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I love teaching and sharing knowledge. The Internet is a free passage to an amazing amount of knowledge provided by some of the greatest minds of the day. MIT, Oxford and other universities are now sharing lecture notes with the public and allowing us to dip into the overflowing fonts of wisdom that abound. Yale is but one university that has put actual lectures on the web.
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Wednesday, August 16, 2006
Feds now control Mount Soledad cross site
Bush signs bill; biggest foe expects court ruling soon
By Dana Wilkie
COPLEY NEWS SERVICE
August 15, 2006
WASHINGTON – With President Bush's signature on a bill that transfers the Mount Soledad cross to federal control, the 17-year parochial battle over the memorial could become a national cause for supporters and foes of religious symbols on public property.
In an Oval Office ceremony yesterday, the president signed a bill by three San Diego-area congressmen that immediately transfers the war memorial to the U.S. Defense Department in an effort to avoid a court-ordered removal of the cross, versions of which have towered over La Jolla on and off for nearly a century.
Bush was joined by supporters of the cross from San Diego and by the bill's chief architect, Rep. Duncan Hunter, R-Alpine.
“Today is a great day for America's veterans and the San Diego community,” said Hunter, whose bill passed the House July 19 with a 349-74 vote, and passed the Senate unanimously two weeks later.
“The president's endorsement of this legislation validates years of tireless work and sends a clear message that America appreciates and respects its military men and women,” Hunter said.
Even before Bush had put his pen to the legislation, a foe of the cross had gone to court to fight the congressional action. In federal District Court in San Diego on Thursday, the atheist who first sued in 1989 to remove the cross asked the court to void the congressional transfer from the city of San Diego.
“Am I disappointed that Bush and Congress are acting in such a foolish fashion when there are religious wars going on all over the world?” asked attorney James McElroy. “Yes I am.”
McElroy represents atheist Philip Paulson, who believes that a cross on public land amounts to an unconstitutional preference of the Christian religion over others.
McElroy said he expects a ruling from the court in September. “So this is not going to be a long, dragged-out process.”
The final approval of Congress' plan marks a new era in the long-running fight, which has been the subject of several lawsuits, local ballot measures, and U.S. Supreme Court intervention last month.
Now the future of the cross will likely rest on interpretations of the U.S. Constitution instead of the California Constitution.
Bush's action also places the cross on a long list of religious symbols and activities that have caused increasing disputes over the federal Constitution's establishment clause, constitutional experts say.
“Certainly within the last 20 years the friction has been rather intense,” said Patrick Garry, a University of South Dakota law professor and author of “Wrestling with God: The Courts' Tortuous Treatment of Religion.”
“The symbol itself oftentimes is quite irrelevant, but it becomes this sort of point of battle between larger forces.”
The first Soledad cross was built in 1913 and was featured in Easter sunrise services. The current cross, dedicated as a veterans' memorial, has stood there since 1954, replacing another cross that had fallen in a windstorm.
Those fighting to remove the cross say it's a Christian symbol and should not sit on public land atop a prominent hill.
They note that even historical maps refer to the monument as the “Mount Soledad Easter Cross.” The opponents' most recent victory came when a federal judge ordered the 29-foot cross removed by Aug. 1. But the order was put on hold by the U.S. Supreme Court.
“The president and Congress have no business intervening in this way in an ongoing legal proceeding,” said the Rev. Barry Lynn, executive director of Americans United for Separation of Church and State. “Today's action is an unwarranted, heavy-handed maneuver that undercuts the separation of church and state and the integrity of the judicial system.”
While Bush made no public statements after yesterday's signing, the White House has said that “judicial activism should not stand in the way of the people” and that “the people of San Diego have clearly expressed their desire to keep” the cross where it stands.
Last fall, 76 percent of San Diego voters approved a measure that would have donated the cross to the federal government, but which a judge said violated the state constitution.
In addition to Hunter, the president was joined in the brief ceremony by GOP Reps. Brian Bilbray of Carlsbad and Darrell Issa of Vista; Charles LiMandri, an attorney advising a group of cross supporters; Phil Thalheimer, chairman of San Diegans for the Mount Soledad National War Memorial; and William Kellogg, president of the Mount Soledad Memorial Association.
