Thoughtful Stuff

My Health and Fitness Pep Talk for All of Us

January 2, 2017 by Steph Stradley Leave a Comment

This is a 1963 photo of the CDC’s character Wellbee with Boston Red Sox players. Wellbee was created to encourage the public health of Americans. Wellbee is kinda creepy.

In the past, I’ve led online groups encouraging each other to be more healthy. One of them made the New York Times. (I had gained a lot more pounds than my baby was, and those pounds did not want to vacate the premises as fast as I wanted them to leave. It’s a nice article but inaccurately called me a “former lawyer”).
Over the years, I’ve been asked by some folks to write down some of my thoughts on health and fitness and inspired by the progress some of my friends have made, today I am doing a health and fitness pep talk for all of us.
Like with everything in life, take what works for you and consider the rest.
Most of these things are reminders of stuff you already know, and if you learn anything, all the better. Warning: This is unfashionably earnest writing and not cynical at all, so if that sort of thing doesn’t work for you, perhaps you should visit places online that are better for you.

General Health and Fitness Philosophy.

Being Kind to Yourself and Future Self. Ultimately with health and fitness things, the focus should be on things that don’t break your body down and are good for your short and long term health. When considering all choices, having respect for yourself and future self should be the primary directive.
This seems like a no duh, but look at all the diets and fitness things that people do that aren’t evidenced-based or good for one’s long-term health. Please consider not doing those things or at a minimum, make it a choice.
I’ve been spending a lot of time visiting senior living homes in recent years, and they make you think of such things.

Consult with Experts.

Medical Checkup. Have you been to the doctor and dentist recently? Sometimes medical reasons can interfere with your fitness objectives. Sometimes you can look and feel healthy but have metabolic, cholesterol, blood pressure etc issues. Visiting the dentist can maintain gum and teeth health, and make it easier to eat healthy foods.
Mental Health and Addiction. Depression lies. And as much as good nutrition and regular exercise can be of great help with many people’s mental status, depression can make it difficult to take care of yourself. The brain is the boss, so it gets priority. Find resources to get help.
Registered Dietitian. I thought I knew a lot about nutrition until I visited a Registered Dietitian. Typically, they will evaluate your current diet and educate you on portion sizes, practical nutrition tips, nutritional deficits, what is good for you as an individual. Whatever your current health status, they can make it more optimal. Knowledge is power. For some people, their insurance will cover the costs.

Mental Approaches.

“Get Your Mind Right.” I had the good fortune of working with fitness trainer, Todd Durkin, and one of his main mantras is “Get Your Mind Right.” I’m a big believer in “cognitive reframing” of trying to reframe negative, self-defeating thoughts into more positive ones that can create positive changes. To look at weaknesses and use that as a challenge to turn them into strengths and opportunities.
Be Your Own Best Friend. Sports psychologists often train athletes in their “self talk” and one of those things is to not talk to yourself in a way that is less kind than a good friend would talk to you.
Thou Shall Not Covet. It is weird how different societies value different things about people’s bodies. In basic terms, your body is what you use to tote your soul about. Trying to be something you are not and can’t be, never works out well. You be you.
You Are Not Immutable. That said, “you” as a person isn’t an unchangeable object that can only be one way. The you as a kid might have hated onions, now you love them. You may have preferences in your life, things that make you more or less comfortable, but you aren’t just a collection of characteristics that are only one thing. Your mind is powerful. You can choose things. Sometimes you can make choices and will those thoughts into reality. Make good choices, and try to make things happen.
The Perfect is the Enemy of the Good. Do something good for yourself. It doesn’t need to be perfect. Just do something. Make a choice to be good to yourself because if you don’t, who will?
Avoid Fatalism. Yes, being mindful of health and fitness things does not prevent bad things happening to your person. That said, a “we all die” mindset doesn’t account for preventable things or a full quality of life.
The Scale. Many theories abound about how much attention to pay to weight on the scale. I tend to think of it a bit like sports stats. It is one piece of data. It isn’t the be all and end all. It’s something worth knowing but can be misleading. I find my weight fluctuates during the course of a day, and when I’m at my fittest, I am often not at my lightest weight. My personal goals have nothing to do with this one stat and everything to do with my general health and the ability to do the things I want to do.

Nutrition.

