Haley Cometh

It seems increasingly likely that Nikki Haley is going to make some trouble for Donald Trump. Not necessarily threaten to beat him out for the nomination — that depends on factors I can’t foresee at this point — but cause him real problems that he and his campaign seem ill-equipped to handle.

Haley’s quick emergence as the Trump alternative, while nowhere near a sure bet, looks like at least a reasonable wager. Polls suggest that she’s closing on Ron DeSantis for second in Iowa, her weak state of the first three contests. If she does finish second there on January 15, she will be the top political story of the week heading into New Hampshire, where she’s already polling a solid second — and where a sizable anti-Trump contingent could easily hold him below 50%.

A reasonably close second in the January 23 Granite State primary — let alone the first place predicted by Haley’s new BFF, Governor Chris Sununu — should pretty much finish off the DeSantis and Chris Christie campaigns, whether they actually drop out or not, along with those of Vivek Ramaswamy and Asa Hutchinson. Haley can then pretty much skip the Nevada caucuses and head to her home state of South Carolina, which votes on February 24.

That’s a month for the media to make hay of having something that looks plausibly like the real, live Presidential nomination contest it was being denied this cycle.

I suspect that, barring other major developments, Trump will continue to hold a substantial lead nationally. But don’t underestimate the appetite for a competitive Presidential nomination contest, once there’s a taste for it. Remember how long the 2004 John Edwards campaign was propped up as viable? No, you probably don’t, but I do, and it was a looooong time. Ted Cruz in 2016 too.

My point is, in the increasingly likely scenario outlined above, expect a lot of attention on the Trump-Haley showdown. There will be tremendous pressure for Trump to debate her. There will be great attention to any polls that lend credence to her surge. She and her supporting PACs will raise a lot of money; they will also spend a lot of money. People, both within and outside Republican voting circles, will become very familiar with her.

Nikki Haley, for whatever you might think of her, can make an awfully good impression on a lot of the public. She’s got a great first-generation American story, she’s got a politically stellar family, she’s a smart and amiable campaigner, her resume is top-notch, and — crucially — she’s a woman.

An awful lot of Americans are likely to be gathering this solid impression of her, right around the time that they also get their first look at Trump calling her “birdbrain.” Which he does all the time, just usually not with ordinary people paying attention.

Eight years ago, perhaps he could have stopped himself from crudely belittling her. Maybe. Maybe his communications team back then would have restrained themselves against a woman in the primary. I don’t think his current spokesperson, Steven Cheung, has any setting other than ‘Vile Insult’ to switch to.

I think Trump will do himself damage insulting Haley. I think if he debates her, it will go badly for him; and if he doesn’t debate her, that will go badly.

I’d wager that he will claim that she is constitutionally ineligible to be President — a theory already circulating among some of his supporters. (They allege that her parents were not American citizens when she was born, and that she is thus somehow not a “natural born citizen.”) If not that particular theory, then perhaps he’ll repeat one even more offensive. If Stephen Miller can’t find a way to get the term “anchor baby” into Trump’s speeches I’ll be pleasantly surprised.

I don’t know how much all of this would, if it comes to pass, damage Trump’s general election prospects. After all, Haley’s viability probably can’t last beyond the March 5 Super Tuesday primaries, and then everything pivots to the expected tug-of-war between focusing on the ills of the current or the former unpopular incumbent.

Handing out McKinleys

Groma is not a particularly well-known Boston company. It’s a smallish real estate development and management firm, mostly running some of the city’s ubiquitous triple-decker homes. But, its principals have greater ambitions. Among other projects, Groma is part of a group hoping to develop Parcel 8 in Roxbury into a major multi-use “gateway to Nubian Square.”

Perhaps that helps explain why Angelo Drake, Groma’s managing partner, contributed $1,000 — the maximum allowed for the calendar year — to Acting Mayor Kim Janey’s campaign committee. And he didn’t stop there. Drake, whose previous contributions to local pols consisted of a single $100 gift to Marty Walsh, gave $1,000 each to three other candidates for mayor: John Barros, Andrea Campbell, and Jon Santiago. Groma’s two other executives did the same, and its top advisor has given the maximum to Barros, Janey, and Santiago.