Hunter's legislation aims to preserve the cross by vesting title to the memorial in the federal government and having it administered by the Defense Department. The Mount Soledad Memorial Association would maintain it.
Mayor Jerry Sanders appeared at an afternoon news conference at the memorial to thank the president.
“Today's action allows our federal government to take the lead in preserving the integrity of the memorial against all those that would alter this key part of San Diego's history,” he said as he stood with City Councilman Jim Madaffer, the cross towering in the background.
Sanders said the next step for the city would be to work with the federal government, which will have one year to negotiate a fair market price for the property.
Sanders said he had no idea what the price would be and he laughed when someone asked him if he would take just one dollar.
Charlie Berwanger, attorney for the Mount Soledad Memorial Association, said the memorial land was transferred to the Defense Department immediately upon Bush's signature. But he said federal attorneys must still file a notice of condemnation proceedings in federal court in San Diego.
Constitutional experts say that secular organizations and religious conservatives have increasingly petitioned the courts to ascertain what the Founding Fathers intended when they wrote that “Congress shall make no law respecting an establishment of religion.”
The Supreme Court's 1947 ruling in Everson v. Board of Education established “for the first time this idea of a wall of separation between church and state, and the courts in the '50s and '60s and '70s began enforcing this,” said Garry, the South Dakota law professor.
While secularists tended to have the upper hand in the courts through this period, Garry said, religious conservatives sparked a backlash in the mid-1980s.
“Our litigation system is providing an arena for them to battle it out,” Garry said.
Roger Pilon, vice president for legal affairs with the libertarian think tank the Cato Institute, said the increasing number of court fights over religious symbols or activities in public places tends to reflect “a period of cultural warfare.”
Last year, a pair of 5-4 rulings by the Supreme Court in separate cases involving the Ten Commandments did not establish clear guidelines. The court found that a display inside a Kentucky courthouse was unconstitutional, but that a 6-foot granite monument outside the Texas Capitol was all right.
In the past six years alone, other legal clashes have involved other crosses on public land; prayers at football games in a Santa Fe, Texas, school district; religious gatherings at a New York school after hours; whether “In God We Trust” should be stamped on U.S. currency, and “under God” be included in the Pledge of Allegiance.
Staff writer Debbi Farr Baker contributed to this report.
Monday, August 14, 2006
Wall Street Journal Front page
A Loophole Emerges
In Yemeni Campaign
A Judge Sympathetic to U.S.
Frees 19 of Its Enemies;
Islamic Law Allows Jihad
By GREG JAFFE
August 14, 2006; Page A1
SANA, Yemen -- The U.S. has spent millions of dollars in Yemen to help the government crack down on Islamic extremists who want to wage violent jihad against nonbelievers.
There is just one problem with the strategy: It is not clear that jihad is illegal in Yemen.
Last month a Yemeni judge, sitting on the state's special terrorism court, ruled that 19 defendants who had traveled to Iraq to kill American soldiers and fight alongside al Qaeda there had done nothing wrong. The defendants -- 14 Yemenis and five Saudis who had been caught with guns and fake Iraqi passports -- made no attempt to deny their connection to al Qaeda in Iraq. They openly praised Osama bin Laden, and bore wounds from fighting American and Iraqi troops.
Yet Judge Mohammed al-Baadani, a 40-year-old jurist with family in the U.S. and a history of handing out prison sentences to al Qaeda fighters plotting attacks in Yemen, acquitted the defendants.
His argument: "Islamic Sharia law permits jihad against occupiers" of Muslim lands.
The judge's ruling prompted an immediate appeal from Yemeni prosecutors, and it outraged senior officials at the U.S. Embassy here. "I personally raised the issue with the President of the Republic and the Ministry of the Interior," says Nabeel Khoury, the deputy chief of mission at the U.S. Embassy.
Yet Judge al-Baadani says that he couldn't have ruled any differently. Yemeni law -- a mixture of British colonial law, local ordinances and Islamic Sharia law -- is murky on the subject of when it is permissible for Yemenis to take up arms with fellow Muslims. The country also has a long history of allowing its young men to go off to fight alongside fellow Muslims battling foreign forces in places like Afghanistan, Bosnia and Chechnya. For many Yemenis, jihad against foreign occupiers is an Islamic duty.
