at risk, said Jan Emerson,
spokeswoman for the California Hospital Assn.
But
hospitals, many of which are fighting budget problems, have balked at the price
tag — estimated at $24 billion for 2002-2030 — and in many cases have
successfully pushed Sacramento to delay the retrofitting deadline. The state
has already granted about 200 requests for extensions to make the necessary
repairs by 2013, according to a state document.
Safety
officials said more work is also needed at schools.
A 2002 state
study found that more than 7,500 school buildings across California are
expected to "perform poorly" in a major temblor.
The Los
Angeles Unified School District has completed seismic upgrades to nearly 2,000
buildings, spending $222 million on the effort, according to Richard Luke,
director of design for the district.
But the
district has not finished upgrades on 600 portable buildings and will look at
an additional 239 buildings identified by the Division of State Architect as
possibly performing poorly during a major quake.
Jones of the
geological survey and Turner of the Seismic Safety Commission believe that one
worst-case scenario would involve a massive temblor on the San Andreas fault
around where major utility lines run, possibly compromising water and power
supplies.
"We
should not be at all surprised if something similar to Hurricane Katrina
mirrors itself in California," Turner said. "There have been lots of
articles written about the failure of levees in the [Sacramento-San Joaquin]
Delta, the loss of drinking water in California. This is just the tip of the
iceberg."
About 60% of
Southern California's water is imported from outside the region in three major
aqueducts that cross the San Andreas fault, making them particularly vulnerable
to major earthquake damage.
One branch
of the 444-mile California Aqueduct, which carries water from the delta,
virtually sits on top of the fault for a few miles near Palmdale. A second
aqueduct from the Colorado River crosses the fault near Beaumont. And the Los
Angeles Aqueduct, which transports snowmelt from the eastern Sierra, runs
across the San Andreas in a mountain tunnel between Lancaster and Santa
Clarita.
Southern
California water managers say they've made progress in recent years building
local reserves they could turn to if they lost water from one or more of the
transport systems.
With such
efforts, "we feel even more confident we are able to provide sufficient
water to sustain us during an earthquake," said Debra Man, chief operating
officer of the Metropolitan Water District of Southern California, the region's
main water wholesaler.
Jim
McDaniels, chief operating officer for the Los Angeles Department of Water and
Power's water system, said that if disaster struck, the DWP could double its
groundwater pumping within the basin and draw from its four big local
reservoirs.
Major gas
lines also come into Southern California over the San Andreas at several
points, including at Indio, Palmdale, the Cajon Pass and the Tejon Ranch.
Still, officials at the Southern California Gas Co. expressed confidence that
the system could withstand a strong earthquake, noting they have been upgrading
the pipeline for years.
Another open
question is whether the major quake would cause damage to fire stations, police
headquarters and facilities of other emergency agencies, possibly slowing their
response. A state study found that many of the 1,300 emergency operations
buildings were constructed before strict quake building standards were enacted
in 1986, and that only a portion of those had been retrofitted.
At the LAPD,
the only four facilities to meet the most recent and rigorous "essential
building" standards are the department's newest: the West Valley and
Mission police stations and two 911 dispatch centers.
Yvette
Sanchez-Owens, head of the department's facilities management office, said she
is most concerned about three stations built in the 1960s: Rampart, Hollenbeck
and Harbor. Police officers at the Harbor station in San Pedro have been
relocated to trailers while a new station is built; officers could be moved out
of the Hollenbeck station in Boyle Heights sometime this fall as preparation
for construction of a new station begins.
As for
Parker Center, it already sustained significant damage during the Northridge
earthquake. It is also scheduled to be replaced, but not for several years.
"It
could be in real trouble," Sanchez-Owens said. "It's definitely not
built up to standard."
* * * * *
Osama
and Katrina
By THOMAS L.
FRIEDMAN, Washington Post
On the day
after 9/11, I was in Jerusalem and was interviewed by Israeli TV. The reporter
asked me, "Do you think the Bush administration is up to responding to
this attack?" As best I can recall, I answered: "Absolutely. One
thing I can assure you about these guys is that they know how to pull the
trigger."
