Thursday, September 30, 2004

Will F1 Lose It's Heart?

In what has, sadly, become a perennial late-season tradition, F1 grand poobah Bernie Ecclestone is threatening to keep the British Grand Prix off next year's schedule. The current venue, Silverstone, hosted the first F1 race of the modern era and the British GP has been a fixture on the schedule ever since. There are, in my mind, three European circuits that must be on the F1 calendar: Spa, the last of the true driver's tracks; Monza, home event for Ferrari and the soul of F1; and Silverstone, home race for the majority of the teams and the heart of F1. Bernie's already dicked around with Spa (on again off again on again) in his pursuit of bigger pay days in Asia. Will it come to the point that, without Sliverstone and on the heals of Ford/Cosworth's pull out, that the other powers in the sport finally tell Bernie to go fuck himself and go it on their own?

Dubya, Kerry and the Supreme Court

USA Today today has an article about the potential impact of the upcoming presidential election on the future of the Supreme Court. The current court has been together for longer than any other Court since the 1830s and will almost certainly change in the next four years, so the next Pres will probably have a major impact on the Court. A good (and sobering) read to get you ready for the debate tonight.

Dodging Jury Duty

Findlaw today has this article that provides some sad statistics about jury service in this country. Only about 30 percent of those summoned for jury service show up. It should be no surprise then that when a Los Angeles judge recently ordered almost 300 wayward jurors to present themselves and explain their absences only 8 of them actually showed up. C'mon people, the jury is the great bulwark of liberty standing between you and the state. It only works if you participate.

Of course, maybe some people are down on jury duty because of shenanigans like this. A judge in California has been rebuked for telling potential jurors to lie in order to avoid being on a jury. The judge told jurors that if they might have any racist tendencies, but didn't want to disclose them during voir dire, to make up something else that would allow them to be kicked off the jury. I understand where the judge is coming from - most people who are prejudiced in some way don't want to admit it, certainly not in open court. But there has to be a better way.

Wednesday, September 29, 2004

The Mighty Moog Makes a Comeback

The New York Times today has an article about the resurgence of old-fashioned Moog analog synthesizers in modern music. Musicians have junked modern digital keyboards, which sometime come across too clean and sterile, for the warmth of the old Moog (and Hammonds and Mellotrons, too). Of course, the newer Moog synths are a little more refined than Keith Emerson's 500-pound beast from the old ELP days!

Welcome to West Virginia, Martha is reporting that Martha Stewart's request to serve her prison time in the Northeast has been denied and that the Bureau of Prisons is shipping her to lovely Alderson, West Virginia. Alderson is, I believe, the first federal facility for women and has been home to some notorious criminals, including "Squeaky" Fromme. So, Martha, on behalf of the locals, welcome to the Mountain State.

All Is Well, Go Hug an Oak Tree

Apparently things really took off in this country overnight. Bin Laden and his cronies must be dead, the so-called economic recovery has really blossomed, and John Ashcroft handed Dubya his letter of resignation. That's the only way I can fathom the House taking the time to vote to make the Oak our national tree. That's the kind of tough decision making we pay them six figures for! Of course, now we have to worry about all that "Oak oppression."

Tuesday, September 28, 2004

Dissecting Arbaugh

If the presidential race is a little to laid back and collegial for you, come to West Virginia and check out our Supreme Court election. One seat on the sharply divided court. Currently occupied by Justice warren McGraw, he fought off a well-funded pro-business candidate in the Democratic primary and is now staring down the barrel of a similar challenge in the general election. For this round, his opponents have brought to light a decision of the WVSC from this March in which the court reversed a trial court's decision to revoke the probation of a convicted child molester. A group called And for the Sake of the Kids is using that case, called State v. Arbaugh, to paint McGraw as soft on crime and a general menace to your children. Do their charges stack up? Not quite.

Arbaugh involves a man who, while a child, was viscously sexually assaulted by friends and family. Not surprisingly, he eventually acted out in the same way, assaulting his brother and others while only 15. He eventually pled guilty (to only one count) of first degree sexual assault, a crime that generally carries a 15-35 year prison term. Because Arbaugh was a youth when he committed the crime (although tried as an adult), he was subject to various non-incarceration punishments, including probation. He had problems with each, although for things like using drugs or "showing disrespect," not actual physical or sexual violence towards others. Finally, an exasperated trial judge refused to give Arbaugh one more chance, denied his motion for a reduction of sentence to probation, and hit Arbaugh with the full force of the long prison term.

