Monday, January 31, 2005

Album of the Day

The Grand Wazoo, by Frank Zappa (1972): While the other big-band Zappa ablum, Waka/Jawaka, has what might be the best minute-and-a-half of Zappa music anywhere (the beginning of "Big Swifty"), The Grand Wazoo has a sustained excellence that its earlier counterpart lacks. The title track hangs together better than "Big Swifty" (on balance), and there's nothing here that feels like filler. A favorite of mine.

The End of Obscenity?

The Supreme Court has repeatedly held that obscene speech is not entitled to First Amendment protections. Nonetheless, its jurisprudence has been a little complex on the issue over the years. First, in Stanley v. Georgia, the Court held that states could not criminalize the private possession of obscene material. In later years, however, the Court held that, Stanley notwithstanding, states could still criminalize the sale or distribution of obscene material.

Over at FindLaw, Julie Hilden discusses a recent decision out of a federal court in Pennsylvania that may have found a way to harmonize the Court's muddled law in this area. In a federal obscenity prosecution (based on a postal inspector going "undercover" as a member of the defendant's website), the judge tossed the case on due-process based privacy grounds. Relying heavily on Lawrence v. Texas, the court held that the stated objective of federal obscenity law (protection of public morals) is no longer a legitimate motivation for the law or prosecution. I'm not sure that this decision will hold up on appeal, but it makes a pretty compelling argument.

We Have a Winner

Perhaps influenced by the glut of "reality" TV, Frank Williams has been letting Nick Heidfeld and Antonio Pizzonia fight it out for the second seat at BWM-Williams, alongside Aussie Mark Webber. The two potentials went head to head over seven days of testing. Heidfeld was quicker on five of those days, which sounds pretty dominant until you realize that the total difference in times between the two drivers was 0.129 second! A slim margin, but a big enough one, as the seat went to Heidfeld.

Mythbusters - Lawsuit Edition

Jonathan Turley has an insteresting column in today's USA Today where he points out that a lot of the "frivolous lawsuit" stories are more urban legend than fact. To be honest, I've never heard any of these specifically cited as examples of lawsuit abuse, but that doesn't mean they haven't been (the one that was made up by an insurance company is pretty sleazy). The moral to this story, more than anything specifically to do with tort reform, is that people who spout off on how dumb a particular lawsuit or verdict is usually don't know the whole story. Be wary of activists brandishing anecdotes.

Friday, January 28, 2005

Album of the Day

Foxtrot, by Genesis (1972): Of the classic Genesis albums, I tend to give short shrift to Foxtrot, mainly because I prefer live versions of it's centerpiece, the 23-minute epic "Supper's Ready." But listening to it today at work I was overwhelmed by how great side 1 (for you vinyl-philes) is. "Watcher of the Skies" is rightfully a classic, with it's massive Mellotron opening and Morse code rhythm driving it along. "Get 'em Out By Friday" is equally good, but in a completely different way. And "Can-Utility and the Coastliners" is an overlooked gem, especially the instrumental section in the second half. Even "Time Table," certainly not a highlight of the Gabriel years, is a nice sort of palate cleanser between "Watcher" and "Friday."

Really Dumb Crook News

You'd be hard pressed to make up some of the really stupid stuff that criminals will do. Take, for example, a Delaware robber. After he and an accomplice robbed a Domino's Pizza, he called the victim on her cell phone - and asked her for a date. She passed the number on to police, who used it to track the dumbass down.

Thursday, January 27, 2005

Kinder, Gentler Cockfighting?

I'm not a fan of boxing - I could never understand the desire to watch two people beat the shit out of each other. But I have an even harder time fathoming why people would want to watch two animals tear each other apart. In Oklahoma, a state legislator is seeking to legalize cockfighting in the state, provided they make use of certain "safety" equipment:

To try to revive it, he has proposed that roosters wear little boxing gloves attached to their spurs, as well as lightweight, chicken-sized vests configured with electronic sensors to record hits and help keep score.

"It's like the fencing that you see on the Olympics, you know, where they have little balls on the ends of the swords and the fencers wear vests," said Shurden. "That's the same application that would be applied to the roosters."

All I can say is that if the Oklahoma legislature has time to worry about tiny chicken boxing gloves, the state must be is damn fine shape.