Not a Fan of Diets. In my experience, the more one diets, the more one thinks about food and feels deprived. I prefer thinking in terms of living a generally healthy lifestyle based on just knowledge and moderation. That requires obtaining good information and buying into it and knowing what things you have difficulty moderating.
Typically, the American diet is too much processed food and too many calories from processed carbohydrates. Working with a Registered Dietitian can often figure out what specifically in your normal eating could be healthier for you.
If a specific temporary diet is healthy and sensible and jump starts a better lifestyle of eating, go for it. Just work toward something that you can live your life doing.
Food as Fuel. Treat your body at least as well as you treat your car. You wouldn’t put bad fuel in your car. The majority of your food choices should have some sort of positive nutritional value. I like thinking of trying to eat food closest to the way God made it.
Willpower is Overrated. If there are foods or beverages that you find hard to resist and aren’t beneficial to you, don’t have them in the house regularly.
Eating Out as a Health Opportunity. If you eat out a lot, learn about how to make healthier choices or the better of a bunch of bad choices. Also, find go-to restaurants where it is easier to make healthy choices. Even nutritionists can have difficulty determining calorie counts of restaurant foods, so be mindful of how things are prepared, portion sizes, calorically-dense foods. I like eating fish at restaurants because I rarely cook it at home and good restaurants usually have been sources for fresh fish.
Know How to Cook. When you cook at home, you know what is in your food and how it was prepared. There are ways of preparing foods that are very good for you and taste good. Just because you didn’t like your mom’s broccoli, doesn’t mean you can’t cook in a way that you like it. In the internet age, if you can follow directions, it is pretty easy to learn how to cook.
Food Diary. One of the best ways to educate yourself on the nutritional component of foods is to keep a food diary. After doing one for even two weeks, I learned a ton about calorie counts, nutritional components of foods I ate often.
Stay Hydrated. Sometimes people eat when they are really thirsty. I’ve seen a hat that says, “All of your problems ever are because you’re not drinking enough water.” There’s something to that. Sometimes when you are feeling off, just drinking some water does make you feel better. (Though like anything, too much is bad for you too. Moderation in everything).
Learn How to Read Food Labels. Working with a Registered Dietitian made me more mindful of food labels. The best info? Portion sizes (like some drink bottles and snacks are really 2+ portion sizes). 4 grams of sugar = 1 teaspoon which means a lot of common foods have many teaspoons of sugar.
Alcohol. For some people, alcohol doesn’t work for their lives and moderation is not an option. Sadly, I know too many people where it has put them in jail, hospital or the grave. For others, it is just a drag on their health, whether it is making them feel unwell or too many calories. Just keeping a food diary of the sugar and calories in alcohol might surprise you and make you think more moderately. If you need help with this, please find it.
Other Liquid Calories. It’s hard to maintain health being a daily soda drinker. There is just nothing good in it. Being mindful of liquid calories is important because they don’t make you feel full the same as solid ones do.
Mindful Eating and Food Because It’s There. Don’t eat food just because it is there. Stale popcorn at the theater. Donuts left in the break room. Candy dish. How many times do you eat something when you aren’t hungry? Taste the food that you are eating. If it isn’t worth the calories or nutrition, don’t eat it.
Early Bites are the Best Ones. You don’t have to finish your plate. Sometimes you just want a taste of something. It’s okay to taste things and not keep eating them until you are stuffed.
Fiber is Your Friend. Fiber naturally found in foods generally are a good thing for the functioning of your body and make you feel more full.
Don’t Be Weird About Food. Some people love food. Some people treat it like fuel. Whatever you do, if you are wondering if you are talking about food too much, maybe you are. It’s food. It’s cool that many humans get enjoyment from eating. That said, nobody wants to hear about your bloat tendencies or whatever weird biological whatnot.
Your Three Things. Be real. You likely know the things that are impeding your nutritional health. Some of them you may be resisting because you like them too much. Alcohol? Desserts? Sugars? Salty snacks? Sodas? High-calorie Starbucks nonsense? Fast food? Mindless eating? Not figuring out how you can like vegetables? Pick a few high impact things in your life, and work on those things first. Sometimes just doing it is easier on your mind than the dread of thinking about doing it.

Fitness.

