Texas

Showdown in Marfa

It's high noon in far West Texas, where a shootout looms for the soul of one of America's last unspoiled towns. But these aren't typical gunslingers. Some of them wear Prada.

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Showdown in Marfa

The light of the West Texas sky streams through big plate-glass windows and illuminates Jason Willaford and his wife, Rea, sipping freshly ground coffee in the Marfa Book Co. The slim and attractive couple, who met in Los Angeles, moved to Marfa last summer to open Galleri Urbane, a boutique specializing, like so much of the town, in contemporary art. So far, their experience has been wonderful. “Marfa’s a lot more sophisticated than most places,” Willaford says. “When someone here sets out to do something, they do it nice. That’s why people like it here — no Wal-Marts.”

When Tony Trento imagines Marfa, his voice, thickly upholstered with his native Long Island, N.Y., accent, grows excited. “Marfa needs more retail stores and affordable houses,” says the developer, who owns the American Plume and Fancy Feather Co., based in Marfa, which crafts boas and masks from turkey feathers and sells them to exotic dancers and Las Vegas showgirls. “There could be a truck stop, a McDonald’s, or maybe,” he says, contemplating something truly special, “a Wal-Mart.”

A classic Western showdown has come to the hottest little town in the country. Set amid the cedar-shaded, yucca-dotted lands of West Texas, surrounded by grasslands as wide as the Serengeti, Marfa may be the last un-Starbucked place in America. In the past few years, a covey of A-list artists, corporate players and real estate speculators have descended on the tiny town (pop. 2,121). Enchanted by its spare beauty — think “The Last Picture Show” with a Christian Liagre makeover — they’re also drawn by elite cultural institutions like the Chinati Foundation, dedicated to hip installation art, and the Lannan Foundation, a prestigious literary organization.

Trailing in the trendsetters’ wake has been the national media. Marfa’s press clips glow like newly lit luminaria. Publications such as Vanity Fair, Elle and ArtForum venerate Marfa’s Victorian ranch houses and Texas Territorial adobes, the burgeoning art scene and its rich patrons. The movie “Giant” was filmed in Marfa 50 years ago, when its stars James Dean, Elizabeth Taylor and Rock Hudson could be seen kicking around town. These days, the scene makers include Dan Rather, Frances McDormand, Dwight Yoakam and Tommy Lee Jones. A National Public Radio station is coming. The real estate madness already has. Four years ago, Marfa adobes were selling for $40,000. They’re now $200,000 and no doubt a good deal higher after the recent New York Times story, “The Great Marfa Land Boom.”

It’s a familiar pattern. Western havens like Aspen, Colo., Taos, N.M., and Missoula, Mont., were Marfas once, playgrounds for coast-hugging hipsters who could slip into jeans and the rustic camaraderie of the outback. But those towns are full up now, victims of their popularity. Now the sagebrush Medici come to Texas, piloting the corporate Gulfstream into tiny Marfa Municipal airport and bellying up to the jes-folks atmosphere of Joe’s Bar, where the Bud Light costs $1.75. The town remains an aesthete’s dream, devoid of Olive Gardens, Best Buys and any sign of the suburban middle class. Rather, Marfa is the honest texture of adobe and fine art set against a big sky. It’s the simplicity of line and the haunting emptiness of the land.

But this isn’t what Marfa means to everybody in Presidio County. Most residents don’t own much in this southwest corner of George Bush’s Ownership Society. The county is 84 percent Mexican-American; 36 percent of its residents live below the poverty line (the U.S. average is 12 percent). Marfa itself is 70 percent Hispanic.

Today, on Marfa’s main street, tony art galleries and wine shops are driving away traditional cafes and shops, whose local owners can’t afford the new sky-high rents. Everywhere you go the townsfolk, independent Texans to the core, lament the changes to their community. The term “ChiNazi” is used locally to describe anyone from out of town who arrives with artistic ambitions and a superior attitude. Observes one local cattle rancher, who asked to remain anonymous: “We’re filling up with triple A’s — artists, assholes and attorneys.”

Some of the new businesses hire people who were born and bred in Marfa, and that helps the local economy. At the same time, the cost of living is rising above their means, and they welcome Trento’s plan for big-box retail and ranchettes. To them, a steady job and an affordable home near extended families are more enticing than living in little Bauhaus on the prairie.

The ever-widening chasm between social classes in America has reached West Texas, with acrimony erupting all around. Trento’s plan threatens Marfa’s art community, spearheaded by the Chinati Foundation, which is determined to prevent the ambitious developer from besmirching its views. The tussle between subdivisions and sightlines stirs up questions to make the culturati squirm in their Eameses. Are the aesthetic desires of an elite more important than the economic needs of the majority? Will Marfa be a town where working-class residents can thrive or will it become Marfa’s Vineyard, a weekend sandbox for people whose tastes veer more toward pinot noir than Dairy Queen? Are big-box retail jobs less desirable than “All Things Considered”? Should you sell a Frenchman your adobe? What price arugula? Marfa is about to find out.

Marfa has always entertained great notions. Founded in 1883, it was named by an engineer’s wife after a servant in “The Brothers Karamazov.” She read the Dostoevski novel while waiting for her husband to finish working on the Southern Pacific railroad. Soon enough, the town grew rich on ranching. In the 1930s and ’40s, cattle barons attended elaborate balls and afternoon teas at the Hotel Paisano, an ornate, stuccoed affair that still stands and looks like a bit of Old Seville marooned west of the Pecos.

After World War II, Marfa was in trouble, its robust population having dwindled with the shuttering of its military bases. In 1971, the isolated town was just the place that hard-living Manhattan sculptor Donald Judd was looking for. He wanted a big backyard for his large works and here it was. A fractious and ornery character, Judd cottoned immediately to Marfa’s seclusion and affordability. With help from the Dia Foundation, a New York-based cultural organization founded by German art dealer Heiner Friedrich and his wife, Houston oil heiress Philippa de Menil, Judd began acquiring Marfa real estate for his installations. After a falling-out in 1986, the partners reached an out-of-court settlement that created the Chinati Foundation. Judd oversaw the foundation until he died of lymphoma in 1994.