The issue in the case was this: did the trial court abuse its discretion by denying Arbaugh's motion? In a per curiam (unsigned) opinion, the WVSC said yes. All five justices then wrote or signed onto dissenting and concurring opinions. Justice Davis (who, I've read, actually wrote the per curiam opinion) wrote a dissent that was joined by Chief Justice Maynard, Justice Albright wrote a concurrence that was joined by Justices McGraw and Starcher, Justice Starcher wrote a brief concurrence and dissent, and finally Chief Justice Maynard added his own dissent.

The upshot of all these opinions is this: the dissenters believe that the West Virginia Youthful Offender Act required Arbaugh to be sent to prison, with no alternative. The de facto majority (Albright, Starcher, and McGraw) believe that other WV statutes and regulations allow the district court an option of reinstating probation and that the egregious circumstances of this case warranted another term of probation. From what I've read, both sides make good arguments: there is an apparent tension between the Youthful Offender Act and the main probation statute, not to mention one Rule of Criminal Procedure. How this ever got to be a per curiam case I will never know, as this issue is one that needs definitively resolved and obviously has polarized the court.

Back to the For the Sake of the Kids people. Did McGraw (and Starcher and Albright) get it wrong in this case? Quite possibly, but it's hard to tell, particularly given the horrible per curiam opinion. If they are wrong, however, they're wrong on the law, not on the general issue of whether child molesters are good people. The For the Sake of the Kids folks try to paint this picture of McGraw gleefully voting to let Arbaugh back on probation, which I suspect is far from the truth. The group gives no background on the case, including the fact that Arbaugh was 15 when he committed the one offense he has actually been convicted of and suffered horrible sexual abuse in his childhood. Perhaps child molesters should never be eligible for probation. That's a perfectly valid policy position, but not one that a sitting Supreme Court justice can take. The great irony is that the pro-business folks who attacked McGraw so much in the primary did so precisely because they allege he makes policy from the bench. You can't have it both ways, folks.

So, is the Arbaugh case completely fucked up? Most definitely. Does it point to some serious problems of statutory and constitutional interpretation that the Supreme Court needs to address? You bet. Does it mean that Warren McGraw is dangerous to your kids? Hardly.

Put Me In, Coach

Over at The Yin Blog, the proprietor has speculated on whether federal appellate arguments could be made into compelling "sports" television. We'd need cameras first, of course, which shant happen for a long time (even though many state appellate courts have cameras and live web feeds), if at all. As a potential "player" in these games, I say bring 'em on! I'm willing to sell patches of my suit-space to willing sponsors - "I represent the appellant and I'm here today with help from the fine folks at McDonald's, and I'm lovin' it!" As to the actual coverage, ESPN will show anything, so why not. I'd prefer color commentary from someone like Speed's David Hobbs, however, who would not doubt have a ball with our legalisms.

Will the Supremes Reign In Eminent Domain

It used to be that if your property was safe from appropriation by any government (state, local, or federal) unless 1) you were paid for the taking and 2) the taking was necessary for the public good. You know, to build school, a hospital, or a hyperspace bypass. Important things. Lately, local governments have been using the power of eminent domain to take land from one group of people (usually home owners) and give it to another (usually business owners) in the name of "economic development." This has understandably pissed quite a few people off and the courts have seen many challenges to this process.

Finally, the U.S. Supreme Court is stepping into the fray by agreeing to review a case from the Supreme Court of Connecticut. The state court held 4-3 that it was proper for a town to take some homes on the waterfront to clear the way for a commercial development, to include a riverfront hotel, health club, and offices. The court concluded that the promise of increased tax revenues from the development justified the taking.

Thursday, September 23, 2004

Stupid Congress Tricks

A while back I blogged about a bill circulating in the House that would attempt to short-circuit some of the gay marriage debate by stripping the U.S. courts (including the Supreme Court) of jurisdiction to deal with the issue. In spite of the Constitutional problems with such an approach, the House is at it again, this time with the "Pledge Protection Act," which would do the same thing regarding constitutional challenges to the Pledge. As Marci Hamilton points out over at Findlaw, this is an idea that is not getting better with age.