Wednesday, January 26, 2005

Album of the Day

Storia di un Minuto, by Premiata Forneria Marconi (1971): Day 3 and my CD collection is starting to hit its prog stride. I've worked through some of the first tentative albums from the prog giants. So what does it say that the first "desert island disc" in my collection is PFM's debut? Prog has always done well in Italy (that's where Genesis had their first success) and the country has produced the one of the most vibrant prog scenes outside of the UK. Storia di un Minuto is a classic from beginning to end, drawing heavily from the early British symphonic bands but adding an Italian feel and smatterings of jazz here and there. Now if I can only learn the killer Moog lead from "Impressioni di Settembre" (and find someway to read the Japanese liner notes for my version of the album).

Belt Tightening in F1

As the 2005 F1 season draws near, the powers that be in the sport continue to look for ways to save money and keep the sport alive. In one move, all of the current F1 teams except Ferrari have agreed to a limited number of testing days at a limited number of European circuits. The dirty secret of big time racing is that teams spend much more time and money testing than racing. Ferarri is obviously reluctant to agree to such limitations, since it has its own test track and enough money to sometimes run simultaneous tests at three different tracks! Ferrari is critical to F1's future, but I hope Jean Todt and company realize that the prancing horse can get too big and powerful for its own good.

The other cost cutting maneuver being floated by Max Mosely is some sort of salary cap and age limit for drivers. I'm not quite sure how a salary cap would work. Would it only apply to drivers or teams as whole? Sure, Schumacher is expensive, but I think most of the money goes into development of the cars. Capping drivers' salaries wouldn't end that. And I see no reason for an age limit, unless Max wants to start a senior's tour.

Now That's a Persuasive Political Strategy

You're a local politician, hoping to move your way up the political power structure. But the last time you tried, you barely received a 1% pity vote. How to move people to support your next campaign? Threaten to kill yourself! That's what a St. Louis School Board member is doing, via his blog. A repeatedly failed mayoral candidate, the guy has made lengthy blog posts detailing his history of depression and earlier thoughts of suicide. This is not the guy's first brush with oddity during his political career, according to the St. Louis Post-Dispatch:

He has moonlighted as a sex columnist while a member of the School Board, ran ads for a rich wife to help pay for his 1997 mayoral bid, applied for a reality TV show called "American Candidate," sought election to Congress, the state Legislature and the circuit attorney post, and continues to bombard the city's media daily with meandering e-mails.
He must be an interesting debater. The DNC still needs a leader, right?

Even More Dumb Laws

Today's New York Times has more coverage of the Washington state "woman slander" law I discussed yesterday. The truly great info in the Times story, however, is it's impressive list of similar dumb laws from other states:

Florida has struck down a law forbidding unmarried women from parachuting on Sundays. Michigan has done away with a law making it illegal to swear in front of women and children. Texas women no longer face 12 months in prison for adjusting their stockings in public. And the ladies of Maine can now legally tickle a man under the chin with a feather duster.
I can add to that a West Virginia statute making it a crime to wear a hat in a theater. One can only imagine where these laws come from. Was there, at some point in the distant past, an epidemic of feather duster tickling in Maine?

Tuesday, January 25, 2005

Album of the Day

Tommy, by The Who (1969): Tommy has a weird position in my musical history because I didn't actually own a copy of it until I was in college (and now, unfortunately, my remastered CD version is messed up!). I knew the singles off the album ("Pinball Wizard," "We're Not Gonna Take It," etc.), but I was intrigued by the whole "rock opera" idea. Of course, as the liner notes to the version I have point out, it's not actually a rock opera, but more of a song cycle. It's a concept album, actually, in the most straightforward use of the term. And maybe the fact that I grew up knowing what it was supposed to be but not actually hearing it really primed me for large scale rock works. That prep has certainly served me well.

More Dumb Laws

The march of time looks set to claim another weird outdated state law. Last week it was Virginia's law banning fornication. Now a legislator in Washington state is seeking to take the state's "woman slander" statute off the books. The law makes it a crime to slander a woman. Well, not any woman, as the statute specifically exempts "common prostitutes" and those under 12 from being slandered. I'm not sure what that says about the Washingtonian view of hookers and little girls. The law was upheld by state Supreme Court in 1914, but the case doesn't provide any evidence of the slanderous statement.

Props to the Quarter Milers

Every year, the Speed network awards a "Driver of the Year" award, based on the collected wisdom of several motorsports journalists and a poll of fans. To much surprise, the 2004 winner is Greg Anderson, who won a record 15 races on the way to the NHRA Pro-Stock championship. Anderson is only the second drag racer to win the award (John Force in 1996) in almost four decades. I'm impressed that the journalists (the fan poll went to Champ Car champ Sebastian Bourdais) cut through the "Chase for the Cup" hype to award someone who excelled outside of NASCAR for a change. Congrats, Greg.