Minimalism wowed the contemporary art scene in the ’70s, and because Judd was a giant in the movement, he drew disciples from all over the globe to West Texas. As minimalism increased in popularity, so did Judd’s mecca. Many of the pilgrims today evoke religious metaphors for the stark beauty of his work and its setting in wild Texas. A bumper sticker seen around Marfa sports the acronym “WWDJD?” (What Would Donald Judd Do?)

Visit Chinati and you can see why Trento’s planned subdivision is as welcome as a belch during a church service. Located in the low-slung barracks and Quonset huts of the former Fort Russell, the foundation and its spare, wind-swept grounds seem more monastery than museum. Buildings on Trento’s property, just south of the foundation, would obstruct the sightlines.

Today, articulate docents lead art lovers on a four-hour tour of installations created specifically for the site by world-famous artists such as Claes Oldenburg, Dan Flavin and Ilya Kabakov. The foundation’s prized pieces are 100 milled aluminum cubes and giant concrete rectangles made by Judd. These are dusted regularly by the resident interns, usually MFA candidates from Ivy League universities.

Chinati public affairs coordinator Nick Terry credits Chinati with Marfa’s renaissance. “Over the past 10 years, the Chinati Foundation has revitalized Marfa, has activated the economy and the town’s cultural life through manifold new initiatives,” he says. “It has attracted new residents who contribute to the well-being of the region.”

The foundation does try to be a good neighbor. In 2000, it lent the city storage space when Marfa was renovating its Victorian-era courthouse. Each year, Chinati waives its $10 entrance fee and invites the townspeople to its grounds to view works such as Tony Feher’s piece of basalt atop a plastic Tupperware-like container, 75 of which were given to Chinati donors.

In January this year, according to Jack Strain, who oversees American Plume and Fancy Feather Co., Chinati director Marianne Stockebrand “asked in an offhand manner if we were interested in selling to Chinati because they are very much against development south of their property.” Strain named a price, which he won’t reveal, but Stockebrand didn’t bite. “I never did think they were serious about making an offer that would reflect the value,” he says. “He was asking a very high price that we couldn’t afford,” is all Terry will say.

Following the January meeting, Stockebrand embarked on a campaign to stop American Plume from developing its property. On March 7, she wrote a letter to Marfa’s then mayor, Oscar Martinez, and Presidio County Judge Jerry Agan, expressing her concern about American Plume’s plans and their impact on Chinati’s views. Trento’s development “will greatly impact Chinati in its unencumbered vistas of 30 or more miles, its contemplative setting, and its natural wildlife,” she charged. To save the views, she raised some very high brows indeed, enlisting blue-chip museum directors and artist Oldenburg in a letter-writing campaign to force Marfa politicians to pluck American Plume’s plans before they sprout.

Martinez was unmoved, stating his first concerns were for the year-round residents and their needs. “Perhaps the near future will bring us a pharmacy, a dental clinic, dry cleaning and laundry services,” he responded in a letter to Michael Govan, director of the Dia Foundation, which supported Chinati. Judge Agan was also unmoved. “The letter they wrote us said they are all for the little people,” he says. “Just not in their backyard.”

Escaped feathers dance across the land surrounding the American Plume and Fancy Feather building. The company arrived in Marfa 13 years ago, when Trento, who currently runs the 83-year-old family business from Pennsylvania, discovered that Marfa’s arid climate made it a perfect place to dry turkey feathers.

Times are both good and bad for the company. Despite an uptick in business following a 9/11 slump, explains Strain, Trento’s son-in-law, American Plume is feeling the heat from Chinese competition. But thanks to Chinati’s helping popularize Marfa as a destination, the land beneath the factory has appreciated in value, an irony the art foundation probably doesn’t appreciate. In response to rising land prices, Strain and Trento plan to develop the property to boost their bottom line. On the drafting board are plans to subsidize the land into retail stores, 10-acre ranchettes, and a U.S. Border Patrol station.

Trento promises to build up to 20 affordable homes, priced from $40,000 to $60,000 — far cheaper than the antique adobes in town. “The artists and the Chinati people have driven up the costs, scaring the town’s residents,” he says. “I want to make it so the kids that grew up in town and want to stay in Marfa have got a place to go. Marfa doesn’t have much except for the scenery, its history and the open spaces.” The inexpensive homes will be tract housing, but, he is quick to add, built in a handsome ranch style. “Not like the trailer I lived in when I first came to Marfa,” he says.

Many residents welcome Trento’s plan, even newcomers like AmeriCorps volunteer Emily Mahoney, who moved to Marfa last year to help develop regional social services. Finding a place to live proved difficult. “I’m pretty low-income and nothing in town was manageable as far as houses go,” she says. “Marfa is becoming an increasingly difficult town in which to survive, especially if you have a family.”

“I hope Trento sticks to it and achieves what he wants to do,” says Presidio County tax appraiser Irma Salgado. “If not for us, then for our kids. They go to school, graduate, go to college and don’t come back. One reason they don’t stay is because there are no places like Wal-Mart here.” Live 160 miles from a big supermarket or drugstore and Wal-Mart isn’t viewed as the Beast of Bentonville. Instead it’s seen as a symbol of prosperity, job opportunities and, above all, convenience. “Out here, Wal-Mart stands for everything you can’t usually get in Marfa,” Mahoney says.

American Plume employs 13 local women, mostly Mexican-American, to create its boas. They are proud of their work. Posters and newspaper articles hang in the factory’s hallways. Their boas have graced Big Bird as well as coiled around Sandra Bullock in “Miss Congeniality 2.”

Sarah Villa, general manager for American Plume, supervises the artisans, who put the finishing touches on work produced in a sister factory located 58 miles south in the border town of Ojinaga, Mexico. Villa watches as Bertha Gradeja carefully steams, combs and fluffs blue ostrich plumes, readying them for a headdress that’ll dazzle them in Vegas. Above them, hundreds of brightly colored boas dangle from the rafters.

“We’re making art here, too,” Villa says. “These ladies are very talented. They’ve been here since we’ve been here,” she says of her crew. “They’re dedicated and hardworking and more like a family.” She shakes her head over the Chinati Foundation’s refusal to welcome more development. “I’m a lifelong resident of Marfa. All I want for Marfa is for it to thrive. We welcomed Chinati when they arrived. I don’t understand why Chinati doesn’t want Marfa to grow.”