My Name Is Swaggart, I Am an Asshole . . .

Legendary televangelist Jimmy Swaggart is at it again. His most recent moment was this choice quote from his TV show:

"I've never seen a man in my life I wanted to marry. . . . And I'm going to be blunt and plain: If one ever looks at me like that, I'm going to kill him and tell God he died."
Putting to one side, for a moment, the prospect of a gay man hitting on Lonesome Cowboy Jim (a very desperate gay man, I expect), leave it to Swaggart to respond not just with violence, but with killing. Of course we all knew that this hypothetical gay man would have no chance with Jimbo, unless he liked to dress up an 1865 Louisiana-style prostitute.

There Are No Free Rides, Baby

It appears that the buzz is about to wear off from Oprah's great car promotion. I refuse to call it a giveaway, as she didn't give anything, other than free publicity to General Motors. Anyway, the winners are being informed that along with their new Pontiacs will be coming income tax bills of up to $7000. This is Tax Law 101, people - you must pay taxes on any income you receive, including prize winnings. And nobody can pay the taxes for you, as that is actually just extra income.

Wednesday, September 22, 2004

Let's Get Jimmy Kimmel for the Debates

USA Today's cover story today is about how Dubya and Kerry are constantly trying to "out manly" each other. I guess this is part of the outreach to the "NASCAR dads", particularly in swing states like West Virginia. This all seems completely hilarious to me, but I guess I'm not one of the "manly" men their trying to sway - I don't own anything in blaze orange, for example. If it's really all about being "manly," then maybe we should do away with the traditional debate formats this year. Instead of Jim Lehrer, let's have Man Show creator Jimmy Kimmel to moderate. And instead of a reasoned exchange about the issue, Kerry and Dubya can just "whip it out" and prove who's manlier once and for all.

Tuesday, September 21, 2004

On Calling a Flip-Flopper a Flip-Flopper

Finally, someone in the national media has applied the "flip flop" test to Dubya. USA Today's DeWayne Whickham lists just a few of Dubya's changes of course from the last few years in his column today. All that it means, of course, is that Dubya is a politician, just like any other, and will sell out any position for political expediency at the drop of a hat. That his people have convinced many voters that only Kerry possesses this trait is quite an achievement.

Justice at the Olimpico

As I suggested the other day, UEFA officials have awarded Dynamo Kiev a 3-0 win for their interrupted match with AS Roma last week. The match was abandoned at halftime, with Kiev up 1-0, due to a Roma fan who plunked the ref in the head with some sort of object. Right call, I say.

Monday, September 20, 2004

Sir, Step Away from the Maypole

I'm currently working on an appeal for a client who was convicted of illegally reentering the country after having been deported. Since I know nothing about immigration law, I rooted around on Westlaw for some sort of primer on the topic. Luckily I found Immigration Law for Criminal Lawyers: An Overview (16-WTR Crim. Just. 18 (2002)), which did a good job of summing things up in about 11 pages. In the process, I came across this amusing piece of history:

What was the first removal in this country?

Thomas Morton of the Massachusetts Bay Colony, for various infractions including free-living, encouraging conviviality and merriment, writing bawdy verse, ridiculing the Puritans, selling firearms to Indians, and erecting a Maypole. In 1627 the Pilgrims cut down the pole, arrested Morton, and exiled him to the Isle of Shoals. He escaped to England but reentered this country in 1630, only to have his property confiscated and be exiled to England. He reentered again, in 1634, and was imprisoned, fined, and exiled to Maine. (This is not atypical of what one sees today in federal court.)

Imagine the effort that it took to cross the Atlantic twice after being kicked out of Massachusetts in the 1630s. That must have been one hell of a maypole.

An End Run Around the Electoral College

Every four years, folks pop up who want to get rid of the Electoral College and move towards direct popular election of the President. That was particularly true in the wake of the 2000 election, where Dubya lost the popular vote but won in the Electoral College. Doing away with the EC itself would require amending the Constitution and is probably not a realistic option. But states have some flexibility in how they interact with the Electoral College and change may be coming there.