Playing the field is not unusual in local politics. I have identified 185 individuals who, as of reporting in late June, have contributed $1,000 each to more than one of the six main candidates for mayor this year. Together, those 185 are responsible for $438,000 of the $4.4 million total raised by those candidates in 2021, or just about 10 percent.

There are 12 others, in addition to the Groma folks, who have given the max to four of the six. They include some better-known names, among them developer Howard Cohen; Cheryl Cronin, CEO of Boston Public Market; The Boston Foundation chair Sandra Edgerley; philanthropist Amos Hostetter Jr.; nightclub owner Edward Kane; New England Patriots president Jonathan Kraft; and Eastern Bank chairman Bob Rivers.

There’s nothing wrong with giving to more than one competitor for a single office. Many people with business in the city develop relationships with many politicians over time.

It is worth noting, however, that maximum donors are critical to the candidates’ ability to compete. Though campaigns tout their grassroots fundraising, roughly 58 percent of all the money raised by Boston’s six mayoral candidates thus far in 2021 has come in $1,000 increments from individuals. Michelle Wu has depended the least on those funds, receiving 48 percent of her funding that way. Santiago has most heavily relied on them, at 65 percent.

Nearly one-quarter of those who have given $1,000 to Santiago have also given the maximum to at least one other mayoral candidate. The same goes for Janey. Barely one in ten of Wu’s $1,000 donors has given to a competitor as well — in most cases, Andrea Campbell.

More than 30 people have given the maximum to both Campbell and Wu this year; some of them also gave in 2020, as both challengers entered the race early. The most common overlap has been Janey and Santiago, with 56 individuals maxing out to both. Annissa Essaibi-George and Santiago have 40 $1,000 donors in common; Campbell and Janey, 37. The least common combination: Essaibi-George and Wu. Kane is the only maximum contributor to both of them.

Money At Large

It happens every two years: eager, optimistic Boston city council candidates find it surprisingly difficult to raise money in the quantities they desire.

It’s really hard to raise money for a municipal campaign — and really hard to compete without it. And it turns out that those personal pledges don’t all turn into actual contributions; your networks of professional contacts don’t support you quite as much as you imagined; and those call lists of Democratic donors get tedious real fast.

But this year’s crop of candidates has more of a Midas touch, particularly the impressive group running at-large. The eleven challengers raised close to a combined $150,000 in April, and have well over $400,000 banked.

A strong field has been tempted by two openings among the four seats, caused by Annissa Essaibi-George and Michelle Wu running for mayor.

And who knows, rumors might pan out that Rachael Rollins gets nominated as US Attorney for Massachusetts, and Governor Charlie Baker appoints Michael Flaherty to replace her as District Attorney, creating a third at-large hole. Plus, the fourth at-large councilor, Julia Mejia, could be vulnerable with just one term under her belt after winning that final city-wide seat by a single vote in 2019.

But we’ve had impressive candidates and open seats before. Of the challengers in 2019, 2013, and 2009 — including Felix G. Arroyo, Annissa Essaibi-George, Tito Jackson, Julia Mejia, and Ayanna Pressley — only Wu in 2013 would crack the 2021 top 5 cash-on-hand with their end-of-April numbers.

The top money-makers:

Ruthzee Louijeune You’re gonna want to learn this name. She is beloved by the Elizabeth Warren political team, where she served as general counsel; one of Louijeune’s early maximum donors was Bruce Mann, aka Warren’s husband. She raised close to $50,000 in April, coming in amounts large and small from all over the country, and ended the month with more than $125,000 in the bank.

David Halbert Two years ago, in a solid first at-large campaign, Halbert was struggling to keep $15,000 in his account. Today he has $65,000 banked; his April haul of under $10,000 was a decline, but his head start has him in good position.

Kelly Bates Bates and her impressive networks have been outshined by Louijeune, but she raised $26,000 in April and has more than $60,000 in the bank — similar numbers to Wu’s at this stage in her winning 2013 campaign.

Alex Gray Gray picked up some press coverage, largely focused on his legal blindness, but he’s been steadily building his stash. Raised a little over $10,000 in April, and has nearly $45,000 banked.