Marfa’s growing reputation as an Aspen in the making is attracting the very rich — not just cash-poor artists and writers — who are giving the town its extreme makeover. The biggest threat to Marfa may not be Chinati or Trento but the town’s incipient fabulousness. How else to describe the Prada jacket cuddling Rainer Judd’s shoulders on a recent cover of Brilliant magazine? The Texas monthly specializing in debutantes, society party pix and lavish interior design devoted an entire issue last October to Marfa. To corral its rising buzz, the magazine trundled out two SUVs from Austin stuffed to the roll bars with photographers, stylists and fashion writers. They liked what they found. “Marfa Matters,” announced its cover. Yes, but to whom?

Rainer’s $34,500 little black number is $9,000 more than the average Marfa family sees in a year. Clearly the magazine wasn’t directed at them. Rather it was focused on the fashionable moths Marfa’s flame now attracts. Air-kiss arbiters Vogue and W have both profiled the Marfa Ballroom, a new arts organization, and its owners: two young Texas heiresses, Fairfax Dorn and Virginia Lebermann.

A more accessible cultural watering hole than Chinati, the Ballroom, housed in a former Mexican dance hall, opened in 2003 with a splash. The Ballroom maintains its independent cultural streak. It has screened Kurosawa retrospectives, hosted a performance artist named Lederhosen Lucil and various national DJs, and invited “Pink Flamingos” director John Waters to lecture in a packed theater for a Wild West evening that evoked the one in 1882 when Oscar Wilde visited Leadville, Colo.

Marfa’s popularity also means economic opportunity for those who understand the outlanders’ tastes. New restaurants like Maiya’s and the Brown Recluse have opened to serve them, and since Marfa is far from the nearest big airport in El Paso, the Hotel Paisano and the midcentury modern Thunderbird Motel, run by Austin hotelier Liz Lambert, mean the minimalist art pilgrims’ progress will be a comfortable one.

Some residents, meanwhile, feel community life has taken a giant step backward. And not just because they feel segregated from the artists. Seeing their town revitalized along the lines of Dwell magazine leaves them cold. “It’s about all the new things going on here — art galleries and things like that,” says a rancher whose family has raised cattle in Marfa for generations. “Newcomers would be better off in local people’s eyes if they did more that involved local people. Right now, you see them in the grocery store and eating together. But they’re not putting in businesses or restaurants that most locals will go to. They’ve come to Marfa because of the quaintness, yet they’re trying to change it, to citify it. Like the bookstore. It’s doing very well, and so is the wine bar, but is that something that is natural to the area of Marfa? They’ve redone the Thunderbird Motel, and that’s great, but is it doing much for Presidio County?”

It is for some Marfa residents, like Zane McWilliams, who’s worked on local ranches, and recently landed a job as a barista at the Brown Recluse. “The Marfa boom’s good if you can get a job from it,” he says. “If I wasn’t here at the Brown Recluse, I’d be digging ditches.”

It’s unlikely, though, that many locals could afford to buy a new home in town. “Houses worth $20,000 or $30,000 are selling for $250,000,” says Presidio County appraiser Salgado. “Adobes worth $20,000 are going for $200,000.” Like thirsty cattle who can smell water miles away, lowing investors are stampeding up Highway 90 eager to buy anything with daubed mud and a screen door. Their frenzy astonishes many locals.

“People call in and ask to get in on the ground floor,” observes Marfa real estate agent Linda Jenkins. “I tell them they’re six years too late.” Still, the inquiries keep coming. From New York. From Dublin. From Singapore. Even the French, who are making Marfa the new Paris, Texas. “I’ve sold four properties to French clients,” says Wright. “Guess they like the art.”

Some longtime residents benefit from an increase in property prices, but they are burdened by them, too. “If [the real estate boom] doesn’t stop, it will be so hard for the average taxpayer who has lived here forever to pay their taxes,” says Salgado. “I have to explain to them that because Mr. Smith from Houston bought a house like yours I have to charge the same rate. They ask me, ‘What have I done?’ and I have to tell them, ‘Nothing, it’s just the market.’”

The glamour carries another price tag invisible to the tourists tripping in from St. Germain or Williamsburg. The new eateries and bamboo-floored galleries have meant the end of more prosaic retailers. There wasn’t much to begin with, but what’s left is going fast. In February, Mary Arrieta lost the main street location for her store Ave Maria, which sold the town its religious icons, wedding crystal, and greeting cards. At the time, she paid $300 in rent. The new owner needed the Highland Street space for upscale lofts. Mike’s, the local cafe, had to move off Highland, too.

“For 29 years, I could afford to rent on [Highland]. Now I can’t,” says Arrieta. “It is sad the way the art crowd is working it out so that they don’t have to lift a finger to put us out. Mike’s Cafe was the only one left and he’s going to be out by July. Marfa Cable [TV] is looking for a place. They say to me, ‘Mary, where are we going to go?’ We cannot buy socks or pants here. The other people are rich. They jump in their planes, fly to the city and buy what they need.”

In the showdown between minimalism and big-box retail, there’s no truce in sight. “I guess the feather company feels Chinati is snotty and Chinati feels threatened,” says newly elected Marfa Mayor David Lanman, a transplanted Boston craftsman. Despite its protests, Chinati’s campaign seems doomed. As Judge Agan points out, Trento’s land is in unincorporated Presidio County. “He can build skyscrapers if he wants to,” Agan says. “As long as he has a permit, there’s nothing we can do.” Currently, Trento is waiting to hear whether his subdivision will be home to a new U.S. Border Patrol station. He’s in competition with another Marfa site and should know by fall. In the meantime, he continues to refine his blueprint for ranchettes and retail stores.

Lanman says the last thing he wants is to see Marfa become another Santa Fe. “When a town becomes a product and not a vision you lose something,” he says. He points to a “Third Way,” recognizing that Marfa must grow but in the process not ruin what is special about the town. “We’re trying to develop guidelines for Marfa to encourage or limit the size of buildings in particular areas,” he says. “People will have to apply for permits now — they won’t just be granted one over the counter [automatically].” (This won’t affect Trento’s development, as it’s outside city limits.) Lanman hopes that new ideas, what he calls “frontier vision,” will encourage townspeople to find solutions to how Marfa should grow. As an example that benefits everyone in town, he points to a new nonprofit health clinic, Marfa Health and Wellness, run by Kate Wanstrom, a local nurse practitioner, which opens this fall in an old Baptist church behind the Thunderbird Motel.