Fitness As Holistic. Fitness is not just an outward thing but more having the suit that holds your soul be able to do the stuff you want to do in life now and the future. There’s a lot of parts to that, including body composition, strength, cardiovascular fitness, movement skills, balance, flexibility, agility, posture, healthy pain response, coordination, reaction time, mental focus and peace.
Some folks like to focus on their strengths and keep working on those. Some use their strengths to work on their weaknesses. Those strengths and weaknesses tend to evolve over the course of a life.
Just as I don’t like the thought of “diets,” I don’t like the idea of fitness as anything other than just one of the things that you do. Brush teeth, shower, move around regularly.
Figure Out How to Enjoy It. Sometimes there are things in life that are good for us but we don’t enjoy them. You can choose: 1. To avoid them; 2. To do them unhappily. 3. To find a way to enjoy them. I try to choose 3, though 1 and 2 get into the mix sometimes. Trying to find ways to enjoy things we don’t naturally enjoy can turn them into things we naturally enjoy.
Joy is good, and I recommend it.
In the technology world, sometimes they do that by “gamifying” them. That many people like games, so app makers and retailers make things more like games so people want to do them. I never liked to do cardio activities until I found ways to make them more interesting, like attending classes and reading fun stupid stuff while on cardio machines.
One of my favorite workouts is what I call the “Game of Thrones Workout,” where I binge watch a show to catch up and do various workout stuff in front of the TV.
Move About. Human beings aren’t meant to sit around all the time. And I find I feel better the more I move about. Everybody has a different starting fitness level, but find things to do every day to get your blood moving. If you have physical limitations, you can often find things to work around those limitations. If you sit a lot for your job, try to make sure your ergonomics of where you work are good and take regular breaks.
Shoes. You don’t need the latest workout shoes. I often buy the previous year’s shoes on sale and I rotate between a couple. Shoes are always cheaper and better than hip and knee replacements. Find ones that work and workout gear you like because you are more likely do exercise if you like what you are wearing.
Variety. Personally, I’m a big fan of a variety of fitness activities. I think variety is a good thing because it tends to reduce imbalances in your fitness.
Timing. You don’t have to do all your workout at one time. You can spread activity throughout the day. I like getting workouts done in the morning because things won’t pop up later that derail them, but sometimes that is not logistically feasible. Work a lot during the week? Then try to make sure every weekend has some fitness in it. One of the fittest and busiest people I know would always try to do about 15 minutes of intense fitness before hopping in the shower. Sometimes you just have to schedule when it makes time for your life but intend for it to happen.
Counterproductive Fitness. Sometimes people do ego types of fitness activities that are meant for their bodies to look like some sort of ideal but break the body down by putting unnecessary stress on joints and bones or go beyond their fitness level.
If you are working with a fitness trainer, learn about their background and their philosophy on such things.
Personally, though I have done long-distance running in the past with a run trainer, I do not like running as a way to maintain fitness. I find that for most body types, it is hard to engage in that as a regular activity and not break down. I can’t say I’m a big fan of Cross Fit generally for that reason, but some places have good sense and a good community that works for them. Your results may vary.
Gym Workouts. If you think you would like gym workouts, they have to work for your life. Try to get a gym that you can afford and that is not too far from your work or your house. Make it logistically easy for you to go by having workout clothes in your car if you come from work.
If you feel self-conscious about gyms, please don’t. The people running the gym don’t want that. And most people are too preoccupied with their own lives to care about your gym activities. And really, if someone is all judgy about you being at a gym, that says more about them than you. Most gyms have programs to familiarize you with their equipment and have folks that want to help you.
I enjoy going to gyms because I like the variety, and I try to think of it as my stress release spa.
Non-Gym Workouts. Obviously, you don’t need a gym to do a workout, and you don’t need a “workout” to get your blood going.
One of my favorite fitness books is called, “The Prison Yoga Project: A Path for Healing and Recovery” by James Fox. It is a book that was written primarily for prisoners who have limited workout space, access to instructors and who have significant challenges in dealing with trauma and stress. But for all people, it does a great job explaining yoga, yoga positions, and the mental benefits of connecting mind with body. It also happens to help people, details about the Prison Yoga Project here.
Find things that you can do and just do them. Everything else is just excuses.
Technology. There’s plenty of technology out there that encourages fitness. Wearables. Online support groups and videos. Video game workouts. Online information (preferably smart and evidence based). One of my friends likes doing workouts she finds on Pinterest.
It has never been easier to find things to help you move more but at the same time, plenty of distractions to stop you from moving.
Know Your Limits. Often in sports, there is the discussion of what is pain versus what is injury. Even with professionals, that is a tough line to draw. Whatever activity you are doing, listen to the pain signals that your body puts out and try not to overdo, because that can be counterproductive. I like the thought of not being in a competition with anyone.
Be the Tortoise. Much better to be consistent in your commitment to a healthier you than burning out all at once and getting discouraged. Have a setback? Every day is another day.
Try Stuff Out. If there is a workout in existence, I’ve tried it out and learned to enjoy pretty much all of them. My current favorites are Spinning and Pilates for how they make me feel in my mind and body, assuming that the music in the Spinning class isn’t too bad. Find the things that you enjoy and work for you, and give things a chance by doing them for a while.
Have a Great Life. Okay, I’m going to stop writing this because it is already too long but will likely update it with extra stuff over time. Hope you enjoyed this pep talk of stuff you likely already know but need a reminder. Keep kicking ass.

On Self-Respect and Being Kind to Yourself

November 11, 2014 by Steph Stradley 1 Comment

You likely know people who tend to beat themselves up a lot. Maybe that’s you. Think everyone does it to some degree, but it’s destructive when it becomes a habit not even noticed.
And what I want to say is this:
Self-respect is being kind to yourself and your future self.
Being kind to yourself, in that the things you say to yourself should never be harsher than what a good and kind and true friend would say. And kind friends forgive after people make inevitable mistakes.
Being kind to your future self, in that the things you do now, should help and not harm you in the future.
Self-respect doesn’t mean self-involved, or only looking out for your own interests. Because certainly being overly self-involved isn’t in anyone’s short or long term interests unless you enjoy being perceived as an ass.
When you go through life, ask whether the things you do are unkind to you or the future you. Make this a daily intentional choice. See if you can do big and little things to help yourself. Often those things will, by their nature, help other people too.
It can be a big thing like saving money for a future big purchase instead of unthinkingly getting further in to debt.
And can be a small thing like setting the coffee maker before you go to bed so you wake up to a great smelling fresh pot of coffee.
Catch yourself in moments of self-respect, “I am being kind to myself or my future self.” Game it, and think of different ways to be kind to yourself during the course of your day.
Sometimes, people use intoxicants to feel happy right now, and/or to quiet anxious voices in their head. But it has been said that excess alcohol steals tomorrow’s happiness for today. I don’t know who said that, but it is likely someone who gets killer hangovers.
The notion of helping yourself with deferred gratification doesn’t sound very fun. And I think the trick to it is to make sure that when you are taking care of the future you, it also includes the near future you too. But when you make choices that aren’t good for you, not to beat yourself up too much.
Wrote this down because some of the folks who find this blog are having rough times in their lives and may need of a reminder to be kind to themselves. Sorry you are going through this. And if you are not, high five.
(I started thinking about this some while trying to figure out Matthew McConaughey’s widely-panned Oscar speech thanking his future self for being his hero. Not quite the same concept but similar. Make your future self thank you too.)