Said Abdikarim Abdikarim, who resettled to Boston from African refugee camps as a teenager, has tapped into the city’s underrepresented African Muslim population. Nurses, teachers, ride-share drivers and engineers are giving generously to his campaign, which raised $25,000 in April and has well over $40,000 in the bank.

Erin Murphy In her solid 2019 campaign, Murphy hadn’t even started raising money at this point; she raised less than $50,000 by the September preliminary and still finished sixth. This year she’s stepped up the pace, although she’s still running behind some others: she took in nearly $15,000 in April and has close to $35,000 in her account.

Jon Spillane Spillane raised just $5,000 in April, and has a little less than $25,000 in the bank. That’s disappointing compared to his competitors, given his credentials — but it’s about on pace with successful candidates Mejia in 2019, or Arroyo in 2009. It just shows how different this year’s at-large race is shaping up to be.


[Added May 7]

Carla Monteiro A little late coming in with the bank report on her first month in the race, Monteiro reported an impressive $23,000 raised, much of it in small-dollar gifts from Boston Cape Verdeans.

Who Is The Boston Electorate?

The Boston electorate has clearly been changing in the past several years, in three different ways:

  1. Changes in the overall demographics of Boston’s adult population;
  2. Changes in the political attitudes of Bostonians, in response to Trump, racial issues, etc.
  3. Changes in the political participation of eligible Bostonians.

These recent election cycles have, in my opinion, been so anomalous that it’s a fool’s game to predict how points 2 and 3 will play out in the 2021 mayoral race.

I’m usually up for a good fool’s game, how about you?

I propose that there are, broadly speaking, three types of Boston voters this year. The game is to say what percentage of the actual voters in this year’s mayoral election will fall into each category.

  • Genuine Change Voters: These voters want to feel that their vote is going toward pushing Boston toward significant progressive change.
  • Surface Change Voters: These voters want to feel that their vote is going toward making Boston more progressive and equitable, but without significantly changing too much about how the city works.
  • Anti-Change Voters: These voters want to feel that their vote is going toward preserving the general existing order of things in Boston.

If you look at some recent Boston elections — and how many of the prominent mayoral candidates are positioning themselves — you might break it down as perhaps 45% Genuine Change; 35% Surface Change; 20% Anti-Change.

I’m not so sure. What do you think?

This isn’t 1993

Here’s a fun fact: Tom Menino was Acting Mayor for just 10 weeks when he won the 1993 preliminary election that propelled him to an easy November victory and 20 years running the city of Boston.

By my count, Kim Janey will log 26 weeks as Acting Mayor — a full half-year — by the time the September 21 preliminary rolls around. To be honest, I don’t think Team Janey needs to be trying so, so hard to pound the message that she’s the mayor; over that period of time, I think it’s going to sink in with people.

Importantly, that will include the entire FY’22 budget cycle. The mayor — or Acting Mayor — must, per the pesky city charter, submit a budget proposal to the City Council by the second Wednesday in April. That’s in a week.

That means that Janey, who describes herself as an agent of change, can’t entirely get away with vague platitudes. She can, for instance, make a full-bore proposal for “reimagining” policing in Boston, as she put it in her campaign announcement speech Tuesday morning; or she can propose more politically palatable half-measures; or she can propose nothing much different at all. But she has to put her name to something — and any of them guarantees criticism from somewhere.

The council, which happens to contain several of Janey’s competitors, get to spend the next several months holding hearings and making comments about the budget. That, in fact, is part of why the other mayoral candidates have been quiet as Janey hogs the spotlight: they see the budget proposal as the bell that will end the period of polite deference to the historic new Acting Mayor, and start some policy debates that will define where they all stand.

Menino — who by the way was head of the council’s budget-reviewing committee before becoming Acting Mayor — never had to go through that. He dealt with things as they arose, and other than that mostly talked about how the city needed to learn to do more with less; which he could then back up with impressive knowledge about how the department or agency in question could save money or operate more efficiently.

All of this might very well work to Janey’s advantage. Six months in charge, and a full budget cycle with the city council, could very well solidify her image of seriousness and heft in comparison with the others.

Or, it could bring significant peril. I don’t know; I only know it’s very different from 1993.

#mapoli Prediction Contest!!!