For now, though, the Marfa boom shows no signs of flagging. In fact, it is reverberating around the Texas big bend to Alpine, Fort Davis and Marathon. Each town is developing its own unique flavor. Austin politicos, such as columnist Molly Ivins, favor Marathon. (There’s a boutique there called AUSTINTaTIOUS.) Fort Davis draws affluent retirees, especially from the Houston area. Alpine, the region’s commercial hub and site of Sul Ross State University, attracts people from as far away as Germany.

For the next round of urban refugees, worried they’re too late to cash in on Marfa’s zeitgeist, fear not. The Texas Historical Commission, a state agency for historic preservation, says Alpine, the town next to Marfa, has the largest collection of historic adobe structures outside of El Paso. Drive to Alpine’s south side. There, on Gallego Avenue, across from Our Lady of Peace, the pretty Catholic Church fashioned from native stone, sits an old adobe. A hand-lettered sign is affixed in front: “For Sale — $25,000 — Price Firm.” Or said. It’s recently been removed.

Andrew Nelson is a writer in San Francisco.

Another innocent executed?

The state of Texas killed Carlos DeLuna for a crime he appears not to have committed, according to a new report

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Another innocent executed?Carlos De Luna

Death-penalty abolitionists long believed that the execution of an innocent person would turn the public against capital punishment. But that conviction has recently been shaken. First, there was Cameron Todd Willingham, who, after his 2004 execution in Texas, was found to have been likely innocent of killing his three small daughters. Nearly a decade later, Georgia executed Troy Davis despite widespread doubts about his guilt.

A new investigative report by the Columbia Human Rights Law Review reveals that Carlos DeLuna, who was executed by the state of Texas in 1989, was likely innocent as well. The full report, titled “Los Tocayos Carlos: An Anatomy of a Wrongful Execution,” can be viewed at CHRLR’s newly launched interactive website where readers can view all of the evidence cited in the article.

DeLuna, a poor Latino man described as having the intelligence of a child, was convicted of murdering Wanda Lopez, a 24-year-old single mother who was stabbed to death with a folding knife in 1983 while working behind the cash register at a gas station in Corpus Christi, Texas.

Lopez called 911 when her killer entered the store, leaving behind a recording of the encounter. She is heard answering a series of yes or no questions asked by the dispatcher about the creepy customer with the knife in his pocket and then whispering that he’s “standing right here at the counter” and “can’t talk,” followed by “Okay. This? Eighty-five,” in response to the customer. After more questions from the dispatcher, Lopez is heard pleading for her life and the line cuts off.

The only evidence against DeLuna was the shoddy eyewitness testimony of Kevin Baker, a car salesman who came face to face with Lopez’s killer as he fled the scene. Although DeLuna partly resembled the description given by Baker, upon further investigation it seems that DeLuna and the man Baker described were not the same person. For example, Baker told police that the culprit had a full mustache and so much facial hair that he looked like “he hadn’t shaved in, you know, ten days, a couple weeks.”

When police found DeLuna, he was lying half naked, shoeless and shirtless, underneath a pickup truck with little more than a day or two of stubble and no mustache. DeLuna testified that he was at the nightclub across the street from the crime scene trying to find a ride home when the sound of police sirens freaked him out because he was on parole at the time. So he ran, losing his shirt when he jumped a fence.

According to the CHRLR report, two decades after the murder, Baker admitted to a detective that he was only 70 percent certain that the half-naked man he saw in the back of the police car (DeLuna) and the man he saw stab Lopez were the same. Even family and friends had a hard time telling the difference between pictures of DeLuna and pictures of Hernandez.

From the time he was arrested to his subsequent execution in 1989, DeLuna maintained his innocence, repeating over and over again to his lawyers, family and the media, “I didn’t do it, but I know who did.” Nobody listened. At his trial DeLuna testified that “some other dude named Carlos” was the culprit, and still nobody listened.

DeLuna was referring to Carlos Hernandez, a Latino man whom the police were all too familiar with given his violent criminal history.

The night before his trial, DeLuna told his lawyer that an acquaintance had accompanied him to the nightclub the night of the murder. On the way there, DeLuna said the acquaintance stopped at the gas station to buy a pack of cigarettes for 85 cents, the same amount Lopez was heard saying on the 911 recording.

Like most people in the neighborhood, DeLuna was terrified of Hernandez, which is why it took him several months to identify him by name. Hector De Peña, DeLuna’s first state-appointed lawyer, recalls him saying, “I’m dead whether I’m out [of jail] or in if I identify him.”

Just weeks after Lopez was murdered, Eddie Garza, a Corpus Christi detective, heard from his vast network of informants that Carlos Hernandez was bragging in the streets that he got away with killing Wanda Lopez. At one point, he was suspected of fatally stabbing another woman.

Despite the evidence implicating Hernandez as the possible culprit, police and prosecutors never passed the information on to DeLuna’s lawyer. Instead, the prosecution argued in court that Carlos Hernandez was nothing more than a figment of DeLuna’s twisted imagination, an accusation that was upheld during his appeal.

DeLuna’s identification of Hernandez wasn’t taken seriously until 16 years after his execution. In an in-depth investigation, the Chicago Tribune uncovered evidence showing Carlos Hernandez to be the likely killer. “Ending years of silence, Hernandez’s relatives and friends recounted how the violent felon repeatedly bragged that DeLuna went to death row for a murder Hernandez committed,” reported the Tribune. They didn’t feel safe sharing their knowledge of Hernandez’s crime until after he died of liver cirrhosis in 1999 while serving a prison sentence for assault with a knife.

Given the mishandling of the investigation, prosecutorial misconduct and an inadequate defense, the jury unanimously found DeLuna guilty and he was sentenced to death.

As DeLuna languished on death row, Hernandez managed to get arrested nine times, once for killing a woman and another time for stabbing a Hispanic woman nearly to death. Again, the police and district attorney failed to inform DeLuna’s lawyers and the judges overseeing his appeals. Meanwhile, the prosecution continued to argue that Carlos Hernandez did not exist outside of DeLuna’s mind.