Even prosecutors didn't charge the 19 men with any crimes related to their Iraq activities. Instead, they were charged with plotting attacks against a Western hotel in Aden and other more nebulous "Western targets."
"The prosecution showed no evidence of this plot," Judge al-Baadani says.
The controversial ruling highlights the challenge the U.S. faces in the Arab world when it comes to stanching the flow of violent jihadists into Iraq, Afghanistan and now Lebanon. An internal study, prepared by the U.S. Central Command, which oversees U.S. troops in the Middle East, estimates that about 130 foreign fighters cross into Iraq each month. Though small in number, these fighters account for some of the most horrific and divisive attacks, military officials say.
In an interview, Judge al-Baadani says he has no doubt that the 19 men he acquitted were dangerous and misguided. During the trial he scolded them for sneaking off to Iraq without the approval of the president or their parents. But, he says, no laws prohibit Yemenis from fighting Western forces in Iraq. If such laws were enacted or enforced by the courts, they would only drive more Muslims to al Qaeda, he argues. By contrast, he says that under Yemeni and Sharia law it is against the law to attack U.S. or Western targets outside of occupied lands. That reading would make last week's foiled attacks on commercial airliners flying out of London illegal.
Like most Yemeni men, the judge was dressed in a long white robe and carried a long curved dagger, called a Jambiya, which dangled from an ornately decorated belt. Outside his window a dozen Yemeni soldiers armed with AK-47 rifles and Russian-made machine guns stood guard on the roof of an adjacent building, protecting him from terrorist attack.
In addition to drawing an angry response from the U.S. Embassy, the ruling also provoked stiff criticism from the judge's family members in the U.S., Judge al-Baadani says. His nephew, who runs a small business that supplies snack foods to delis in San Francisco, phoned him as soon as he learned of the verdict.
"I thought that since the government was friendly now to America and against terrorism that they would at least get some jail time," Adnan al-Ameri, the judge's 33-year-old nephew, says he told his uncle. Although he opposes the Iraq war, Mr. al-Ameri says calls for violent jihad there are damaging and perverting Islam. Other phone calls followed from friends and relatives in Michigan and the U.K.
Judge al-Baadani says he told his nephew that his decision disappointed radicals who wanted to use the case to make martyrs of the accused and to foment hatred against the U.S. And he promised him that it would benefit the U.S. in the long run. "Throwing those men in jail would get rid of 19 bad people, but it would make enemies out of 19 million Yemenis. Which one would America choose?" he asks.
Since the Sept. 11 terrorist attacks, Yemen has by most measures been one of the U.S.'s stronger Arab allies in the war on terror -- though its record has been marred somewhat of late by a series of embarrassing jail breaks by convicted al Qaeda fighters. In 2002, the Yemeni government signed off on an attack in which a missile fired by an unmanned CIA plane incinerated a suspected al Qaeda militant in northern Yemen. To bolster Yemen's security forces, the U.S. is spending about $8 million a year to help Yemen build a coast guard and an elite counterterrorism force.
Even Judge al-Baadani's court, established to handle high-profile terrorism cases, is a sign that Yemen wants to stamp out al Qaeda extremists within its borders. Unlike other criminal courts in Yemen, defendants aren't allowed to see sensitive evidence against them that might compromise Western or Yemeni intelligence sources. Judge al-Baadani boasts that in April he handed out five- to seven-year sentences to a cell of 14 men caught with explosives and accused of plotting attacks on U.S. targets in Yemen.
The court has also jailed several conspirators in the 2000 attack on the U.S. destroyer Cole, which killed 17 U.S. sailors, and the bombing of a French oil tanker. More recently two teenagers accused of plotting to assassinate the former U.S. ambassador to the country were sentenced to prison terms.
All those attacks were aimed at Western targets in Yemen, a country that is not currently being occupied by non-Islamic forces and where the Islamic principle of jihad doesn't apply, Judge al-Baadani says.
In the cases of Yemenis fighting in Iraq and Afghanistan, the judge ruled that the centuries-old principle of jihad is the law. Jihad, which can refer to a Muslim's personal struggle against evil, is more typically used to describe the Islamic obligation to fight nonbelievers encroaching on Muslim lands.
"It's a very tricky concept," says Mr. Khoury. "It is a part of the dogma and one cannot just deny its legitimacy."