What is Sensible Discipline for NFL Player Misconduct?

September 16, 2014 by Steph Stradley Leave a Comment

Understatement to say that the NFL and its teams are struggling to fashion appropriate discipline for allegations of NFL player misconduct. As I’ve written before, these problems were completely foreseeable when sports leagues take a bigger role in extra-judicial punishments. And sell to the public that it is appropriate for them to do so.
Everybody has an opinion on this, and I will share mine. I have a unique perspective as I’ve worked for large companies as an in-house lawyer, dealing with crisis management and employment law among other issues. In addition, I’ve worked with my husband who is a former assistant district attorney and currently practices criminal defense. And I’ve written professionally about the NFL since 2006, including changes over time to the personal conduct policy.
The short answer? I can’t think of a fair, sensible way to satisfy the people angry at player misconduct. The NFL as a sports league aren’t experts at criminal justice, and even governments have a difficult time dispensing fair, just results.
So instead of pretending I have all the answers, I will float some thoughts I think are relevant to the discussion of trying to create such a policy.
Factors in looking a NFL player misconduct discipline:
1. What is the purpose of league punishment? The league and the public believes that playing in the NFL is a privilege and the standard should be higher than the law.
But what does that even mean? At what point is NFL punishment sufficient to “fix” things? I don’t think this question has been asked much.
Suspension of two games, six games, a zero-tolerance life time ban?
Is the purpose of punishment deterrence? Given that they’ve had variations of a personal conduct policy for a long time and there continues to be issues, I don’t think that the conduct policy is deterrent. Human beings often make choices that are self-destructive and not in their best interests. All it takes for this to happen once, and it is life transforming. Typically, most of the cases my husband sees are people who see themselves as law abiding citizens who have never been in trouble with the law before.
Is the purpose of punishment PR? I’ve written before that the NFL voluntarily taking on a larger role in ad hoc player discipline has actually put a greater spot light on player bad acts, by creating a CourtTV commentary industry speculating on what are fair punishments for bad acts.
Is the purpose of punishment to assuage angry people? Not sure how much punishment helps that. No matter what the league assesses, it will be too much or too little depending on who is looking at the situation.
Is the purpose of punishment helping victims? The punishment that Ray Rice received is not seen as a positive by his wife. Harsh additional league punishment of Adrian Peterson likely does not make his childrens’ lives better. If accepting a plea leads to harsh league punishment, a player may choose to go to trial versus accepting a plea, even if the trial process will be extremely painful for the victim to relive.
If the NFL comes down harsh on players, will some victims avoid seeking help because they are afraid of draconian consequences? In fact, sometimes in the criminal justice system, punishments are tailored to help the victims of crimes. For example, allowing an offender to serve jail time on weekends to preserve a job and income to pay for restitution. (Not an issue for marque players but likely an issue for some others).
For those who suggest zero-tolerance punishments, I guess my question is this:
Should all offenders be considered beyond redemption? That if someone commits a crime, should they forever be considered beyond the help of therapy or forgiveness or whatever you want to call it and forever unemployable? Maybe there are some truly evil people beyond help, but I think a blanket rejection of rehabilitation can be a counterproductive thing for our society to embrace.
I don’t have answers to this. I don’t think as a society we think of these issues very well for our criminal justice system. Ultimately, punishments keep ratcheting up despite costs because it is politically popular to be “tough on crime.”
2. NFL careers are very short and competitive. Even short suspensions can have a big affect on a player’s career path.
3. The legal process is slow. It is rare for a legal case to go away quickly. Sometimes it can happen, but the majority of cases do not come to a final disposition for a long time. This sometimes makes people angry to have to wait for that process to be over before discipline is effectuated. If you want to punish players up through the time they are found innocent, you are actually punishing them because the legal system is slow.
4. Problems with disciplining by act versus looking at other factors. In the criminal justice system, there are many factors that are looked at when assessing punishment, not just the crime itself. There is some discussion of a one-size-fits all approach to all NFL domestic violence situations. Things that are looked at in the criminal justice system often involve victim impact and statements, remorse of the defendant, exact nature of crime, whether someone is a first time offender, whether they have done positive things for the community, etc. Those are things that fair people look at for fair results but I’m not sure that fairness comes into play with sports league sanctions.