Rev. Carroll Pickett, the death house chaplain who presided over nearly 95 executions, was struck by DeLuna’s claim of innocence until his very last breath. Pickett said that inmates would eventually confess before meeting their maker, which is why Pickett believes that DeLuna was indeed innocent. The chaplain became an advocate for the abolition of the death penalty as a result.

By chronicling the mistakes made by authorities at every stage of DeLuna’s case, the CHRLR report highlights the ease with which the criminal justice system can lead to wrongful conviction and, in capital cases, a deadly and irreversible outcome.

Cameron Todd Willingham, Troy Davis and Carlos DeLuna make up just a handful of people that have been executed despite serious doubts about their guilt, which raises the question: How many more people will be strapped to a gurney and injected with poison before the death penalty is abandoned?

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Texas’ abortion enforcer

Fifth Circuit Court Judge Jerry Smith makes sure that the state's antiabortion legislation gets upheld

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Texas' abortion enforcerJerry Smith

Here is what the state of Texas considers “irreparable harm”: Continuing to provide Planned Parenthood with federal funds for the Texas Women’s Health program, which it has done for several years. Here is what it does not find harmful: immediately denying healthcare access to tens of thousands of women who have been going to Planned Parenthood affiliates for basic health services that aren’t abortions.

On Monday, a U.S. District Court judge didn’t buy the state’s legislation defunding Planned Parenthood, putting a temporary stay on the enforcement of the law. But within a day, there was another judge who found the argument persuasive: Fifth Circuit Judge Jerry Smith, last seen obnoxiously demanding that a female Justice Department lawyer ”submit a three-page, single-spaced letter by noon Thursday addressing whether the Executive Branch believes courts have such power.” (Kevin Drum memorably compared it to “a middle school teacher handing out punishment to a student because of something her father said at a city council meeting the night before,” and you wouldn’t have to look hard to find the sexist condescension.)

The District Court judge had written 24 pages on the constitutional merits, focusing on Planned Parenthood’s First Amendment rights of association. Smith issued two sentences two hours after the state’s petition, undoing that, and apparently buying the state of Texas’ argument that Planned Parenthood’s alleged “abortion promoting” mission justified discriminating against a qualified provider of healthcare.  (The clinics receiving WHP funding don’t even provide abortions, but other Planned Parenthood clinics do.)

In an election year, these posturings take on new meaning; by today, Planned Parenthood was proclaiming in a news release, “What would Mitt Romney’s America look like for women’s health care?  We need look no further than Texas,” and highlighting the policy similarities of Romney and Perry on women’s health. Romney, of course, has pledged to defund Planned Parenthood, which during the primaries became a consensus Republican issue. The last federal attempt to do so, last year’s Pence Amendment, nearly shut down the entire government, though Obama held the line — as he pointed out in a recent campaign video supporting the organization.

The presidential policies matter, but as we can see from Texas, the judiciary, prompted by state legislatures that are coming off a wave of abortion restrictions, is currently wielding the most power when it comes to women’s everyday lives, and the 5th Circuit in particular has been unrepentantly hostile to reproductive rights. When they failed with Pence, right-to-lifers turned to the states, primed by the 2010 election of even more anti-choice legislators and governors. In Texas, the conservative 5th Circuit has become a brick wall, previously allowing enforcement of the most extreme ultrasound law in the country, one that requires a woman to listen to the results.

Smith is a Reagan appointee, as is his fellow 5th Circuit conservative gadfly Edith Jones, who wrote the opinion in the ultrasound case, though if they’re feeling particularly emboldened lately, you can’t really blame them. After all, the Obama administration has shown little interest in prioritizing the judiciary, even after Bush’s ambitious effort to fill federal appellate courts with movement conservatives. A January Brookings Institution report showed that Obama has nominated fewer federal trial judges than his predecessors, even as a wave of judges retires. (Unprecedented Senate intransigence is a major factor in confirmations, but doesn’t explain the nominations.)  And Dahlia Lithwick has argued that “Obama, like Bill Clinton before him, has selected lower court judges more notable for their racial and gender diversity than their hard-left judicial orientation.”

All of this is to say that as long as states like Texas keep passing laws that punish women and stretch the boundaries of constitutional interpretation, to put it mildly, the buck is likelier than ever to stop at a judge like Jerry Smith.

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Irin Carmon

Irin Carmon is a staff writer for Salon. Follow her on Twitter at @irincarmon or email her at icarmon@salon.com.

Texas’ outsourced border

Rick Perry's private contractors are militarizing border security and misleading taxpayers

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Texas' outsourced border In this Sept. 27, 2010 photo, contractors reinforce a section of damaged border fence as seen from Sonora, Mexico (Credit: AP/Matt York)
This article originally appeared on AlterNet.

Roy “Mac” Sikes wasn’t wearing a white 10-gallon like the other top Texas Rangers attending the 2010 Texas Border Sheriffs Coalition meeting in El Paso. Mac, as the Texas Rangers and sheriffs call him, was going hatless. But that may have been because it’s not entirely clear which hat Mac should have been wearing – ranger, cop or consultant?

AlterNetSince 2006 many of the key figures in state-led border security operations and information campaigns have identified themselves as DPS employees or part of the Texas Rangers to the public, policy community and the media, disguising their true identities.

The business card he handed me during the sheriffs meeting identified Sikes as the director of the Border Security Operations Center (BSOC) – which is a type of fusion center for border-security operations in Texas. It’s a project of the Texas Rangers Division, which in turn is a branch of the Texas Department of Public Safety (DPS).

However, Mac Sikes is neither a Texas Ranger nor a DPS employee. Like most of the other key figures behind the Lone Star State’s border security campaign, Sikes is a contract employee.

A “senior operational analyst” at Abrams Learning & Information Systems (ALIS), Sikes became director of BSOC as part of the firm’s $3-5 million annual contracts with DPS since 2006. The recent DPS decision — in response to a public records request — to release the ALIS contract revealed the true identity of Sikes.

The Border Security Operations Center is the nexus of the Texas’ own border security initiatives, collectively known as Operation Border Star. ALIS, a homeland-security consulting firm with offices in Arlington, Virginia, was founded in 2004 by Ret. Army Gen. John Abrams to cash in on the billions of dollars in new government contracting funds that started to flow after the creation of the Department of Homeland Security in 2003.