Voters might not realize it, but greater Boston is experiencing its most interesting primary in years. The only thing missing — until right now — has been your chance to show that you can predict the winners better than all the other smartypants pundits out there.

Answer all 10 questions below and submit them as comments to this post, or to [email protected], or shoot them to me on Twitter or Facebook or whatever works best for you.

The deadline for entries is SUNDAY, SEPTEMBER 1 at midnight.

Please provide your name, although I will not disclose your votes (so nobody will know that you predicted that the candidate you work for will lose). The winner will receive public acclaim and bragging rights.

(Apologies to the Beacon Hill set: I decided not to include any state legislature races.)

Please remember to answer all 10 questions!

  1. Who will win the Democratic primary for Governor: Jay Gonzalez, or Bob Massie?
  2. What percentage of the vote will Scott Lively receive in the Republican primary for Governor?
  3. Who will win the Republican primary for U.S. Senate: Geoff Diehl, Jack Kingston, or Beth Lindstrom?
  4. Who will win the Democratic primary for Secretary of the Commonwealth: William Galvin, or Josh Zakim?
  5. Who will win the Democratic primary for Lieutenant Governor: Quentin Palfrey, or Jimmy Tingle?
  6. Who will win the 7th Congressional Democratic primary for Congress: Michael Capuano, or Ayanna Pressley?
  7. What percentage of the vote will the winning candidate you selected receive in that Capuano-Pressley race?
  8. Who will win the 3rd Congressional Democratic primary for Congress: Jeff Ballinger, Alexandra Chandler, Beej Das, Rufus Gifford, Leonard Golden, Dan Koh, Barbara L’Italien, Bopha Malone, Juana Matias, or Lori Trahan?
  9. Who will win the Democratic primary for Suffolk County District Attorney: Evandro Carvalho, Linda Champion, Greg Henning, Shannon McAuliffe, or Rachael Rollins?
  10. Who will win the Democratic primary for Middlesex County District Attorney: Marian Ryan or Donna Patalano?

Curt Schilling Is A Basement Buffoon

Curt Schilling says that he intends to run for U.S. Senate in 2018, because he is so dismayed with Elizabeth Warren. Putting aside his controversial statements and entrepreneurial failure, the hurler wants us to view him as a person who understands public policy and can present his opinions as a legitimate contrast to Warren’s. So, is that the case, or is he an ignorant, puffed-ego imbecile who fancies himself a Suuuper-Genius?

Spoiler alert: it’s the latter.

After first declaring his interest in running back in August, which triggered a public poll of his chances in September, Schilling decided to demonstrate his policy chops on his blog:

Apparently someone decided to run a poll covering a hypothetical race between Senator Warren and I. I got 29%, which is a lot more than I expected considering I’ve never stated a public position on legislation except to state my opinions as a Christian, Conservative, Constitutionalist and American.

I’ll play along.

Elizabeth Warren wants free education at public universities in the United States.

In Massachusetts alone there are 29 public colleges and 191k students (numbers from ’14 and ’15 or last census data).

Remember as we go through this, every single dollar mentioned in this argument is a NEW TAX DOLLAR that does not exist today.

The average in state tuition (using a national average) we will put at $23,000.

So in 2017 this state alone needs to come up with 4.393 BILLION dollars for free college PER YEAR.

Better yet, 17,572 BILLION every 4 years for a college student. That’s 17.572 BILLION tax dollars we currently DO NOT PAY. Now that’s if the state alone could afford it, which is the ONLY way I’d be for something like this.

Nationally? Because that is what her and her colleagues want.

Research states that by 2018 there will be 15.6 million students enrolled at the 1700 or so 2-4 year public colleges.

That amounts to 358 BILLION dollars annually, in taxes that DO NOT CURRENTLY EXIST….

It goes on a bit, but that’s the basic argument: A) Elizabeth Warren advocates for free public university education for everybody; B) the math on that suggests a $358 billion price tag above what state and federal governments currently spend (“every single dollar mentioned in this argument is a NEW TAX DOLLAR”).

I don’t think it’s unfair to judge Schilling on this; it isn’t some offhand comment from his past, or gotcha question on a topic he was unprepared for. He chose this playing field, to present as his first substantive policy critique as a self-announced political figure.