Yesterday's New York Times had an article about an initiative on the Colorado ballot that would lead to the apportioning of the state's electoral votes. Unlike Maine and Nebraska, which award electoral votes to the winner in each Congressional district (it has always been the same throughout the state), Colorado would divide its electoral votes among the candidates based on their share of the popular vote. So if Dubya beats Kerry in Colorado by 51% to 49%, Dubya would get 5 electoral votes and Kerry would get 4. Under the traditional system, Dubya would take all 9 votes.

The Colorado proposal seems like an end-run around the EC to me. It basically tracks the popular vote, although some of the lesser candidates would not receive anything due to the rounding necessary when you only have 9 electoral votes (California might work differently). And, yes, it's a little shady to put the measure on the ballot this November and have it in effect during this year's Presidential election. Foes of the proposal (including a group called Coloradans Against a Really Stupid Idea) are claiming that it's all political, as Kerry stands to gain a few electoral votes from the traditional Republican stronghold. USA Today has arguments both pro and con today.

Thursday, September 16, 2004

And I Thought the NHL Lockout Would End Sports Violence

Yesterday's second day of UEFA Champions League action was blotched by a nasty incident at the Olympic Stadium in Rome. As the match between AS Roma and Dynamo Kiev moved towards halftime (with Kiev up 1-0), the ref gave a Roma defender a red card. Right after, some idiot in the crowd beaned the ref with something, resulting in a nasty cut and lots of blood on his face. The game was never restarted after halftime. UEFA is pondering what the result of the match will be until next week. I have to say that I think Dynamo gets the three points - they were winning at the time of the stoppage, which was no fault of their own or of their fans. If Roma can't control their tifosi, that's they're own damn fault.

"Mission Accomplished" My Ass

The cover story in USA Today today was a pretty sobering account of how bad things are in Iraq and how, quite frankly, the powers that be in the US completely fucked up by getting us into this mess. I think the best summary in the article is this:

"The bottom line is, at this moment we are losing the war," says Andrew Bacevich, a former Army colonel who teaches international relations at Boston University. "That doesn't mean it is lost, but we are losing, and as an observer it is difficult for me to see that either the civilian leadership or the military leadership has any plausible idea on how to turn this around."

While "it is certainly a good thing that Saddam Hussein is gone," it is difficult to say that Iraq is in better shape, Bacevich says. "Iraq was a lousy place to live when Saddam was in power, and Iraq is a lousy place to live with Saddam Hussein gone and this growing insurgency" in his place, he says.

Another analyst, from the Cato Institute, rejects the comparisons to US involvement in Vietnam and says the developing morass in Iraq is more like the Soviet occupation of Afghanistan or the British occupation of Northern Ireland. And we all know how well those went.

Wednesday, September 15, 2004

The Death of the Death Penalty

The New York Times is reporting about a study that finds fewer and fewer death sentences are being handed out in each of the past four years. From a 1990s average of almost 300 death sentences imposed every year, the number has dropped to 174 per year. As activits fight to get rid of the death penalty through legislative means or the courts, one wonders if the jury system may simply weed out the punishment in a more practical way. Also, if it's true that the death penalty has overwhelming public support, how come the "public" sitting on juries are imposing it less often?

Tuesday, September 14, 2004

Is God Judgment Proof?

As the headlines of the Catholic Church child sex-abuse scandal fade away, the lawsuits resulting from the acts themselves and the cover-ups are winding their way through the system. Once liability is established, of course, the focus turns to damages. Some are making a rather unique argument that the Church, unlike any other entity, should be shielded from potentially huge punitive damage awards under the First Amendment. Today at Findlaw, Jared Leland of The Becket Fund for Religious Liberty lays out that argument. Oddly enough, Marci Hamilton, in a column last week at Findlaw, completely blows the argument out of the water. I just can't see any reason for a court to buy Leland's arguments. Almost all the negatives he ascribes to punitive damages apply whether the defendant in question is the Church, a hospital, or General Motors. In other words, he makes some potentially valid policy arguments against punitives in general, but isn't convincing as to why the Church should be exempt from them.

Is Yates Involved, Somehow?

BBC Online tells a story of ralli interuptus. Authorities in Spain impounded more than 70 vehicles involved in a London to Benidorm (?) road rally. Organizers claim that the event strictly obeys all traffic laws and the cars only get turned lose at race tracks along the way, ala the One Lap of America. Authorities disagree, claiming to have clocked some participants at 125 mph on public roads and suggesting that the event is closer to the One Lap's granddaddy, the infamous Cannonball Run. Either way, I imagine Brock Yates is involved, even if just in spirit.