Of course, this award applies only to those competing in American championships, so Michael Schumachers latest season of F1 domination wasn't eligible.

Monday, January 24, 2005

Album of the Day

That's right, folks, it's that time of year again. This morning, I began my annual trek through the whole of my CD collection. Unlike prior years, when I went from A to Z, as organized by artist name, this year I've decided to listen to things in chronological order, staring in 1959. Yes, I am enough of a geek to have things organized that way - I confess, I have a database program someone on one of my mailing lists put together for this very purpose. Each day, I'll highlight one album for some random reason. So, without further ado . . .

Time Out, by The Dave Brubeck Quartet (1959): As I did last year, I'll start with the first disc in line. Time Out was probably not the first jazz album to work in lots of odd time signatures, but it was surely the first one to find some commercial success. The tricky rhythms of tunes like "Blue Rondo a la Turk" and "Take Five," would go on to influences load of future musicians who imported them into various styles. They certainly took root in progressive rock, when it got rolling 20 years later.

It's Evolution, Baby

Last week a federal judge in Georgia ordered a local school board to remove a sticker from the front of a high school biology book that labels evolution as just a "theory." Saturday's Boston Globe has an interesting column about the controversy by Kenneth Miller, the author of the book in question. In his column, Miller makes a point that I've made repeatedly in the past (in my pre-blogging days, sadly) - there is a difference between the process of evolution, which is established scientific fact, and the evolutionary theory of human origins. The second thing is rightly called a theory, which distinguishes it from creationism (or "intelligent design" or whatever term the fundies come up with next), which is mythology, at best.

Beware Cop Dogs

The U.S. Supreme Court released its opinion today in Illinois v. Caballes, in which the Court took up the topic of drug-sniffing dogs. Caballes was legitimately pulled over for speeding by a state trooper. Another trooper heard about the stop on the police radio, so he went to the location with his drug-snorting dog. While the first cop wrote Caballes a ticket, the other walked the dog around the outside of Caballes's car. The dog "alerted" to the trunk which, sure enough, contained lots of pot. Caballes was convicted and sentenced to 12 years. The Illinois Supreme Court reversed his conviction, holding that the dog sniff was a search that needed to be based on some sort of suspicion. In other words, cops could not routinely walk a dog around cars they stopped for traffic violations.

The Supreme Court reversed, 6-2 (Rehnquist not participating again). Justice Stevens wrote the majority opinion, in which the Court held that the only thing drug dogs detect is the presence of drugs and we citizens have no reasonable expectation of privacy in contraband. Therefore, since the dog sniff isn't even really a search, the Fourth Amendment isn't implicated and such routine road-side snorts are perfectly constitutional. The more interesting dissent, from Souter, challenged the assumption underlying the majority opinion - that the drug dogs never make mistakes. Such completely competent canines are a "legal fiction," according to Souter. It will be interesting to see if defense attorneys pick up the hint and begin to hammer on dog reliability in such cases.

Friday, January 21, 2005

It's Over - For Now

Thankfully, it appears the the two warring sides in the ongoing U.S. soccer labor dispute have settled their differences, for the time being. The US Soccer Federation and the Players Association have reached a tentative agreement that will run through the rest of the year. Most importantly, it eliminates the threat of a strike or walkout during the final round of World Cup Qualifying, which means Bruce Arena can send the scrubs home and call in the real national team to face Trinidad & Tobago on February 9. This does not end the long-running labor dispute, however. And if the two sides can't work a deal this year, we fact the unhappy prospect of doing this all again in 2006, playing chicken with our birth in World Cup 2006 in Germany.

Thursday, January 20, 2005

SpongeBob, Corrupter of Youth

You can tell that things are going well for the right-wing fringe when they start targeting fictional cartoon characters the scourge of our youth. Yes, the fine folks at Focus on the Family are training their sites on SpongeBob SquarePants. Apparently they're concerned that SpongeBob may be pushing a homosexual agenda on America's unsuspecting youngsters. Aren't sponges asexual in the first place? Maybe Focus on the Family should be concerned that SpongeBob might encourage kids to start budding.

UPDATE: I just saw the video in question on Keith Olberman's MSNBC show. It is a music-video type thing featuring lots of kids TV characters singing "We Are Family." Having seen it, I fully join Focus on the Family in its protest. It is unconscionable that our children are going to be exposed to disco at such an impressionable age. It will surely warp them for years to come.

DOMA Worked - Who Knew?