So, in formulating this argument, did he consult subject-matter experts? Review Warren’s proposals? Read analyses of her bills? Maybe at least listen to a podcast?

Or did he sit in a basement and figure it all out with his own Suuuper-Genius brain?

Well, starting with part A of his argument, we find that… well, we find that his entire critique collapses into a fetid dungheap, because Senator Warren has never proposed or advocated free education at public universities.

Warren has been a leading proponent of plans for debt-free higher education — specifically, that every student should have at least one available option for getting a college education without accumulating personal debt to pay for it. That, as any reasonably sentient being can understand, is quite different from a plan to have all public college offered free of tuition.

Warren’s actual position on this topic is not difficult to ascertain. She has introduced legislation for it, she speaks publicly on it quite often, and it’s been much noted that her position is a sharp break from that of Bernie Sanders, who does call for free public college.

Warren has also taken lots of other very public, quite controversial, and easy-to-criticize positions on a variety of issues. So, it’s really quite remarkable that as Schilling, a self-professed great critic of hers, sat down to select a first position to criticize as a prospective opponent, he chose one that doesn’t exist.

So basically, Curt Schilling is the political equivalent of the dunderhead Sawx fan who calls into talk radio insisting that Curt Schilling’s problem is that he throws so many knuckleballs.

Part B of the argument is thus pretty much moot, but on the off-chance that Warren outs herself as a closet free-public-college advocate, let’s see if the Suuuper-Genius checked his math with anybody.

Unfortunately, he did not. Average in-state tuition for public college is not around $23,000 a year; it’s around $9,400 a year. There is not a single public college in the country, in fact, that charges as much as what Schilling claims is the national average. He may have accidentally used a recent figure for out-of-state tuition; or, he may have used a recent figure for average total cost (including room, board, supplies, transportation, and so forth) at four-year public colleges. Who knows?

Even had he snared the correct number, that would still be the wrong figure to use. Much of that $9,400 is already paid for by various types of grants; the relevant figure is estimated average net tuition. That has risen sharply in recent years, and is now just under $4,000 for in-state four-year public college. (Notably, Warren concentrates much of her policy work in this area on driving this figure down, but that’s another conversation.) For two-year public colleges, the estimated average net tuition is effectively zero, a result of aid being determined by total cost.

Schilling, tapping away at Google, did come up with a legitimate estimate for the number of public college students in 2018. However, in doing the math it’s important to break down the four-year from the two-year institutions; and to separate out the out-of-state students, who Schilling seems to imply would not be eligible for Warren’s non-existent “free tuition” plan.

Anyway, just doing the straightforward math as Schilling does, but with correct numbers, you get a cost of somewhere in the neighborhood of $40 billion nationally, or about one-ninth of what he came up with.

Or, you could look at actual data, which says that public colleges collect roughly $70 billion in tuition and fees, including from out-of-state students.

Or, you could look at Sanders’s proposal, which estimates a $75 billion annual price tag. And, you could look at analyses of that plan for discussions of that figure, including cost effects from changed behavior due to the policy change.

Or, of course, you can sit alone with your great big Suuuper-Genius brain and figure it out for yourself.





Don’t Blank

So, now I get to say to Massachusetts Governor Charlie Baker and other anti-Trump Republicans what I’ve been saying to disgruntled lefties for years:

You’re doing democracy wrong.

The impulse to blank a ballot, or to effectively do so by tossing a protest vote to an unelectable candidate, is not hard to grasp: “I have two options before me, neither of whom come close to representing my idea of who should fill the office, so rather than affirmatively select the less-bad option I’d rather opt out of that Sophie’s choice.”

Well, I hate to break it to you, but representative democracy is not about getting what you want. In fact, it’s specifically about not getting what you want.

There are systems of governance where you get to have things run the way you want. Or, rather, where someone does; one of the significant downsides of those systems is that it’s actually not very likely that you get to be the monarch.

And while it’s quite possible that the monarch will run things in a way you like, it’s not worth the risk of being stuck with a bad monarch. Or, at least, so thought the people who brought you America.

The alternative — resting national sovereignty with the actual citizenry of the vast, sprawling, diverse country — has always been a pretty dubious experiment. Seriously: you, and me, and everyone you run into in the mall, and the Real Housewives Of New Jersey, and those people you block on Twitter, and Eric Church fans, and a couple hundred million other people are supposed to decide on something, anything, let alone something as important and consequential as who will be President for the next four years. Who the hell thought that was a workable idea?