Since 2006 ALIS functioned as the hidden force behind virtually all non-federal border-security operations in Texas. Whether it’s strategy formulation, border crime-mapping, operations management or public relations, ALIS and its team of consultants have been closely involved in creating what Governor Rick Perry calls the “Texas model of border security.”

ALIS, which has received $22.7 million from DPS and the Governor’s Office for border-security operations in FY 2007-FY 2011, describes its mission in Texas as follows:

ALIS was commissioned to improve border security strategy and operations along the U.S. – Mexico border through the development of an epicenter for security operations. The objective of the operational center is to plan, coordinate, implement, and evaluate interagency border security operations to counter the threat of organized crime, terrorism, and the flow of contraband and human trafficking to foster a secure border region.

Gov. Rick Perry has boasted to both President Obama and DHS Secretary Janet Napolitano that Texas has created a new model for border security. In a letter to the president, Perry hailed his state’s “proven and successful multi-agency border security strategy,” while the governor invited Napolitano to visit the Texas border to see the “Texas model of border security.” DPS Director Steven McCraw, who was appointed by Perry and also served as the governor’s homeland security director from 2003 to early 2012, says that Texas is creating its own “paradigm” of border security.

Perry and McCraw support an aggressive, militarized border security strategy. They claim that Operation Border Star – their name for the Texas model or paradigm – is succeeding in securing the Texas border whereas the Obama administration’s border-security operations are, they charge, a manifest failure.

That’s a claim that was highlighted in a September 2011 report on border security commissioned by the Texas Department of Agriculture. The report, “Texas Border Security: A Strategic Military Assessment,” was written by Gen. Robert Scales (ret.) and Gen. Barry McCaffrey, who have their own Washington Beltway consulting firms, Colgen and BR McCaffrey Associates.

In their highly alarmist and unabashedly militaristic report, the retired generals describe the border as a “war zone” and contend that purported success of Operation Border Star and the Texas Rangers “should serve as a template for the future” of border security operations nationwide. Such a model, they argued, should be “based on proven joint military operations” and the type of “layered ‘defense-in-depth’” strategies employed by the Rangers and Operation Border Star.

But the generals failed to offer any evidence, other than anecdotal testimonies collected by Texas Commission of Agriculture Todd Staples to document the achievements of the Texas model. That’s not surprising, given that after nearly seven years Perry and McCraw have also failed to offer any substantial documentation to back their claims about the success of the Texas model of border security.

The “made-in-Texas” boasts about the state’s model of border security and the “can-do” braggadocio about “Texans protecting Texans” don’t stand up to close scrutiny.

Border Star operations and programs are funded by a combination of DHS grants, Justice Department criminal-justice assistance and economic-stimulus funding, and Texas general revenues.

The first funding for Operation Border Star came from the Obama administration’s border-security programs to aid local and state law enforcement. Although the state legislature, starting in 2007, started appropriating about $100 million annually for BSOC and other Border Star operations, federal funding has been the main stay of the Texas model. It’s also an operation that has been almost wholly outsourced to Washington Beltway consultants.

Outsourcing Texas Border Security

The Public Safety Commission has repeatedly approved DPS contracts with ALIS without any public discussion and without any evaluation. The commission, whose director is a major donor to Perry’s election campaigns, have allowed Perry and McCraw to run Operation Border Star without any oversight or review. ALIS contracts – including emergency contracts – have been routinely approved without any evaluation of its cost and impact.

With no discussion, the Texas Public Safety Commission at its Aug. 12, 2010 meeting in Austin approved an “emergency contract for providing strategies and plans to support the management of the Texas Border Security Operations Center (Abrams Learning & Information Systems).”

The commission also extended another DPS outsourcing contract held by APPRISS for another information and technology-driven project called the Texas Data Exchange (TDEx). DPS has paid APPRISS $30.9 million in FYs 2008-2012 for information systems of dubious worth.

Meanwhile, DPS in 2010-2011 repeatedly rejected requests by the Center for International Policy for the various strategy statements, operations plans, and performance reports that ALIS was contracted to produce, arguing that the information was “law enforcement sensitive.” DPS has contended that the release of the classified documents to a nonprofit education organization would place law enforcement officials at risk.

However, these same documents that were denied CIP were apparently accessed by the for-profit security consultants contracted by Texas Ag Commissioner Staples.

Texas Attorney General Greg Abbott has upheld the DPS rejection of the public records requests for documents that would shed light on the structure, operations, and achievements of Operation Border Star and the role of ALIS. The only documents that DPS did release to the Center for International Policy were the ALIS contracts themselves.

The DPS contract with ALIS, which was signed Aug. 31, 2010, delegated not only the inner-workings of Operation Border Star to the Beltway contractor but also gave the contractor the responsibility for formulating border-security and homeland-security strategy statements, running public-relations operations, and directing law-enforcement operations.

Questions about the value of Operation Border Star and about its political character have been repeatedly raised over the past few years by several Texas media outlets and by the Texas American Civil Liberties Union. Texas border communities that have been adversely affected by the redirection of state and local law-enforcement agencies into border-security campaigns and away from public-safety missions have also criticized the cost and focus of the Perry administration’s border-security programs.

Gross Mismanagement in Texas of Federal Homeland and Border Security Funds

The Texas State Auditor recently raised new questions and concerns about the unprofessional DPS management of federal funds and about the agency’s dubious contracting practices under the stewardship of Steven McCraw.

The independent report, which was commissioned by the state auditor and released in February 2012, found, among other violations, cases of stunning material weaknesses in DPS accounting, a pattern of noncompliance in following federal procedures, and an array of alarming deficiencies in reporting and monitoring federal funds.

The report highlights a pervasive and systemic mismanagement of federal funds by DPS, including eight duplicate payments to contractors, sloppy accounting, failure to open contracts to competitive bidding (while in at least one other case bypassing low bidder for a preferred one), routine reliance on emergency contracts to avoid contract renewal and bidding processes, and a persistent failure to communicate accounting and reporting guidelines to subrecipients of more than federal funds managed by DPS. (In 2010 DPS administered $397 million in federal revenues for subgrants and contracts.)

The audit reviewed a representative selection of cases among the $265.9 million in federal grants and subgrants to DPS — in the areas of homeland security, border security, emergency management and law enforcement interoperability.