One of Dubya's shifting second-term strategies has been to apparently pull back from the full-court push to produce a constitutional amendment banning same-sex marriage. Dubya'a apparently decided to adopt a wait-and-see approach to this and see how, among other things, the Defense of Marriage Act (or "DOMA") is applied by the courts. At least one district court is backing Dubya up. This week, a federal judge in Florida dismissed a lawsuit from a gay couple who were trying to get their Massachusetts marriage recognized in Florida. The court said that states had a "legitimate interest" to ban gay marriages in order to preserve "'stable relationships' to raise children with both biological parents." If that's the logic, then I'm not sure Florida has to recognize most heterosexual marriages, either.

Affirmative Action Followup

A couple of weeks ago, I mentioned Vikram Amar's Findlaw column about an interesting new analysis of affirmative action in law schools and its effect on black lawyers. In that column, Amar presented a basic overview of the argument. In this column, he critically examines that argument and raises some very interesting questions.

Wednesday, January 19, 2005

His Name Is Anni, He Looks Like a Potato

This is one of the funniest things I've seen in weeks. Hasbro is rolling out a special Darth Vader variant of Mr. Potato Head. I love the concept and, from the picture with the story, I must have one. A potato-headed dark lord holding forth in my office might help me offset some of the Fourth Circuit's anti-defendant mojo. :)

Trailer Park Jurors has a great story about the "jury pool from hell." It was convened to hear a case involving "Tennessee trailer park violence," but it sounds like the potential jurors were worse than any potential defendant. One juror was excused after announcing that he was "high as a kite," while another was bounced because he was once taken to a mental hospital after almost shooting his nephew (who, quite understandably, wouldn't come out from under the bed. Yet another juror was excused because in his neighborhood it was common knowledge that if you were represented by the defense counsel you were "probably guilty." But the topper would be a gentleman who gave this answer to the question of whether he had been arrested:

Another would-be juror said he had had alcohol problems and was arrested for soliciting sex from an undercover officer. "I should have known something was up," he said. "She had all her teeth."
The defendant, who was accused of hitting her brother's beloved with a brick, was acquitted.

Tuesday, January 18, 2005

Virginia Really Is For (Unmarried) Lovers

Last week the Virginia Supreme Court struck down that state's 19th-century statute outlawing fornication, or two unmarried people having sex. It was a natural result of the Supreme Court's decision from 2003 that struck down Texas's homosexual sodomy law. So now, thankfully, it should be clear that we are all free to plook whomever we want in the privacy of our own homes, as long as everybody involved is a consenting adult. I knew that the Virginia statute wasn't enforced with any regularity (thankfully), but I had no idea that it lay dormant since 1847! How long does a law stay on the books before it just "times out?"

Friday, January 14, 2005

This Is Officially Not an Academic Exercise Anymore

The long-simmering labor dispute between the U.S. Soccer Federation and the men's national team has come to a head, as the Federation announced yesterday that it would call "replacement players" (aka "scabs") into camp to prepare for the upcoming World Cup qualifier with Trinidad & Tobago. Right now, I'm wondering exactly who these guys will be. One option would be current MLS players, but that seems unlikely. First, the MLS players are unionized, just like the nats, and therefore are probably not likely to cross a picket line. Second, any MLS player who has not yet been capped by the national team but has hopes of one day doing so probably won't want to piss off the players currently involved in the dispute. That second problem likewise applies to younger European based players, many of whom surely have a future with the national team. Although I wonder if one of these youngsters has the balls to cross the line anyway, in essence saying "yes, I'm so good that you won't be able to keep me off the national team later." Who does that leave? A-leaguers? College kids? My local 8-a-side team? DAMNIT!

So, ironically, I'm off to watch Matewan, John Sayles's classic flick about the West Virginia mine labor unrest in the 1920s. At least I know who the good guys are in that one.

UPDATE: No, not a settlement, but a really good analysis of the situation by Ridge Mahnoey for A pox on both your houses, in essence.

Through the Booker Looking Glass

Judge Cassell, from out in Utah, who was one of the first district court judges to write a major opinion on Blakely and the Sentencing Guidelines, is first again with a major opinion applying the new dictates of Booker. Cassell, of course, had been applying "advisory" Guidelines for several months and was probably in a perfect position to be first to the punch on this issue. Unfortunately, his very thorough opinion makes me fear that all the promise of Blakely that dangled in the air for six-plus months has vanished into the either. Cassell's approach is that the sentences produced by the Guidelines are inherently appropriate, taking into account all the factors judges can now consider under Booker. Deviations from the Guidelines will be possible only in very rare cases. More rare than the old-fashioned departures? Who knows. And does this all sound a whole lot like the mandatory Guideline system that the Supreme Court says is a no-no? It depends on what the Circuit Court does with it.