And yet, I think we all agree, a couple centuries into the experiment, that this idea really is the heart of what makes this the greatest nation ever devised.

So, it seems to me it’s all wrong to opt out because the selection of candidates isn’t good enough for you. Your participation is just as much about choosing the lesser of evils — or, put another way, preventing your fellow citizens from doing too much harm — as it is about forming a more perfect union.

Plus, you really shouldn’t be allowed to wear the “I Voted” sticker if you blank the top race.

[Note: I’m specifically talking about blanking because you find neither candidate acceptable; blanking a down-ballot race due to lack of information is a different matter, and in my opinion sometimes justifiable.]

Failing The Chatman Test

Well, on the plus side, Demond Chatman now has a legal standard in Massachusetts courts named for him.

Unfortunately, he failed it, and as a result will continue to serve out a life sentence in prison, for a crime I believe he almost certainly did not commit.

Hey, you win some you lose some. Chatman was convicted in 2002 of murdering his mother; after three years of reporting I laid out what I could about the problems with the case in the Boston Phoenix. I have been willing to discuss any aspect of my reporting on the case with the Suffolk County District Attorney’s office or Boston Police Department ever since, but they have never shown any interest in addressing any of the issues raised. Nor have they actually disputed any of my reporting, or given any explanation about the problems I pointed out.

The most I have ever gotten from any of them has been the dismissive retort of prosecutor Mark Lee, that if Chatman is innocent then why isn’t he appealing based on innocence?

The answer to that, from my perspective, is pretty much the same as my attitude about why Chatman’s trial attorney didn’t pursue or discover the things I did: our criminal justice system is pretty fucked up.

In the case of the original trial, Chatman’s court-appointed attorney was hampered by at least three things. First, as is typically the case, by the time he received the case it had been completely screwed up by decisions of detectives (and others) who from the first hours were interested only in building a case against the guy they thought did it. Second, with very limited time and resources available to him, he had to pick and choose which elements of the case to look into, based on what he thought might be the most fruitful defense strategy.

And third, Chatman’s trial attorney was hampered, in my opinion, by the fact that Chatman is a paranoid schizophrenic with borderline retardation, who could not fully grasp why things were happening, and occasionally believed that his own attorney was conspiring with the prosecutor against him, in part by reading his thoughts.

This brings me back to the appellate attorney’s strategy.

Defense attorney Ed Hayden (who, as he is the first to admit, has very little appellate experience, but hey bad luck being a poor defendant in the Commonwealth) has, for close to 15 years, pursued one reasonable strategy: arguing that Chatman was not competent to stand trial in 2002, on account of his mental illness.

It’s important to point out here that in the great Commonwealth of Massachusetts, if you happen to be convicted of murder in Suffolk Superior Court, your appeals are handled by the same judge who oversaw your trial. In other words, you are asking the judge to rule that she fucked up your case.

There are, to be fair, some rational and understandable reasons to proceed this way. At least, in theory. In practice I have seen it not work out so well. It seems to work better with some judges than with others.

Chatman’s trial judge was Barbara Rouse. She has a reputation, among some defense attorneys I know, of being not very reasonable or empathetic toward defendants. The actual terms they use are nastier, but we don’t need to get into any of that.

Of course, that judge doesn’t get to be the final word. In murder cases, the next step after her is also the final authority: the Supreme Judicial Court (SJC). And that group — about to undergo considerable reconstitution due to three retirements — has often shown itself more willing than you might think to rule that their lower-court colleague screwed up. But, that’s not to say there isn’t institutional resistance — and, indeed, legal resistance, as there is quite a bit of deference to the trial judge built in legally, as we shall return to below.

Rouse, for these many years, has treated Hayden’s theory of Chatman’s incompetence to stand trial with utter disdain. I don’t think she would mind that characterization; she has made no secret of it. Her attitude, spoken and written plainly in so many words, is that Chatman looked fine to me during the trial, so who cares what your so-called experts say.