Among the findings of negligence and incompetence were these startling instances:

  •  A draw-down of $755,509 in federal funds to issue a duplicate payment to one subgrantee.
  •  Five of the six procurements (83 percent) examined by the auditor in the cluster of federal grants for homeland and border security were not bid competitively as required.
  • DPS categorized four of the five procurements examined by the auditor as “emergency procurements,” and in three of those four DPS was unable to document why they were processed as “emergency” contracts.
  • DPS has no system to track, administer, monitor federal subgrants – as federal guidelines require, leading to routine occurrences of duplicate payments, dipping into one federal fund to pay for unrelated programs, and failure to submit required reports and audits.
  • Complete failure to track interest rates on unused federal funds and to remit those funds, as required by federal grant guidelines.
  • Access to law-enforcement databases by contract programmers who lacked proper authorization or clearance.

Texas officials, including the governor, DPS chief, attorney general and agriculture commissioner, frequently charge that the federal government has failed in its responsibility to control the Texas-Mexico border.

It is rarely acknowledged, however, by these same critics how dependent Texas law enforcement and criminal justice agencies – including state’s homeland security department, DPS, governor’s criminal justice division, border sheriffs, agriculture department and state prosecutors and courts – are on the continuing flow of federal funds into Texas.

In fiscal year 2011 Texas received $57.5 billion in federal funding. That same year DPS relied on federal funding for approximately half its annual budget — down from the 60% funding in 2010 when federal stimulus funds were still flowing. The audit did not include the names of the private and local government recipients of DPS contracting and subgranting funds that were reviewed in the audit.

However, DHS and DOJ funding for homeland security, border security, and law enforcement interoperability have all been used to prop up the Texas model of border security – and to pay for the outsourcing of the building of the model and its implementation. It’s likely that the DPS contracts with ALIS, being one of the top-ranking DPS contractors, came under the scrutiny of the auditor.

The audit, which occurred during 2010, underscored problems with the type of DPS emergency contracting that benefited ALIS. The audit and its alarming findings have contributed to mounting cynicism and criticism about the Texas border security model and its outsourcing.

The audit raises fresh questions about McCraw’s ability to manage the large state agency. The shocking findings of DPS management of DHS and DOJ funding to support Texas homeland and border security programs also underscores rising skepticism about the “go-it-alone” and “can-do” boasting of the Texas border hawks critical of the Obama administration.

Outsourcing Strategy and Propaganda

It would be hard to exaggerate the degree to which Governor Perry and DPS Chief McCraw have outsourced state border-security, homeland-security and public-safety programs to Washington Beltway contractors.

ALIS, according to the August 2010 “emergency contract,” was, among other things, hired to do everything from formulating strategy to running operations to managing public relations – not only for Operation Border Start but also for the Texas Rangers and DPS itself.

The “emergency” contract for $1.5 million ALIS services, which was signed by McCraw and ALIS Chief Operating Officer on August 31, 2010, underscored the central role of ALIS in shaping and directing border security operations in Texas.

Echoing the expansive scope of the language used in earlier contracts, DPS once again hired ALIS to:

Develop and refine border-wide security strategies and plans for seamless integration of interagency law enforcement border security operations in the State of Texas.

With a staff of at least 17 analysts and information specialists — many with military backgrounds –ALIS was contracted to provide the vision and the structural foundation for Operation Border Star. Initially, Border Star had been little more a commitment by the Perry administration to support the newly formed Texas Border Sheriffs Coalition and its Operation Linebacker, using federal criminal-justice funds controlled by the governor’s office, along with an occasional show of force by DPS police in Texas border counties.

Over the years, with each successive contract, the extent of responsibility outsourced to ALIS expanded dramatically. One of the first contracts gave ALIS the task of developing a computerized crime-mapping system for the greater Texas border region, which is known as TexMap. By late 2010, however, DPS was paying ALIS to, among other things:

  • “Define and write a Border Security Strategic Vision.”
  • “Manage and operate the Border Security Operations Center (BSOC).”
  • “Develop border-wide strategies and plans to support interagency effectiveness.”
  • “Refine and update Operation Border Star 2012-2013.”
  • “Develop plans for border-related Mass Migration contingencies.”
  • Develop plans for “Texas Ranger operations,” and develop standard operating procedures for “Ranger Renaissance Teams” (including the new gunboat operations).
  • “Facilitate creation of the Border Operations Planning Group.”
  • “Develop a Border Security media/public information outreach strategy.”
  • “Provide sufficient manpower to provide leadership, subject-matter expertise, and quality assurance/control in areas of border security planning and operations.”
  •  “Support and sustain the six Joint Operations Intelligence Centers (JOICs),” which are situated along the Texas border and Gulf Coast.
  •  “Conceptualize a Sensor Master Plan for the border region,” as part of the “web-based” electronic surveillance systems created by the governor’s officer and   DPS.
  •  “Develop and refine DPS Agency Strategic Plans,” including the DPS Strategic Plan 2011-2015.
  •  “Facilitate development of a DPS policy document outlining roles, responsibilities, and authorities of Regional Commanders, Ranger Captains, DPS Divisions, and JOICs with regard to countering crime and terrorism in the border region.”

The Aug. 31, 2010 emergency contract with ALIS built on earlier contracts, which steadily reinforced the centrality of the homeland security contractor not only to execute assigned tasks but also to formulate strategy and direct operations. An earlier contract had empowered ALIS to formulate the drafts of the Texas Border Security Campaign Plan, the governor’s 2010-2015 Homeland Security Strategy Plan, and the DPS Agency Strategy Plan 2010. That’s worth repeating. This little-known, upstart consulting agency from the Washington Beltway had been hired by the state’s public safety and homeland security director to: write the campaign plan for the governor’s border security campaign, conceptualize and write the state’s strategy statement for homeland security, and produce the strategy plan for DPS itself.

One of the most striking and disturbing components of the August 2010 contract was the new public relations and outreach role given ALIS contractors. According to the contract, ALIS would assume a new role that would combine public relations, communications and policy-advocacy functions.

Instead of merely being a hired gun contracted for predetermined border-security operations in Texas, ALIS contractors were expected to develop strategies, gather information to support these strategies, and then work to shape public opinion and public policy about border security threats and responses. The only border experience that ALIS brought to the table when it was hired was that its founder General Abrams had in the late 1980s commanded a regiment that was responsible for protecting the German “inner-border” prior to German reunification.