Monday, September 13, 2004

Local Boy Makes Good

USA Today has a nice piece today about Danny Panoz, the head of Panoz Auto Development, makers of the Esperante. Danny was born in Lewisburg, West Virginia, so good for him. Of course it helps when dad, also with West Virginia ties, is Don Panoz, pharmaceutical magnate and sugar daddy of the American Le Mans Series, who happens to be the company's primary investor.

A Glimpse of the Future of Sentencing?

Yesterday's New York Times had an interesting article about a sentencing set for Tuesday in federal court in Utah. The defendant was convicted of multiple sales of marijuana. During a couple of those sales, he had a pistol in a holster around his ankle. He never took it out, used it, or threatened the buyer with it. When he was arrested, the police found some other guns stashed away in his home. Due to current mandatory minimum laws, this first time offender is facing a mandatory 63 years in prison. The judge (one of the first to apply Blakely to the Sentencing Guidelines) appears to be looking for some alternative.

Some of the anti-Blakely arguments warn of this type of Draconian sentencing could be more common if the Sentencing Guidelines are dismantled by the Supreme Court. That's certainly possible, but by no means necessary.

Thursday, September 09, 2004

Guns Don't Kill People, Puppies Do is reporting a story about a puppy who managed to turn the executioner's pistol back on the executioner himself. A man was preparing to shoot a litter of seven pups in their canine heads because he couldn't find homes for them. So execution is the next best option?!? It happened like this:

On Monday, Bradford was holding two puppies -- one in his arms and another in his left hand -- when the dog in his hand wiggled and put its paw on the trigger of the .38-caliber revolver. The gun then discharged, the sheriff's report said.

If this guy dies (which is unlikely, he got hit in the hand), he's got Darwin Award candidate written all over him. No word on whether the pup will be charged with malicious wounding.

Wednesday, September 08, 2004

More Electoral Shenanigans

The long-time mayor of my home town of South Charleston is threatening to wreak some mild havoc in the Electoral College. Mayor Richie Robb, a Republican who was selected as one of the state GOP's electors, has stated publicly that he will not cast his vote for Bush if Dubya wins WV's five electoral votes. Robb admits that "[i]t's not likely that I would vote for Kerry," but is exploring his options as to how he could effectively protest Dubya's policies with his vote.

Maybe the Devil Made Him Do It

A man in South Carolina has so far evaded capture after robbing a bank at pitchfork-point. The man, wearing a mask and wielding the 4-foot farm implement, made away with an undetermined amount of cash. He dropped the pitchfork during the getaway. I wonder if there's an offense level enhancement for use of a pitchfork lurking deep in the Sentencing Guidelines somewhere? I wouldn't be surprised.

Tuesday, September 07, 2004

Here Come the Sex Police

Sunday's edition of The Washington Post had a fascinating article about a recent prosecution under Virginia's anti-adultery law. Not surprisingly, the defendant in this case, a former town attorney, was "turned in" by his former mistress once he broke of their affair. He waffled about his defense, and eventually decided to take a plea rather than challenge the law in light of the Supreme Court's recent decision in Lawrence v. Texas. The article gives some good background on where these kind of ridiculous laws came from and argues that they should be on their last legs.

An American in F1?

The possibility of an American driver moving into F1 in the near future came one step closer to reality this weekend. The appropriately named Scott Speed wrapped up the 2004 Formula Renault Eurocup Championship this weekend, leading an American 1-2 at Imola. Speed's championship marks the first time an American has won a European junior formula title. Next stop, hopefully, will be the Renault-powered replacement for F3000 next year.

Kinder, Gentler, More Effective Interrogations

USA Today has a report about the change in interrogation techniques in Iraq since the Abu Ghraib abuses surfaced. Techniques have shifted from physical abuse and intimidation to more subtle techniques that emphasize the establishment of trust between the interrogator and suspect. Guess what? The new "kinder, gentler" method is producing more useful intelligence than the old methods. Maybe Kerry was on to something when he talked about waging a "more sensitive" war on terror?