That has also been the attitude of Mark Lee and the DA’s office — it is worth noting that, as with the judge, in the appeal process the state is represented by the same office that prosecuted the case, and usually, as in this instance, by the same person. So, there is a great professional and psychological resistance to accepting error on that side as well.

The only player in the original trial who changes is the defendant’s attorney, because the defense bar is the only one who sees the conflict of interest and removes it. A new attorney, the thinking goes, might be somewhat more able and willing to question whether the trial attorney screwed up, than the trial attorney himself would be.

Anyway, long story short — though please bear in mind that it was a ridiculously long story during which Chatman rotted away in prison for more than a decade — Rouse, and Lee, and even at times the original trial attorney, blocked and tackled while Hayden tried to show that Chatman’s ability to assist in his own defense was impaired by the well-documented mental illness which he concealed from his trial attorney because that’s what people with affective schizoid disorder do.

Finally Hayden was able to put a big stack of material in front of Judge Rouse, asking for a hearing on the competency issue to determine whether the trial should be tossed. And Rouse, naturally, ruled that there was no need for a hearing because it was all nonsense, and thus the appeal for new trial is denied.

But on appeal of her decision, the Supreme Judicial Court (SJC) ordered Rouse to have a hearing on it, because hey you know there actually should be some way for a guy to show that he was incompetent to stand trial, if that wasn’t caught at the time of the trial.

I wrote a little something about it a couple of years ago, when we were at that stage of things.

Rouse, openly annoyed about the SJC’s ruling, held the hearing. Then she ruled that she was right in the first place. So, back to the SJC, to see if they would actually overrule her finding on incompetence.

That decision came down this week, and the answer is no. Justice Cordy, writing for the court, referred to its previous ruling in the case as having established “the Chatman test.” This is worth noting for convicted individuals in Massachusetts:

Therein, we articulated a new framework appropriate for evaluating a defendant’s competency postverdict where the issue had not been raised at trial. Like the traditional competency test, the hallmark of a postverdict competency inquiry is the defendant’s “functional abilities,” as opposed to “the presence or absence of any particular psychiatric diagnosis.” To determine if a criminal defendant is competent, we look to (1) whether the defendant has “sufficient present ability to consult with his [or her counsel] with a reasonable degree of rational understanding,” and (2) whether he or she has “a rational as well as factual understanding of the proceedings”.

The newly articulated test differs from the traditional competency proceeding not in substance but in burden of proof. If the issue is raised at trial, the Commonwealth would bear the burden of establishing competence by a preponderance of the evidence. The postverdict test, on the other hand, requires that the defendant establish “by a preponderance of the evidence that the Commonwealth would not have prevailed had the issue been raised at trial,” meaning that the defendant bears the burden of establishing that, had the issue been raised before or during trial, the Commonwealth could not have proved either the first or the second prong of the competency test.

Now, remember how I said earlier that there can be considerable deference to the lower court judges built into the system?

In the Chatman test, Cordy writes, that is particularly true:

Because a postverdict motion requires a retrospective determination of the defendant’s competency, “the weighing process must necessarily place greater emphasis on evidence derived from knowledge contemporaneous with the trial.” For that reason, when the postverdict motion is heard by the same judge as presided over the trial, the “judge’s determination of competency is entitled to substantial deference ‘because the judge had the opportunity to . . . evaluate the defendant personally.'”

What he is saying here is that the trial judge, since she was there at the time, has a better grasp on Chatman’s competency than an actual psychiatric expert in determining competency, who comes around later. And, since the appellate judge is the trial judge, she should naturally want to rely first and foremost on the observations of, well, herself, from 14 years ago. So, if the appellate judge asks herself, the trial judge, whether she feels pretty confident that Chatman was competent, and if the appellate judge tells the SJC that she, the trial judge, was pretty convincing in her opinion, then really who is the SJC to second-guess that?

I’m over-snarking this, of course, but, you know, that’s how I deal with the end of the appeals process for a guy I’m convinced almost certainly committed no crime at all.

We might now actually get the chance to find out if he did. The failure for Chatman to win a new trial might, paradoxically, open the door to find out whether he’s actually innocent.

The New England Innocence Project officially accepted Chatman’s case several years ago. But, as they told me at the time, they generally don’t start actively working on a case while it is still in the regular appeal process. Understandable, for triage reasons, if a tad frustrating.