5. Competition issues. There’s some discussion that the NFL went easier on Ray Rice at first because they were trying to get him back on the field to benefit the Ravens. I don’t believe that. I believe the original media reports that the commissioner listened to the “impassioned plea” of Janay Rice and believed the couple was trying to get help.
In any event, currently the NFL commissioner is the judge, jury, appeals court in discipline issues. Fans (or maybe teams) may think that the commissioner favors one team over another based on case-by-case discipline. But if there is a one-size-fits all approach, the league runs the risk of punishing all players the same, even in very dissimilar situations.
6. The perils of disciplining based on arrests and not final disposition. As I’ve written before, there’s significant fairness issues with the NFL disciplining players based on just arrests and not convictions. These are not technically-speaking “due process” issues like what the government needs to provide, but the concept is similar. NFL teams are only constricted by the terms of their collectively bargained arrangement with players, but can cut players any time they want and take the contract and salary cap consequences.
For private employers, there can be significant problems firing employees based on just arrests which is an involved topic far beyond the scope of this.
But in terms of fairness, and specifically as it relates to the NFL, disciplining based on arrests can be problematic.
Wrongful arrests happen all the time. Scare you to your bones kind of situations. You often don’t hear about them because sometimes the lawyers are able to make those go away in a sensible way.
Police officers have a difficult job because they have to sort out strangers’ tense situations in a quick manner and from their perceptions. It is not uncommon for wrongful arrests to happen for potentially racial reasons.
In addition, any time you are dealing with high-income, high profile individuals and high stakes, there are always concerns about extortion and individuals looking to profit. That is what Dallas Cowboys owner Jerry Jones is claiming in his sexual assault civil matter.
What I know is this. Rarely do public reports of high profile legal matters have a complete reporting of the facts. Part of that is the nature of legal matters, which often have confidentiality complications.
Ethically, there are limits on what lawyers are supposed to say publicly in criminal matters. In high profile cases, there are sometimes people who are incentivized, for whatever reasons, to release one side of a situation.
I don’t know what the answers to these issues are but because of what I’ve seen, I’d be very reluctant for a league to embrace a policy that punishes players just on the basis of arrests except for very extreme circumstances.
7. The NFL has a CBA that limits (or should limit) some of their options. Employers who deal with unions have agreements that govern the terms of employment. In the NFL, the players collectively bargained these terms. There are significant antitrust questions if the NFL tries to unilaterally change the terms of the NFL conduct policy. In addition, as I understand it, there are restrictions on the use of extended deactivation of a player.
8. Be careful letting crisis dictate policy. When bad situations happen, companies and governments tend to cobble together policies to deal with that particular situation. Very reactive.
But when you make a policy, you need to think of all the future situations, and not just the ones in front of you. Being over-reactive can lead to unintended consequences and unfair results.
And once a league or a government takes what is perceived as a tough stance, it is hard for them to relax it later for fairness reasons because that can be seen as soft.
9. Shame is also punishment. Punishment happens even without criminal convictions. The process of dealing with the legal system is harsh and expensive. And for high-profile players accused of crimes, they have to go through the rest of their lives with the stigma of their accusation. Whatever the criminal justice system does or leagues do, harshly or not, that will always remain. They have to live with the worst moments of their lives and know that everyone they deal with knows about it. Not saying you need to feel sorry for that, but I am just saying that is also a significant and lasting component of punishment.
Conclusion:
So, I don’t think there are any easy answers to NFL player misconduct issues. Anyone that suggests there are easy answers likely doesn’t know what they don’t know.
Maybe they will bring in former NFL commissioner Paul Tagliabue to clean up this mess too, like he did with Bountygate.
I am not jealous of the league and teams trying to figure this out. You can already see that they feel very uncomfortable handling it, as most employers would. They are football people and not reformers of social policy.
What is lost in this discussion is that the vast majority of NFL players are a lot more disciplined in their twenties and thirties than most people are at any age. And that, demographically, they commit fewer crimes than non-players their ages and certainly do more charitable acts.
The American legal system is certainly not perfect, but I trust them to do the right thing more than league PR reactions to mob snap judgments. The league struggles enough with fairly enforcing rule violations on the playing field.