The underlying logic of Cassell's opinion is that individual judges are not really capable of adequately evaluating all the appropriate factors because of their limited factfinding. The Sentencing Commission, and, to a lesser extent, Congress, on the other hand is in the position to gather facts from many sources and make policy judgments accordingly. I'll be interesting to see if other district judges take serious umbrage with that analysis. Cassell was not on the bench in the pre-Guidelines era and thus has no experience (that I am aware of) of weighing individual cases and imposing sentence. Maybe (hopefully) some older judges, eager to regain some of the power they had pre-1987, will be more flexible.

So, after three days of reading, rereading, and pounding my head on my desk, I still think that Booker is, on the whole, a bad decision for defendants (even though it was used today in the SDWV to give a small benefit to an elderly defendant who is on death's door). And, with due respect to Prof Berman, the whole situation brings to mind not The Who's "Won't Get Fooled Again" (although that's appropriate), but Fish's "Vigil," from the Scotsman's first solo album:

If there's somebody up there
Could they throw me down a line?
Just a little helping hand just a little understanding
Just some answers to the questions that surround me now.
If there's somebody up there
Could they throw me down a line?
Just a little guiding light to tell wrong from right
Just some answers to the questions that I'm asking you
I keep a vigil in a wilderness of mirrors
Where nothing here is ever what it seems
You stand so close but you never understand it
For all that we see is not what it seems, am I blind?


You're reaching out, you're so close you can touch it
But it all disappears when it's always so near.

Thursday, January 13, 2005

Booker Backlash

One of the fears of some in the defense community as we waited on Booker was that Congress would swiftly overreact to whatever the Court did by imposing a "solution" to the problem by severely jacking up sentences. Sadly, it appears that fear may come true, even without the big Booker victory many of us wanted. As The New York Times reports today, many GOP Congressmen are pissed off about Booker and are eager to correct this "disaster," as one of them put it. So I guess we should get now while the gettin' may be good, before Dubya and his pals screw the whole thing up.

After a second read of the opinion itself, I'm still fairly pessimistic about the outcome. Stevens's opinion really hits some high notes, particularly about how jury factfinding might not be the most expedient means of proceeding, but it protects valuable and long-held rights. Breyer's opinion, on the other hand, does all it can to squirm out from under the weight of that principle.

How Breyer gets from "Congress's goal was uniformity" to "therefore the Guidelines are advisory" makes sense to me in only one way. He was faced with basically two options that would serve separate goals. The option that really would provide some uniformity, Stevens's plan of grafting jury factfinding onto the Guidelines, would make it more difficult for the Government to jack up sentences (or at least it would make them work harder). The other option, the advisory scheme, does away with uniformity in order to maintain the "real conduct" system of the Guidelines. "Real conduct" is code for "relevant conduct," the system that allows a judge to consider all kinds of unproven information when imposing sentence. That makes it much easier to produce higher sentences. Sadly, it appears that a desire to maintain draconian sentences won out over some kind of uniformity and Sixth Amendment principle.

That's Creative Lawyering

I know the Ninth Circuit is renowned for its liberalness and willingness to stretch the law a bit, but I think even they may have a hard time swallowing an argument made by attorneys trying to save a condemned prisoner from execution. They argue that California's method of execution, lethal injection, infringes upon their client's First Amendment rights because the initial paralyzing drug prevents him from calling out or otherwise indicating whether he is in pain. I don't see this going anywhere, but I applaud creative lawyering in the name of side-stepping the death penalty.

What Do You Call a Lawyer With No Sense of Humor?

An asshole. Like the guy in Long Island who had two guys arrested for telling lawyer jokes while waiting in line at the courthouse. Granted, given that the comedians in question are members of Americans for Legal Reform, there may be some "history" between they and the offended barrister, but it doesn't help the profession's image to have somebody arrested for making jokes about us. Anyway, it seems like the only crime these guys committed was telling the same tired worn-out lawyer jokes that have been passed around for years. Come up with some new material, folks!

Wednesday, January 12, 2005

The Supremes Speak on the Guidelines - Finally

A wise man once sang: "There's a big difference between kneeling down and bending over." Since June of last year, a lot of us in the criminal defense community have been kneeling down, praying (figuratively, of course) for the Supreme Court to deliver some "blessed relief" from the harshness of the Federal Sentencing Guidelines. Unfortunately, it looks like we've been bent over instead.