But he says debate over its role in the modern state must be confined to mosques and universities. "States... must clarify to citizens what constitutes the legitimate use of force and what doesn't," he says. In other words, Yemen simply can't allow its citizens to take up arms whenever and against whomever they want.
When he delivered his verdict, Judge al-Baadani argued that resisting occupiers was a part of every religion. "Millions of people believe in this duty whether they are Muslim, Jew or Christian," he argued.
He says he has been "shocked" by the criticism of the verdict not just from the embassy, but from his family in the U.S.
Of late, he says he has been trying to think about the case from the perspective of his American relatives and the U.S. legal system. "According to American law, isn't it OK to fight with people of your own religion against the occupiers?" he asks. "I'd like to visit America to see how the U.S. handles this issue."
Write to Greg Jaffe at firstname.lastname@example.org
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Copyright 2006 Dow Jones & Company, Inc. All Rights Reserved
Saturday, August 12, 2006
A law on the books is still enforceable
WASHINGTON (Reuters) -- In Virginia, under the terms of a 1950 law, no animal may be hunted on Sundays except raccoons, which may be hunted until 2:00 a.m.
In Connecticut, a 1949 ordinance forbids the storing of town records in any place where liquor is sold.
A 1974 Tennessee law states: "It is unlawful for any person to import, possess, or cause to be imported into this state any type of live skunk."
The legal codes of U.S. states, counties and cities are replete with archaic, sometimes nonsensical and often humorous laws, many of which were passed decades or even centuries ago for a reason that seemed good at the time but has long since been forgotten or faded into irrelevance.
But these old laws occasionally come back to bite.
Sheriff Carson Smith of Pender County, North Carolina, recently relied on a 1805 law banning the cohabitation of unmarried persons to give one of his employees an ultimatum.
He told Deborah Hobbs she could either marry her boyfriend, move out of the house they were living in together or get fired. Hobbs, 40, quit and went to the American Civil Liberties Union, which launched a legal challenge to the law.
"This is not a dead-letter law in North Carolina. We have found this statute has been used 36 times since 1997 to charge people with a crime. At least seven have been convicted," said Jennifer Rudinger, the ACLU's North Carolina director.
It turns out six other states also have anti-cohabitation laws: Virginia, West Virginia, Florida, Michigan, Mississippi and North Dakota. Four other states -- Illinois, Minnesota, South Carolina and Utah -- have laws against fornication, defined as unmarried sex, according to Dorian Solot of the Alternatives to Marriage Project, a group based in Albany, New York which advocates for equality and fairness for unmarried people.
"The good news is most of these laws are not enforced, as far as we know," said Solot. "They occasionally come up when a prosecutor is already looking into an individual and may decide to throw another charge at them."
The ACLU argues all these statutes are unconstitutional, citing a 2003 Supreme Court decision striking down a Texas anti-sodomy law, which established a broad constitutional right to sexual privacy.
In Washington state, Gov. Christine Gregoire signed a law last month allowing pregnant women to divorce their husbands. It was prompted by the case of Shawnna Hughes who was denied the right to divorce her physically abusive husband by Superior Court Judge Paul Bastine because she was pregnant.
"There's a lot of case law that says it is important in this state that children not be illegitimized," the judge said at the time.
Most states still have anti-swearing laws on their books which police occasionally try to enforce. Judges usually throw them out but citizens sometimes get fined or spend a few hours in a local jail.
In one Michigan case, a man who let loose a stream of curses after falling out of a canoe in 1999 was convicted of violating a law against cursing in front of women and children. He was fined $75 and ordered to perform four days of community service. In 2002, an appeals court struck down the 1898 law and threw out the conviction.
According to Chris Edwards of the conservative Cato Institute, all this argues for increased use of "sunsetting clauses" when passing new laws and regulations. Such clauses automatically terminate statutes after a specified period, unless the legislature expressly reauthorizes them.
Sunsetting was included in important sections of the 2001 U.S. Patriot Act, passed by Congress shortly after the Sept. 11 attacks to give law enforcement agencies more tools to fight terrorism. Congress is now debating reauthorization and seems likely to make some changes.
"These hearings on the Patriot Act are exactly the kind of thing you want. Government doesn't spend enough time on oversight, looking at what's been done and how it's working," Edwards said.