Specific tasks outsourced to ALIS included producing “reports, briefings, studies and recommendations” for “Texas leadership.” ALIS was also tasked to “orient senior government leaders on border security issues,” with possible options including “public affairs strategy and plans, fact sheets, talking points, speeches, presentations and testimony.”

The stipulated goal of the “Border Security media/public information outreach strategy” was, according to the DPS contract, to “build support for border security” among the public, media and policy community in Texas. As noted in the contract, ALIS would at times also be expected to leverage its BSOC fusion center staff “to surge for 24/7 information operations.”

Rather than gathering intelligence and analyzing information, DPS tasked ALIS to provide DPS and the Texas Rangers with “the necessary information to assist the ongoing operations.” Its BSOC staff were expected to “discipline the information operations process by serving the state information operations ‘net control’ station for border security.”

The BSOC and the JOICs would be tasked, according to the contract, to “provide needed information products as required by Texas Rangers” and to produce “effective information products.”

In review, in the interests of border security and homeland security, ALIS was contracted by DPS – with the approval of the Public Safety Commission and the governor – to manufacture “information products.” What is more, DPS wanted ALIS to ensure that the information was “effective” as well as “necessary” for ongoing operations. There has been absolutely no review by policy makers or by the public of DPS outsourcing of border-security strategy and operations.

It’s likely, though, that if there were ever such transparency and accountability, at least a few policymakers and concerned citizens would caution that structuring information as an instrument may replicate the information- and psychological-ops of the military and intelligence agencies but may not be an appropriate way to consider information gathering and dissemination on the home front. The term propaganda might arise in any public review this type of outsourcing.

Similarly, the concept that a private contractor should participate in information surges that would parallel operational surges by law enforcement officers and state troops might also have sparked discussion about the proper use of state and federal funds.

As is, it seems that the directors of Operation Border Star – Governor Perry and DPS Director McCraw – view information and intelligence as fungible commodities that can be created, manipulated and shaped to serve the greater good of the nation and Texas border security.

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Tom Barry is the author of Border Wars (Boston Review Books). He blogs at Border Lines.

Rick Perry does not support Confederate license plates

The Texas governor, disappointing the Sons of the Confederacy, says he doesn't want to "reopen old wounds"

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Rick Perry does not support Confederate license platesRepublican Presidential candidate Gov. Rick Perry (Credit: Richard Shiro/AP/iStockphoto)

Texas governor and teenage heartthrob Rick Perry has a history of politically expedient affection for the Confederate States of America, but he has apparently now decided that public displays of the Confederate battle flag should probably not be endorsed and promoted by the government of the Civil War-winning United States.

According to the AP, Perry said he doesn’t support a campaign (mentioned by Joan Walsh earlier this week) by the Sons of Confederate Veterans to introduce specialty license plates featuring an unambiguously hateful symbol of white supremacy.

The Republican presidential hopeful was in Florida for a fundraiser and told Bay News 9’s “Political Connections” and the St. Petersburg Times that, “we don’t need to be opening old wounds.”

The actual decision on the plates will be made by a Texas Department of Motor Vehicles board, but the board — like most boards in the Texas government — is made up entirely of Perry appointees.

This is something of a “flip-flop” for Perry, who in the past opposed efforts to remove Confederate symbols and monuments from public property. Perry likely wants to avoid another round of headlines connecting him to the South’s ignominious history of white supremacy and racial tension, following the “rock with the word ‘Niggerhead’ painted on it” story. This is why white Southern Republican politicians use vague language like “reopening old wounds” — it’s best to just let that shit stay buried, where it can’t embarrass anyone.

But the fact that it’d be embarrassing for Perry to endorse the Confederacy is something of a positive sign. For years, Republicans seeking the presidency have been expected to embrace Confederate symbolism to prove their conservative bona fides, and the political press largely excused these endorsements as simply part of the path to the nomination. John McCain got some grief for endorsing the South Carolina flag, but that’s because he waffled on the issue, not because embracing the battle flag of anti-American racist separatists is morally horrific.

The fact that Perry would rather quietly make the issue go away than quietly signal his approval of the neo-Confederate movement means progress is being made in the campaign to educate everyone as to the actual meaning of certain symbols of “our heritage.”

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Alex Pareene

Alex Pareene writes about politics for Salon and is the author of "The Rude Guide to Mitt." Email him at apareene@salon.com and follow him on Twitter @pareene

Teenagers for Rick Perry!

The school-aged children of Rick Perry donors and appointees donate thousands to his presidential campaign

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Teenagers for Rick Perry!Rick Perry (Credit: AP/Richard Shiro)

The Huffington Post, obviously trying to smear American hero Rick Perry, tries to insinuate that there’s something untoward about the fact that his campaign keeps recording huge donations from the live-at-home children of his rich donors.

There are still these federal laws limiting how much individuals can donate to political campaigns (which is why God and the Supreme Court invented 501(c)(4)s), and while minors aren’t forbidden from sending their hard-earned allowances to candidates who promise to fill school libraries with R-rated movies, the minors themselves are supposed to be the ones donating:

Under current law, three conditions that must be met for a minor to donate to a political campaign: that the donation was made knowingly and voluntarily; that the funds donated must belong to the minor in question; and that the parents may not reimburse the child for the donation. A Perry spokesman declined to say whether there is an age that the campaign considers too young to knowingly and voluntarily donate.

Those rules are, of course, widely ignored by everyone, because they’re effectively impossible to enforce, and so kids become just another way rich people can donate more than is legal to their favorite candidates.

Not that that’s what’s going on with these donations to Perry! I am sure the middle school-aged daughter of Texas Railroad Commission Commissioner Barry Smitherman genuinely supports Governor Perry (she probably calls him “Uncle Rick” and everything) and the $2,500 she sent his campaign is surely money she received from the Tooth Fairy and then prudently invested. Same for her high school junior brother. And for the children of Perry appointee Dan Friedkin and the children of oil executive and Perry appointee Steve Layton.

The thing these liberal smear artists simply don’t get is that children love Rick Perry. He is basically the Texas Santa Claus. Except the kids send Rick Perry presents, instead of the other way around.

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Alex Pareene

Alex Pareene writes about politics for Salon and is the author of "The Rude Guide to Mitt." Email him at apareene@salon.com and follow him on Twitter @pareene

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