The Supremes today handed down their decision in US v. Booker, in which they considered the applicability of Blakely v. Washington to the Federal Sentencing Guidelines. In one of the weirdest decisions I have seen, the Court first held that Blakely does apply to the Guidelines, but then turned around and basically eviscerated the effect of applying Blakely in the first place.

A little background first. Blakely, which I wrote about back in June, reinforced the holding of Apprendi that any fact that increases a defendant's statutory maximum sentence must be proven to a jury beyond reasonable doubt. The real shocker of Blakely was its definition of "statutory maximum" to include mandatory sentencing guideline ranges. That changed the long-held perception that Apprendi did not apply to the Federal Sentencing Guidelines. Blakely set the federal criminal practice on its ear, and the Supremes quickly picked two cases to hear to resolve the question of whether Blakely impacted federal practice. After months of waiting, the Court announced its ruling today.

First, a 5-4 majority held that Blakely applied to the Guidelines. The Court rejected the (IMHO fairly weak) arguments of the Government that tried to distinguish between the Guidelines and the state system struck down in Blakely. Therefore, the Sixth Amendment required that any fact increasing a statutory maximum sentence, including Guideline ranges, must be found by a jury. Most prognosticators figured that the Court would come to that conclusion.

However, a different 5-4 majority, did not require that district courts go forth and require juries to find facts to support each potential Guidelines sentence enhancement. Instead, the Court held that Congress would not have intended such a system because it would essentially do away with the "real conduct" (aka "relevant conduct") setup that was essential to the system. Instead, the Court simply excised from the relevant statute any requirement that district courts sentence defendants within a Guideline range. To put it simply, the Guidelines became merely advisory, rather than binding. Sentences can still be appealed, and will be reviewed under a not too well defined "reasonableness" standard.

In practical terms, I think we're back to 1983, before the Guidelines were created. Judges regain a significant amount of discretion in imposing sentences. The Guidelines must (Breyer's word) be consulted, but it's unclear how much influence they should have or whether the traditional Guidelines judicial factfinding will still take place. There is still some appellate review, potentially more than in the "good old days," but exactly how much is anybody's guess. In fact, after a first read of the decision, I think the new power brokers in federal sentencing will be the Circuit Courts of Appeals. If they tightly define "reasonableness" in terms of Guideline ranges, not much will change. On the other hand, if "reasonableness" means basically that district court's have free reign in sentencing as long as they justify it, things will be quite different.

On the whole, I don't see this as a great victory for defendants. The grand terms of Stevens's opinion, which elevates substantive rights over practical expediency, are pretty much gutted by Breyer's. I'm not sure how our district judges will take to their newly found discretion, but I'm not confident that the Fourth Circuit will allow the system to work in a way that's very beneficial to defendants.

What I fear is that a system similar to what exists now with supervised release revocation proceedings. Every federal prisoner is placed on supervised release, which is sort of like probation, after they are released from prison. If they violate the terms of that release, they go back to prison, sometimes for longer than their original sentence. There are Guidelines for supervised release revocations, but several Circuits, including the Fourth, long ago concluded that they are not binding on district courts when imposing sentence. As a result, at least in the SDWV, judges almost always impose a harsher sentence than the Guidelines recommend (but still within the statutory range). I can see the same thing happening with run-of-the-mill sentencings in a post-Booker world.

Seven months ago, I had high hopes that the system might actually be reformed in a way to make it more fair and just to all those who are exposed to it. Now I'm not so sure.

For more interesting discussion of Booker, there are lots of posts over on Sentencing Law and Policy (props to Prof Berman for being the clearinhouse for Blakely/Booker info) and this interesting one at The Volokh Conspiracy (I think I agree with Prosecutor, sadly).

Blow Monkeys of the World Unite

The Observer (from the UK) had a fascinating piece over the weekend about the global cocaine trade. It was written by a documentary filmmaker who spend a year and a half investigating the business aspects of the drug, from the streets of Britain to the jungles of South America. What's interesting is that he was a self-described supporter of the UK's war on drugs (hard drugs, at least) but he became a proponent of legalization by the time his work was over. His article should give pause to anyone who is convinced that the "war on drugs" is being won on any tangible level.

Happy (Belated) Anniversary to Me!

Yesterday marked the one-year anniversary of Infinity Ranch. I celebrated by taking the night off and watching my alma mater embarrass itself by losing to Marshall 59-55 in their annual basketball match up. Oh well.

Thanks to everyone (hell, anyone!) who's read the Ranch over the past year, commented, or contacted me.