Open Carry of Guns and Texas Law on Provocation

August 22, 2014 by Steph Stradley Leave a Comment

The word “provocative” has often been used in articles describing the tactics of Open Carry Texas. A Google search of “Open Carry + provocative” leads to about 15,000 results.
For those unfamiliar with them, “Open Carry Texas” is the organization which seeks: 1. to promote awareness that the open carry of long rifles is legal in Texas; 2. to make people feel more comfortable with the safe and legal exercise of that right; 3. to change state law to make less restrictive open carry laws.
They promote their cause by openly carrying rifles at rallies in public places. According to the Houston Press, “Open Carry Texas Says it Still Wants to March in the Fifth Ward.”
An open carry group called the “Huey P. Newton Gun Club” conducted a march in South Dallas recently. Partially in response to the Mike Brown police shooting in Ferguson, Missouri. The purpose according to one of the organizers? To share the view that “all black people have the right to self-defense and self-determination.”
Open carry rallies currently are newsworthy, and some would suggest provocative.
Seeing the word “provocative” in these articles reminds me of the muddled Texas law on self-defense. Self-defense claims happen when a person who reasonably believes he is facing an imminent threat of grave bodily injury or death uses force to defend himself.
In Texas, some sets of facts can result in what is called a “provocation” jury charge. To oversimplify, the jury is asked by the prosecutor to look at the question: “Who provoked the attack that resulted in the shooting?” If a jury decides that a defendant “provoked the difficulty,” then it acts as a complete bar to the defendant being able to claim self-defense.
The theory on this is the law doesn’t want people to be able to manufacture an excuse to shoot someone and then later claim self-defense. Makes sense.
In practical, real world terms, a “provocation instruction” to a jury presents problems for those who try to use lawful self-defense in Texas. If a person has what looks to be a good self-defense claim, the provocation language can give a way for a jury to rule against a defendant if they don’t like him and/or want to support the person and his family who self-defense was used against.
If an entire court room is filled with the friends and family of who the prosecutor says is the victim, there can be immense pressure to find for a guilty verdict instead of lawful self-defense.

Does the Act of Open Carry of Weapons Risk a Provocation Jury Charge?

What I wonder is this: If someone open carrying a weapon actually needs to use his weapon to defend himself, could a prosecutor possibly claim that he “provoked the difficulty,” barring his self-defense claim?
Texas law on provocation is judged on a case by case basis and puts the burden on the shooter to guess whether a jury might later think he provoked the incident. The 1998 Texas Court of Criminal Appeals case, State v. Smith explains the confusion of Texas law on this well:
“Unfortunately, what was true in 1908 is still true today: “[T]here is some uncertainty, if not confusion, in the books in respect to the doctrine of provoking a difficulty.” Young v. State, 53 Tex.Crim. 416, 110 S.W. 445, 447 (1908). “[T]here is often great difficulty in determining just when a combination of facts justifies a charge on the law of provoking a difficulty.” Flewellen v. State, 83 Tex.Crim. 568, 204 S.W. 657, 664 (1918) (Morrow, J., dissenting). “[E]very trial judge of any experience knows that submitting such a charge to a jury is fraught with difficulty and the chance of error is great.” Dirck v. State, 579 S.W.2d 198, 203 n. 5 (Tex.Cr.App.1979).”
There are three factors Texas courts are supposed to look at when deciding whether someone “provoked the difficulty” according to State v. Smith:
“A charge on provocation is required when there is sufficient evidence (1) that the defendant did some act or used some words which provoked the attack on him, (2) that such act or words were reasonably calculated to provoke the attack, and (3) that the act was done or the words were used for the purpose and with the intent that the defendant would have a pretext for inflicting harm upon the other.”
The difficulty is that if you look at Texas case law, the provoking act doesn’t have to be unlawful (as it does in some jurisdictions). It can sometimes just be bad judgment.
“Some act or words.” Could the lawful display of loaded, semi-automatic rifles in places where they are not typically carried itself be considered a provocative act?
Since judges and juries cannot look into people’s hearts and minds to determine intent to inflict harm, circumstantial evidence is used. Seldom is there obvious evidence of bad intent. The Smith court suggested that sometimes the provocative act is bad enough to show intent. Sometimes prosecutors use evidence that otherwise may have innocent explanations but after a shooting could be seen as bad intent.
Also complicating things is the common use of the word “provoke” is different than the legal meaning of “provoke the difficulty” which includes the element of intent to start a dispute in order to harm the other.
Hopefully, this set of events involving open carry becomes no more than a hypothetical. The reality is that provocation charges can complicate claims of lawful self-defense in Texas in any circumstance, guns or no, and result in long and confusing jury charges.
Both candidates for Texas governor support legislation for the open carry of handguns as well. When legislation on open carry or “stand your ground” is enacted by legislatures, it is intended to help those who want to use lawful self-defense. But in practical terms, the Texas law on provocation can make a trial a referendum on character of the people involved in the confrontation.
What one person sees as a lawful exercise of Second Amendment rights for self defense, a jury could be told the person is a “gun nut” looking for trouble.

Deb's Story: An American Health Insurance Tale

October 16, 2012 by Steph Stradley 1 Comment

Deborah-Greer-Costello-Zoe — This is a picture of my sister Debby after her daughter was born. I love this picture. Full of joy.

A true story. My late sister Deb lived her life as a very responsible American. To take care of herself and her young daughter, she had a responsible job at a big company, which meant that she had about the best insurance an American can have unless you are in Congress.

One day she woke up with a terrible headache and her arm numb. She went to the ER and discovered she had a rare form of leukemia. This meant immediate treatment and vast amounts of time in the hospital.

She could no longer work, so she kept getting paid until her vacation and sick time elapsed. Then she was on her company's employee list until her American's With Disabilities time elapsed. Then she was fired.