Friday, September 03, 2004

Passing the Hat for Defense Attorneys

I've mentioned before the particularly sad state of indigent criminal representation in Massachusetts that is leading to some defendants being release from jail because they wait more than a month to meet with their attorney. David Feige over at Slate offers more detail on the situation and proposes a more long-term solution to the problem: the establishment of a state public defender system. Maybe it's because I've been one for almost four years, but I find it hard to believe that some states (and some areas of this state) continue to resist PD offices. As Feige points out, we generally work cheap and are actually committed to providing the best representation to our clients. Surely the $30 an hour the private appointed counsel get isn't a sufficient incentive to obstruct the establishment of PD offices. At least I'd hope not.

Ready For Some Electoral Deja Vu?

Now that the conventions are over and the presidential campaign can really begin, have you every wondered if something like the electoral chaos that surrounded the 2000 election could happen again? USA Today has, and presents a series of scenarios that could thrown the country into a state of post-election higgledy-piggledy. Statisticians have figured plausible scenarios that could lead to both another Bush win in the Electoral College without winning the popular vote and a Kerry victory obtained the same way. It's even possible for the two candidates to end with a 269-269 tie. That scenario, which would send the selection of the president to the House and vice-president to the Senate could result in a hybrid administration in 2005: how about Bush-Edwards for four years!

Thursday, September 02, 2004

Five Long Years

Five years ago this month, a not-yet-sworn-in attorney drove his plain-jane Escort onto the Laidley Field parking lot and took his first timid run through the cones of an autocross course. That day I managed to finish dead last in my class and a whopping 54th out of 59 overall entrants. Even without much skill (a state that may not have improved much), I was hooked and I've been regularly autocrossing ever since. So, in honor of this dubious distinction, September is time for the Legal Eagle Racing Fifth Anniversary Tour, beginning this weekend in Lexington and continuing on in successive weekends in Charleston and Fairmont. It should be an interesting three weeks.

Setting the Stage for the First Monday

Since fall is upon us (it's official once the college football season gets into full swing this weekend, as far as I'm concerned), now would be a good time to get ready for the upcoming Supreme Court term. The Court's term will kick off in October with oral arguments in two cases, Booker and Fanfan, that bring the whole Blakely mess right back to the Supremes's doorstep. Over at Findlaw, Edward Lazarus lays out the basics of Blakely and its progeny and argues that while the U.S. Sentencing Guidelines may not survive in their current form, they do have some value and should be preserved in some form or fashion.

Meanwhile, if you're really feeling scholarly, over at Sentencing Law and Policy you can read the briefs filed in Booker and Fanfan yesterday by the Solicitor General and the Sentencing Commission. Personally, I'm not persuaded by the arguments that distinguish the Guidelines from the Washington system obliterated in Blakely, but I'm a little biased.

It Really Was Somebody Else Who Looks Exactly Like Me, Officer

DNA evidence has revolutionized criminal law, allowing authorities to place a suspect at the scene of a crime with just a stray strand of hair or drop of blood. Everybody's DNA profile is unique and the odds are overwhelmingly slim that two different people would leave behind the same genetic info. Except for twins, of course. As this article discusses, that situation comes up more often than you would think. The test now is to dive deep into the genetic code of the twins and see if there is anyway to point the finger at one, rather than both, as the perpetrator.

Wednesday, September 01, 2004

No Pay for Play

As part of its continuing series on how to improve sports, USA Today's suggestion for today is to pay college athletes to play sports. Mostly, of course, this meaning paying football and basketball players, since that's where the money is, anyway. I understand the arguments in favor - these guys make the colleges and universities an immense amount of money and deserve their cut. My only problem is that they actually get a cut, a scholarship. Not only a scholarship, but admission to the school in the first place when, in some (many?) cases, the players can't earn admission on academic merit. If you want to get rid of the wink-and-a-nod admissions and take away the scholarships and pay the athletes in lieu of that, fine by me. Of course, at that point, let's just separate the athletics from the schools completely. That's not a bad idea, actually.

The Passion of the Buck

As expected, the DVD release of Mel Gibson's The Passion of the Christ is selling like hotcakes, moving 4 million copies on its first day. Record sales are anticipated of this bare bones DVD - no director commentary, no deleted scenes, no alternate ending (ha!), etc. The cynic in my thinks that this might be a clever ploy to pump more money out of the faithful down the road. What are the odds that a "collector's edition" will appear in a few months, maybe in time for Easter?