Monday, January 10, 2005

Shot Down by the Supremes

My best hope yet of taking on the Supreme Court face to face got shot down today. You can read the Fourth Circuit's opinion in the case here (the dissent got it right, needless to say). We filed a petition for cert, which generated an order from the Court requiring the Solicitor General to respond. Normally the Court just denies the petition without seeking a response (at least in our cases). So I thought there might be a slim chance of actually getting some play in this case. No such luck, as it turned out.

A Twist on the Right to Die

Connecticut is making preparations for its first execution in 45 years, thanks to a confessed multiple murderer who says he wants to die. The guy has fired his public defenders and hired his own lawyer "to defend what he calls his right to die." Not surprisingly, his PDs have gone to the state supreme court arguing that the guy is out of his gourd and can't rationally make the decision to fire them. The way the guy frames the issue, as his right to die, makes me wonder how the right-wingers who so passionately advocate the death penalty and would rush to flip the switch in this guy's case would square that action with their opposition to allowing terminally ill non-murderers to exercise their own right to die? Would the Supreme Court, which has held the Constitution does not protect the right to die, step in to keep this guy from trying to exercise it? Surely a killer doesn't have more rights than a near-death cancer patient.

Protecting the People of Mississippi From Satire

Two regional library systems in Mississippi have refused to stock John Stewart's tongue-in-cheek best selling textbook, America (The Book). Apparently the good folks down there can't handle a page full of naked Supreme Court justices (just like Wal-Mart shoppers can't). That page made the book the "only book I've objected to so strongly that I wouldn't allow it to circulate," said one librarian with 40 years experience. I find that incredibly hard to believe. Maybe book distributors know they shouldn't send "hot" literature down there in the first place?

Friday, January 07, 2005

Talk Radio Payola - Who Knew?

USA Today, thanks to a Freedom of Information Act request, has a really funny / disturbing article today about a wonderful use of your tax dollars. It seems that Dubya's folks paid right-wing African American radio personality Armstrong Williams $240,000 to promote the "No Child Left Behind" program to the black community and other black broadcasters. This sort of payola may violate federal propaganda laws (who knew there was such a thing - how does Dubya's everyday bullshit get past this?) and an investigation is under way. As for Williams:

he understands that critics could find the arrangement unethical, but "I wanted to do it because it's something I believe in."
Yeah, it's always a little easier to do something you believe in when somebody gives you a quarter of a million dollars to do it, isn't it? Jackass.

An Interesting Take on Affirmative Action

One of the critiques of affirmative action programs, especially in education, is that they do more harm than good in the long run. The theory goes that by granting black students admission to schools or programs based on something other than merit, it reinforces stereotypes that blacks aren't capable of making it on their own. This "stigma" argument is well worn, but an upcoming law review article attempts to examine more concrete evidence of the problems of affirmative action programs.

Specifically, the author argues (using extensive statistical analysis) that law schools that give excess weight to race in their admissions policies set up many black students, who might not have made the cut without an affirmative action plan, to fail both academically and when it comes time to take the bar exam. This performance gap exists not only at the top tier law schools (Harvard, Yale, Cal, etc.), but trickles down the line all the way to the non-ABA accredited mail-order diploma mills. Vikram Amar lays out the theory in more detail over at Findlaw today, and will examine critiques of the results next week.

Thursday, January 06, 2005

The Love You Take Is Equal to . . .

The response of the American government and population to the tsunami disaster in Asia may be having a beneficial unintended consequence. It seems that when you help people out in desperate need, they tend to like you a bit more. Therefore, some hearts in Muslim areas hit by the tidal waves are softening towards Americans. Will it completely restore our credibility in the eyes of Arab nations in the wake of the fiasco in Iraq? No, probably not. But it certainly won't hurt. To me, this exchange says it all:

The region also offers plenty to provoke American xenophobia: Earlier this week, CNN aired a photograph of an Indonesian man who was receiving a U.S. aid package — while wearing an Osama bin Laden T-shirt.
That, I think, is a very powerful image: we (in this case) really are there to help people in need, without regard to politics or religion.

How Did L&O Miss This One?

Andrea Yates, the Texas fruitcake (my mother hates that term) who drowned her five children in a bathtub a few years ago, had her convictions and sentences overturned by a state appellate court. It seems that during the trial, evidence was presented that an episode of Law and Order that aired shortly before the children were killed showed a woman drowning her kids and "getting away with it" by pleading insanity. Yates was an avid L&O watcher, so the implication was that she got the idea from the show and was somehow faking her mental problems.