This meant she could keep her insurance as long as she made COBRA payments, which are wildly expensive even if you have a full income. She didn't qualify for financial aid from most sources because they looked at her yearly income before she got sick. So literally she was forced to beg for money to live, pay for her insurance, pay for drugs from her family, friends, church and internet.

When I asked the financial aid people at the hospital what happens to people in this circumstance who don't have families, the lady told me that they die.

She survived chemotherapy and a stem cell transplant. But it left her with a compromised immune system, complications from the transplant, unable to work. She moved back with our parents at age 40.

And COBRA insurance only lasts for ~~36 months~~ [UPDATE: Correction 18 months. Gah, blocked bad stuff from my head, I guess] When that elapsed, she was uninsurable. Uninsurable patients only qualify for what is called "high risk pools." This is also very expensive, and has less coverage than a lot of insurance. There's a great deal of paperwork involved with joining these pools, and sadly, in the rush and messed up paperwork to get my sister signed up, she was uninsured for a period of time (not her fault). And it happened to correspond to the time her leukemia relapsed.

She spent the last days of her life worrying about insurance. At the end of her life, when she knew she was dying and was in unspeakable pain, we tried to get her in-hospital hospice care to ease her suffering because she couldn't be transferred. I was told it was impossible, that her risk pool insurance wouldn't pay for it.

I spent years after her death sorting out five tons of her medical bills, and getting angrier and angrier.

I've posted a reprint of her last blog post before, where she is giving her final word advice to her friends, family, interweb friends, and she had this to say about insurance in 2009:

Support sensible health insurance reform. I'm not sure what that ends up looking like, but injuries and illnesses shouldn't fate people into a life of insurmountable debt and bill collectors. I spent the last “healthy” months of my pre-hospital stay, worried and scrambling to find insurance because my COBRA insurance ran out. Patients should be able to focus on getting better and not crushingly large mountains of papers telling them that their credit is forever screwed.

I'm not sure what sensible health insurance reform looks like or whether anyone is brilliant enough to sort it out such where people with catastrophic injuries or illnesses aren't "forever screwed."

I'm not a terribly political person. Because I'm a person voter and not a party voter, and the divisiveness of American politics wounds me. But my sister's experience left me scarred and frightened. I've tried to follow what the Patient Protection and Affordable Care Act aka "Obamacare" says (a brief descriptive here and interesting discussion), and what alternatives are to it, and it isn't terribly comforting.

I'm guessing my sister would not be very happy with these Romney quotes as excerpted that seem to minimize the concern folks have in being uninsured or underinsured. Deb postponed doctor's visits as long as she was able because she had no insurance despite being wildly desperate to have it. (She joked about marrying people for their health insurance).

I sometimes wonder if her insurance situation was better, she would have received an earlier diagnosis of her relapse in time to treat it better. She was one of the rare people who had a stem cell match. Often, the earlier the diagnosis of leukemia, the higher chances there are for survival.

Every once in a while, I re-read my sister's Twitter stream and inspirational blog (only part of it still exists due to hackers–the pictures and comments are gone). I can *hear* her talking. I looked at Deb's Twitter again after reading this interesting blog post by Amanda Palmer (@AmandaPalmer) and her idea for the #InsurancePoll hashtag. Went through her Twitter feed and pulled out some tweets that allows Deb to tell her #InsurancePoll story after her death because I know she'd participate if she were still alive. She wanted to help people. She wanted to make a difference.

Her Twitter stream starts after he leukemia diagnosis and stem cell transplant, and her panic when she knows she needs to see doctors but doesn't have insurance.

Though you get a sense of Deb's anger and sadness, I'm not a good enough writer to convey her abject horror and fear at realizing that she might be relapsing without insurance.

Saints Bountygate Litigation and The Death of Reason

August 6, 2012 by Steph Stradley 20 Comments

Sadly, sensible legal maneuvers are often incompatible with common sense. That is likely reason 2,366,254,863 people don't like lawyers.

The posturing involving Saints "Bountygate" makes little real sense, but settlement of the lawsuit is very difficult due to issues of ego, power, opposite viewpoints, and lawyering. I have a hard time figuring out what the NFL's goals are other than a demonstration of power over the NFL Player's Association. For example….

Increasing Punishment Based on Retaliation?

This weekend Jason Cole wrote on Twitter that NFL sources suggested Jonathan Vilma's suspension would have been reduced to maybe 4 games instead of the entire season had the NFLPA cooperated with the NFL. Really? How is that a reasoned, non-arbitrary system to retaliate against players due the advice of their union and lawyers?

The idea is that had Vilma and other players cooperated with the NFL, they would have got a reduced punishment. Don't think there is any evidence of that.

The Saints coaches participated in the flawed, secret evidence, bizarre due process appeal to the Comissioner, and got zero reduction of their suspension. NFL Commissioner Roger Goodell believed that the coaches lied. Both Saints head coach Sean Payton in his sole public statement, and interim head coach Joe Vitt in sworn court testimony suggested that they didn't lie. If Goodell doesn't believe Payton after speaking to him in person, and Vitt after he has testified under threat of prosecution of perjury, I'm not sure what evidence is sufficient for Goodell.