President Bush's 2001 tax cuts also included sunset clauses; its provision are supposed to expire in 2010. However critics charge that this time, sunsetting was little more than a smokescreen, allowing Republicans to keep the projected costs of the tax cut within limits set by a congressional budget resolution.
Silly laws can be a source of amusement. Two enterprising high school students in Georgia, Andy Powell and Jeff Koon, started an Internet site, www.dumblaws.com. It gets up to 10,000 hits a day and has been spun off into a book and a follow-up on dumb warning labels.
The site contains numerous gems, although Powell acknowledged he has been unable to verify them all.
According to the site, in Minnesota a person may not cross state lines with a duck atop his head. In North Carolina, it is illegal to sing off key. In Idaho, you may not fish on a camel's back while Ohio makes it unlawful to get a fish drunk or to fish for a whale on Sundays.
Copyright 2005 Reuters. All rights reserved.
Wednesday, August 09, 2006
Lawyers in Murder Appeal Use Cigarette-Break Defense
By CHRISTOPHER MAAG
COLUMBUS, Ohio, Aug. 8 — Lawyers for a man convicted of beating a former girlfriend to death with a lead pipe argued before the Ohio Supreme Court on Tuesday that their client should be spared the death penalty, partly because jurors were not allowed to smoke while deliberating.
“A capital trial is supposed to be a considered process,” said Keith A. Yeazel, one of the lawyers. “Jurors shouldn’t be trying to speed up the process so they can go outside and smoke a Kool cigarette.”
The defendant, Phillip E. Elmore, 43, admitted his guilt during his trial in October 2003. While on the stand, Mr. Elmore said, “I feel I deserve the worst punishment that there is,” according to the court transcript.
But in an hourlong hearing here, lawyers representing Mr. Elmore in the appeals process argued that his trial lawyers had failed to provide an adequate defense that might have spared his life.
They also noted that the trial lawyers had not objected when Judge Jon R. Spahr of the Licking County Common Pleas Court rejected jurors’ request for cigarette breaks while they were deliberating. This amounted to discrimination against smokers, Joseph Edwards, another of the lawyers, said Tuesday, and created a reason for jurors to rush through the most important phase of the trial.
The jurors had had to decide whether Mr. Elmore was guilty of aggravated murder and, in a second phase of deliberations, whether he deserved the death penalty or life in prison.
The justices appeared unimpressed with the lawyers’ argument.
“You’re saying that because the trial judge didn’t allow them to smoke that smokers are being discriminated against?” Justice Maureen O’Connor said. “Are you proposing a new right for an entire class of people?”
Before the hearing, Mr. Elmore’s lawyers acknowledged that the tactic was unusual and unlikely to succeed.
“We don’t believe this is the best issue in the case,” Mr. Yeazel said. “But if we don’t raise it on direct appeal, we’ll never be able to talk about it if it becomes an issue in federal court.”
Mr. Edwards said that Mr. Elmore’s father had beat Mr. Elmore and sexually abused his sister. Mr. Elmore was in and out of jail for various offenses from ages 20 to 38, Mr. Yeazel said, including a stint at the Licking County Jail, where his girlfriend, Pamela Annarino, worked as a sheriff’s deputy.
On June 1, 2002, Mr. Elmore broke into Ms. Annarino’s house while she was away, according to the case transcript. He was upset because she had ended their relationship, he said at trial. Ms. Annarino returned home to find Mr. Elmore waiting with a loaded shotgun, the transcript says.
He then choked her and struck her four times in the head with a pipe, according to his confession, which was entered as evidence.
Copyright - The New York Times
from the August 10, 2006 edition -
North Carolina creates a new route to exoneration An official innocence commission can revisit death penalty convictions.
By Patrik Jonsson Staff writer of The Christian Science Monitor
Eighty-five percent of all executions in the US take place in the South.
For that reason alone, anti-death penalty activists claimed a major victory when North Carolina last week became the first state in the union to establish a government commission that will review evidence and, if warranted, send a recommendation of innocence to a three-judge panel.
The creation of the North Carolina Innocence Inquiry Commission fits in with a broader national inquiry into the moral responsibility of legal executions. In North Carolina, it was primarily those who work inside the justice system who helped bring about the commission.