Except it never happened. After trial, defense lawyers contacted Dick Wolf's people who revealed that no L&O had ever featured that story line. The appellate court, confronted with obviously false evidence (the state agreed), really had no choice but to reverse. Oddly enough, the "evidence" first came up during defense cross-examination of a state witness. The state then picked up on it and ran with it, but this was not a case of the state fabricating evidence to secure a conviction (as the CNN story implies). You can read the opinion for yourself here.

The real story for me, however, is that there is some idea/scenario/plot that L&O and its various spin-offs hasn't done yet!

Wednesday, January 05, 2005

Know Your Rights

Ever wondered if you have to answer questions asked to you by a police officer? Whether you have to let the cops search you car? Or your house? Or yourself? Never fear, the ACLU has you covered. Head on over to their website and download their "Bustcard." It's a quick synopsis of applicable citizen-police Constitutional law, handily boiled down on a card that fits in your wallet, purse, or glove compartment. Get yours today!

It Can't Be That Simple, Can It?

One of Dubya's supposed goals in his second term, and a holy grail of the right, is the "simplification" of the federal income tax. I was forced to take a tax law class in law school. The West-published paperback version of the Internal Revenue Code that I had to lug around all semester is rivaled in size and heft only by the West versions of the Federal Criminal Code and Rules and the U.S. Sentencing Guidelines. In other words, tax law really is hugely complex and "simplifying" it probably would not be easy.

But one columnist in USA Today today has an interesting proposal. He would eliminate the IRC as we know it and replace it with a three-section Code: first it declares that all income is taxed, second it defines income, and third is sets the rates. That's it - no exemptions, no write-offs, no loop holes. So such things as the mortgage interest exemption (which I just now qualify for, so hands off!) and deductions for charitable donations would be gone. It would certainly streamline things, but I can't see it happening anytime soon, for reasons set forth in the piece:

It would be tough on CPAs and tax lawyers and charities. The home-building and real estate industries, which depend on the mortgage deduction to fuel demand for ever-bigger houses, would take a hit. Wall Street, which depends on tax preferences to promote investing, would face a period of adjustment, as would many government agencies, which depend on tax-free bonds for capital projects.
I'm sorry, you just can't piss that many people off at one time and be successful.

Tuesday, January 04, 2005

A DeLayed Reaction Is Better Than None at All

Yesterday, House Republicans decided that maybe it wasn't such a hot idea to change their ethics rules just as they might actually have some negative consequences. The caucus approved a repeal of an amendment to the ethics rules that would have allowed those in leadership positions (read "Tom DeLay") to continue in those positions even after being indicted for a crime. This was due to the supposedly "partisan" investigation into DeLay's campaign finances that has already netted several indictments. One would hope that this change of heart was motivated by the GOP's desire to avoid looking hypocritical and opportunistic and ensuring that their leaders have not even the taint of impropriety. For once, principle might trump political expediency:

Jonathan Grella, a DeLay spokesman, said DeLay was “denying the Democrats their lone issue. Anything that could undermine our agenda needs to be nipped in the bud.”
Or not.

Monday, January 03, 2005

Hooray for Us!

Last week, ABC's World News Tonight named bloggers as (some of the) "People of the Year" for 2004. If there's a monetary payout (like with a Nobel Prize), I'll expect my very very small check in the mail promptly.

Calculus of Evil

Yesterday's New York Times Magazine had an interesting piece about a fairly revolutionary sentencing scheme that is at work in neighboring Virginia. For non-violent offenders, judges engage in a mathematical calculation to determine a defendant's propensity to commit another offense. Those that score low (good) can get probation or house arrest, while those that score high (bad) are consigned to prison. One problem with this system, as the article points out, is that one major factor in the calculus, sex (women generally reoffend at a lower rate than men), may make the whole system unconstitutional. In addition, it seems to punish the poor more harshly because it takes employment and housing factors into account. If a person's lack of employment contributes to their chances of reoffending, maybe we should focus on making sure they get a job. After all, no matter how evil they are, they'll get out of prison eventually.

Let the Blood Vetting Begin!

Today's New York Times has an article previewing the Senate confirmation hearing for Attorney General nominee Alberto Gonzales that begin Thursday. The general consensus is that Gonzales will be confirmed, with Democratic support, but that the confirmation process will be bloody enough to prevent him later being elevated to the Supreme Court. Which is appropriate, given Gonzales's role in telling Dubya how he could avoid such "quaint" legalities as the Geneva Conventions (or even the Constitution).