With that appeal now denied, NEIP can start working on Chatman’s case, if and when they have the time and resources available to turn attention to it.

Who knows how long that process might take, or if it’s even possible to prove anything at this point. Chatman will be waiting, in his prison cell, to find out.

An Open Letter To Mark Wahlberg

Mr. Wahlberg:

Some years ago, a veteran of the Boston Police Department swore to me that, back in the day, everybody in the department believed that Danny Keeler had staged the heroic Charles River rescue that earned him fame and top honors in August, 1980.

I have no reason to believe that it’s true. It’s one of many unconfirmed or unconfirmable tales I’ve heard about Keeler over the years, in addition to the definitely true stories I have reported. But the fact that a colleague would believe such a remarkable thing surely suggests something about Keeler’s self-aggrandizing and manipulative tendencies.

So, I find myself a bit concerned to read that you will be portraying Keeler in your upcoming movie about the Boston Marathon bombing, and that you have been spending time with him in preparation for the role.

I earlier had some concerns, upon realizing that Keeler was featured in the book Boston Strong by Casey Sherman and Dave Wedge, which is one of your source materials. But, I was relieved by the treatment of Keller in that book (which, by the way, I recommend). Sherman and Wedge portrayed Keeler as one of many people pulled into the events, whose collective experiences paint a tapestry of the city’s experience.

The book made no attempt to show Keeler actually doing much of anything significant that day, or in the subsequent investigation and pursuit of the Tsarnaevs. This fits with what was reported in the Boston Globe and elsewhere.

I might wonder whether Keeler’s self-reported thoughts were quite as cliched as reported in that book. But I don’t generally doubt his bravery, ability to take charge, and compassion for victims, all of which he has shown elsewhere in his policing career.

Sherman and Wedge even go out of their way to recount some of Keeler’s past lowlights, in their brief overview of his back story. So does the excellent columnist Kevin Cullen, in his generally flattering Boston Globe article about Keeler today.

Although, there is a lot they don’t include; you may want to read, for example, my 2006 dive into his troubling record.

If you have time, you might want to also read my award-winning feature dubbing his unit “The Worst Homicide Squad In The Country.” Or my investigation documenting how Keeler and other homicide detectives routinely came forward with “significant, previously undisclosed evidence [that] came to light often just days before trial.” Or this shorter piece where I showed that “Keeler’s Poison Spreads To Federal Court.” Or this article in which I revealed that the work of Keeler and others had created “Reasonable Bias” among Bostonians against the Boston Police Department. Or my expose of “The Overtime Game” his homicide unit was using to rack up bogus overtime pay.

There was no need for Sherman and Wedge to get into all that. But if your movie is going to star you as Keeler, I have to suspect that you will expand his role in the events around the bombing, making it significantly greater than it actually was. That seems to be confirmed in Cullen’s article, which says that your “Keeler” character will be “a composite of other police officers who worked on various parts of the bombing case.”

I have no issue with movies creating composite characters, and fictionalizing events. I get that. I can even accept it as part of the process of making a movie about something as important to Boston as the bombing.

But turning Keeler into a hero of those events would be a great mistake. It would, in fact, be one more in his long, inglorious career of spinning his own heroic story to cover his actual grave failings.

Consider this: by spinning a tale of his Patriots Day heroism and leadership, Keeler has effectively forestalled questions about why he was placed in charge of the Boylston Street security detail, which was specifically tasked with watching the crowds for potential harm-makers — and how that team completely failed in that task. (None were able to recall anything useful about the suspiciously acting young men after the fact.)

It wouldn’t be the first time Keeler has used self-created public glorification to cover for his own inadequacies. He has a long history of headline-grabbing, to overshadow his long trail of wrongful convictions, poor investigations, untruthfulness, and other misdeeds.

Indeed, that’s why the crazy story of staging a fake suicide rescue seems just a little bit plausible: that front-page heroism effectively saved Keeler from very nearly washing out of the department in his first year, on the heels of a four-day suspension and other troubles.

So, Mr. Wahlberg, please be wary of believing anything Keeler tells you, or of turning him into a Boston hero on-screen. There are others far more worthy of your attention and portrayal.