It's an idea with appeal: Lawmakers in at least 12 other states - including Texas, where nearly half of all executions take place each year - are considering filing similar legislation next year, according to the National Coalition to Abolish the Death Penalty.
"North Carolina is now the center of gravity in the death penalty debate," says David Elliot of the coalition. "That's significant because the death penalty increasingly is a Southern phenomenon."
There are 188 convicts in North Carolina on death row. After the high-profile exonerations of death row inmate Alan Gell and "lifer" Darryl Hunt in the state, a judicial review committee found a proliferation of both large and small mistakes that cast a shadow on the state's justice system.
For one: 80 percent of freed prisoners were exonerated because of faulty eyewitness accounts. That opened some eyes, including those of then-Supreme Court Chief Justice I. Beverly Lake.
"We realized we had a problem and that we needed to take a look at what was causing these wrongful convictions and how we might correct the mistakes that were being made," says Judge Lake, a conservative jurist and death penalty supporter who led the reform effort.
The commission, signed into law by Gov. Mike Easley (D) last Thursday, is expected to convene in November.
The state's two top justices - the chiefs of the state Supreme Court and state Appeals Court - will appoint a panel that the law says must include a member of the general public, a sheriff, a victims' advocate, a criminal defense lawyer, a prosecutor, and a state Superior Court judge. The commission will also have a full staff, including two investigators, who will pore through applications.
Judge Lake says perhaps 30 percent of cases will have enough merit to warrant further investigation. Perhaps 10 percent will receive a commission hearing.
"Certainly there will be a flood, but most of them will be screened out immediately," says state Rep. Joe Hackney (D), an architect of the committee that led to the commission's creation. "There'll be a few that get investigated, even fewer where there's relief granted. Maybe even none."
Five of eight commissioners must agree to pass it on to a three-judge panel, which has to vote unanimously to exonerate a convicted inmate. The commission will look at new evidence that's come to light since the trial, but will not consider legal technicalities. It can take years of appeals in many states before the appellate system looks at evidence that was not introduced to the jury at trial.
"The innocence commission is a response to the fact that our system doesn't have a process for reevaluating the innocence or guilt of somebody who has been convicted," says Sam Gross, a law professor at the University of Michigan Law School. "There's a hole in the middle of the process."
But critics say that many states - including Texas - have laws that allow such "actual innocence" claims to be litigated early on in the appeals process. Many death penalty proponents - and critics - agree that there's no irrefutable proof that any innocent person has been executed in the US since the death penalty was reinstated in 1976. Proponents say this proves the system works.
Prosecutors, too, wonder whether the commission will work. An early proposal, which would have allowed those who pleaded guilty in court to claim innocence, was changed so that they will have to wait two years to apply.
"Everybody in prison says they're innocent, so our concern was that if you open it up to all guilty pleas, it would swamp the commission before it ever got started," says Peg Dorer, director of the North Carolina Conference of District Attorneys in Raleigh.
Some see the innocence commission as a victory for activists in one of the busiest death penalty states among the 37 that allow capital punishment. Dozens of communities and hundreds of businesses and churches have called for a moratorium on the death penalty.
The Raleigh-Durham-Chapel Hill "Triangle," a politically left-leaning part of the state, has become a wellspring for activists. At North Carolina's Central Prison in Raleigh - the site of death row and the execution chamber - protesters have engaged in acts of civil disobedience in the driveway to the prison.
Yet even some activists who oppose the death penalty have concerns about the motivations behind the new commission.
"[Commission members] all have their own biases, so how fair is it going to be?" says Scott Langley, an activist in Raleigh. "Time will tell."
For some, the new law offers renewed hope. Roberta and Elmer McNeill have been fighting for 13 years to free their son, Elmer Ray McNeill Jr., who they say is innocent despite his conviction for the murder of two grocery store clerks in an armed robbery.
At a recent gathering at a Raleigh church, the McNeills told a small group of activists that the prosecutor tricked the judge and later met jurors for lunch during the trial. If so, that would be grounds for an appeal.
Said John Strange, of the People of Faith Against the Death Penalty: "I imagine that when you tell friends or you tell strangers this story, they don't believe you."
"No, they don't," said Ms. McNeill.
Perhaps now somebody will. The McNeills say they will be among the first to file papers when the commission opens.
• Jesse DeConto in Chapel Hill, N.C., contributed to this report.