Goodell Could Get Closure Right Now.

Goodell in his appeals decision noted: "While this decision constitutes my final and binding determination under the CBA, I of course retain the inherent authority to reduce a suspension should facts be brought to my attention warranting the exercise of that decretion."

Well, what is stopping him now? That the players didn't go to NFL Headquarters in New York to kiss his ring?

There's been court testimony in support of the players' position. There's plenty of information shared about the facts in the litigation documents the NFL's attorneys have and are available publicly from many sources, including one of my previous blog posts.

The Federal Court, like in most cases, is requiring the parties to engage in confidential settlement talks. For an appropriate magistrate-mediated settlement, you have to have parties with authority to settle. If Goodell wants his face-to-face meeting to look into the players' souls, heart, spleen or whatnot , that is more than an appropriate setting.

And now Jonathan Vilma's lawyer has filed documents with the Court complaining that the NFL is violating the confidentiality of settlement talks.

Misunderstandings Happen. Why Common Sense Dictates A Shared Resolution.

I've made the point before that Goodell keeps moving the goal line of what the Saints are being punished for as clearer evidence comes out. Goodell claimed this weekend that pay to injure is not a semantic issue, but the Saints players and coaches have a vehement, reasoned disagreement with him. Is there evidence of bounties, pay-to-injure, pay-for-performance? There's solid evidence on pay-for-performance, but the players and coaches are being punished for intent to injure and lying.

I think Saints QB Drew Brees has the most sensible point of view on this. From his interview with NFL Network as reported by ProFootballTalk:

“Do I trust the Commissioner? I think that Commissioner Goodell has done a lot of great things for this league. It just happens to be that, in this instance, with the bounty, I think that the league and he have gotten this one wrong. And we all have the opportunity to re-evaluate this and make it right, come to a positive resolution and do it together. And be very open and transparent about it.”

“The most disturbing thing is the process, the process by which this whole thing was unveiled. The intentions were never made clear from the very beginning. I think coaches and players alike were kind of brought in to talk to the Commissioner and the league under false pretenses, and all of a sudden it’s just like a media firestorm and evidence and things are getting leaked to the media, things are being reported that are proven to be untrue in a lot of cases. And yet it’s out there. The perception has been created nationally for fans and all those that love our game that there was something illegal going on here. And that’s everything against what we stand for. And that’s why we fought so vehemently to prove that’s not the case.”

Instead of using the punishment model for this matter, the NFL instead should have used the prevention model.

In Vitt's testimony in court, he noted that he didn't know that payments for performance were against league rules though he also noted that he should have known. The NFL has said that in 2009, the Saints were warned against this behavior. Were the players warned? Certainly, it wasn't made a league wide point of emphasis like illegal hits have been in recent years. If the NFL was intent in getting rid of the "culture of bounties," perhaps they should have done more to make that happen back when they had suspicions in 2009.

When punishment and grandstanding seem to be the NFL's intent by their actions and public statements, it doesn't create an atmosphere of trust with players and coaches to try to have reasoned discussions with the Commissioner.

The NFL suggests there is evidence that hasn't been revealed which demonstrates this goes beyond a misunderstanding. Perhaps this is the case, but when players' reputations, careers and money are at stake, they are not likely going to want a resolution without putting that evidence to the test.

Goodell as "Judge, Jury and Executioner" Under the CBA: This View Misses the Point.

Even those who believe that Commissioner Goodell's decision was wildly excessive, point to the view that the players shouldn't have agreed to the system in the CBA that gives Goodell the power to make unfair decisions based on secret evidence with no neutral appeals body.

This view misses the players' viewpoint that they believe the CBA does have protections built in it both explicitly and implied through just the general protections workers receive in collectively bargained rights in discipline matters.

Goodell has already noted that these are unprecidented sanctions. And I believe, there was substantial uncertainty on what the appropriate CBA procedures were to handle suspensions like this, after an arbitration appeal was pending.

To give harsher punishments to players due to uncertainties in the CBA discipline procedures seems unfair on its face. I think the NFL and the NFLPA have a reasoned disagreement on how the CBA is interpreted. Why should players with finite careers receive harsher punishment because of that?

Giving the Parties a Do-Over.

The handling of this situation has been a blackeye to both the NFL and the Saints. It has destroyed reputations. If the goal of the NFL is to defend its integrity, it's bizarre to do it in a way where the NFL says they are being fair, but they reserve the right to be unfair and to do things whatever way they want.

The reasoned, sensible thing to do would be to make all the suspensions go away. The Saints draft punishment and fines are significant enough, and the public attention to this situation clearly would deter further similar conduct.

It would be reasonable to agree that the Saints and the NFL have a different point of view of what transpired. That often people can honestly have two different points of view of the same events. And have all the parties work together to make sure that no pay for performance system of any sort ever happened in the NFL again. And everybody lives happily ever after.

That makes too much sense so it won't happen. And reason dies like it has since the beginning of time.

Steph Stradley