It was just
a gut reaction that George Bush and Dick Cheney were the right guys to deal
with Osama. I was not alone in that feeling, and as a result, Mr. Bush got a
mandate, almost a blank check, to rule from 9/11 that he never really earned at
the polls. Unfortunately, he used that mandate not simply to confront the terrorists
but to take a radically uncompassionate conservative agenda - on taxes, stem
cells, the environment and foreign treaties - that was going nowhere before
9/11, and drive it into a post-9/11 world. In that sense, 9/11 distorted our
politics and society.
Well, if
9/11 is one bookend of the Bush administration, Katrina may be the other. If
9/11 put the wind at President Bush's back, Katrina's put the wind in his face.
If the Bush-Cheney team seemed to be the right guys to deal with Osama, they
seem exactly the wrong guys to deal with Katrina - and all the rot and
misplaced priorities it's exposed here at home.
These are
people so much better at inflicting pain than feeling it, so much better at
taking things apart than putting them together, so much better at defending
"intelligent design" as a theology than practicing it as a policy.
For instance, it's unavoidably obvious that we need a real policy of energy
conservation. But President Bush can barely choke out the word
"conservation."
And can you
imagine Mr. Cheney, who has already denounced conservation as a personal
virtue" irrelevant to national policy, now leading such a campaign or
confronting oil companies for price gouging?
And then
there are the president's standard lines: "It's not the government's
money; it's your money," and, "One of the last things that we need to
do to this economy is to take money out of your pocket and fuel
government." Maybe Mr. Bush will now also tell us: "It's not the
government's hurricane - it's your hurricane."
An
administration whose tax policy has been dominated by the toweringly selfish
Grover Norquist - who has been quoted as saying: "I don't want to abolish
government. I simply want to reduce it to the size where I can drag it into the
bathroom and drown it in the bathtub" - doesn't have the instincts for
this moment. Mr. Norquist is the only person about whom I would say this: I
hope he owns property around the New Orleans levee that was never properly
finished because of a lack of tax dollars. I hope his basement got flooded. And
I hope that he was busy drowning government in his bathtub when the levee broke
and that he had to wait for a U.S. Army helicopter to get out of town.
The Bush
team has engaged in a tax giveaway since 9/11 that has had one underlying
assumption: There will never be another rainy day. Just spend money. You knew
that sooner or later there would be a rainy day, but Karl Rove has assumed it
wouldn't happen on Mr. Bush's watch - that someone else would have to clean it
up. Well, it did happen on his watch.
Besides
ripping away the roofs of New Orleans, Katrina ripped away the argument that we
can cut taxes, properly educate our kids, compete with India and China, succeed
in Iraq, keep improving the U.S. infrastructure, and take care of a
catastrophic emergency - without putting ourselves totally into the debt of
Beijing.
So many of
the things the Bush team has ignored or distorted under the guise of fighting
Osama were exposed by Katrina: its refusal to impose a gasoline tax after 9/11,
which would have begun to shift our economy much sooner to more fuel-efficient
cars, helped raise money for a rainy day and eased our dependence on the
world's worst regimes for energy; its refusal to develop some form of national
health care to cover the 40 million uninsured; and its insistence on cutting
more taxes, even when that has contributed to incomplete levees and too small
an Army to deal with Katrina, Osama and Saddam at the same time.
As my
Democratic entrepreneur friend Joel Hyatt once remarked, the Bush team's
philosophy since 9/11 has been: "We're at war. Let's party."
Well, the
party is over. If Mr. Bush learns the lessons of Katrina, he has a chance to
replace his 9/11 mandate with something new and relevant. If that happens, Katrina
will have destroyed New Orleans, but helped to restore America. If Mr. Bush
goes back to his politics as usual, he'll be thwarted at every turn. Katrina
will have destroyed a city and a presidency.
* * * * *