Wednesday, November 29, 2006

The Unbearabe Weight of Ignorance

Among the many stories that came out of the Congressional elections earlier this month was that of Keith Ellison, a newly elected Congressman from Minnesota who became the first Muslim elected to Congress. Apparently, this has pissed off some of the right-wingers something fierce. The latest "problem" is that Ellison will swear his Constitutional oath with his hand on a Koran, rather than a Bible. Any sane person would think, "so?", to this point, but not Dennis Prager. For Dennis, this is the beginning of the end times:

Keith Ellison, D-Minn., the first Muslim elected to the United States Congress, has announced that he will not take his oath of office on the Bible, but on the bible of Islam, the Koran.

He should not be allowed to do so -- not because of any American hostility to the Koran, but because the act undermines American civilization.
That's right - a religious person swearing an oath upon his particular religious book "undermines American civilization." For reasons adequately discussed here, here, and here, Prager is just completely out in right field on this one.

As ignorant as Prager's bloviations are, some of the comments to that column are downright frightening. The number of people willing to overlook the plain meaning of the Constitution, and their fundamental misunderstanding of the document, is depressing (how can anyone call a Muslim insisting on swearing to the Koran part of the "secular" left!?!). Occasionally, the comments cross over to appalling:
Being a Muslim is not a religion, it is a disease, a disease that needs to be eradicated from the United States of America before it's to late, it appears to have already infected the brains of the people in Minnesota who voted this jerk off in to office.
That pearl of wisdom comes from someone called "hntr admin," pimping a website called Seems fairly clear whose heads he's talking about.

Legal Suits to Make Benefit Great Firms of Lawyers

I have withstood the hype tide and not yet seen Borat: Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan*, but I have been keeping up on the pile of lawsuits heading the way of Sacha Baron Coen, et. al.. Over at FindLaw, Julie Hilden examines one of the suits and its chances for success. One part of the discussion I find particularly disturbing:

The plaintiffs say things happened as follows: Cohen and his producers plied them with liquor until they were intoxicated, and then got them to sign releases - based on assurances that the film would only be shown in Europe, and that it would not disclose their names, their college, or the name of the fraternity to which they belonged. (They also claim they relied on representations made on a purported website for the production, and believed they would have a chance to 'affirm or disaffirm' the releases after they were filmed.)

The plaintiffs also allege that while drunk, they 'engaged in behavior that they otherwise would not have engaged in.' They say the film put them in a false light when it showed this behavior, and thus depicted them as 'insensitive to minorities.' But that's putting it kindly: Viewers of 'Borat' will witness them make blatantly racist and sexist statements. For instance, they agreed with Borat that slavery was a good idea.

The emphasis is mine. So, it's perfectly OK to get on camera and make "blatantly racist and sexist statements" as long as Mom and Dad aren't going to see it? Nice! So much for ethics and/or morality being what you do when nobody else is looking.

* For what it's worth, I saw Borat open Saturday Night Live this past weekend and wasn't particularly impressed. But SNL has a way of sucking the funny out of just about everything, so maybe that's not an accurate impression.

The Ugly Side of the Beautiful Game

Today's New York Times has a depressing article about violent groups of soccer fans called "ultras" that are a fairly large problem all over Europe. The article focuses on groups in France, particularly those related to Paris St-Germain (whose only common thread, it seems, is that they support the same team). While the American stereotype of all Euro soccer fans as hooligans doesn't fit fans as a whole, the ultras are problematic. That's what happens when a sport can plays such a great roll in the lives of its fans. Which is why sometimes I'm glad soccer in the United States is still a second-tier sport.

Monday, November 27, 2006

New Tunes (With Funny Names)

Over the weekend, I had a chance to finish up a couple of songs I've been working on and upload them to ACIDPlanet. They both got funny names that are (I'm absolutely serious) subject headers in SPAM Emails that I got. One is "Outpatient Beast," a 5-part 15-minute epic that is by far the most ambitious thing I've tried. Whether it works as a whole, I'm not sure. The other is "Suave Udder," (told you I couldn't make these up), a much more straight forward groove-based bass/drum/guitar piece.


'tis the Season

Now that we've officially begun the Xmas holiday madness, er, season, I've hauled out my extremely limited holiday decorations. God may be your copilot, but Santa is my striker!

Unfortunately, the hat dents his effectiveness in the air a little bit. Plus, I've noticed that when I'm listening to something particularly bassy (he sits on my right stereo speaker) he tends to move. Pete Trewavas nearly shimmied him off the edge this weekend!

Ladies and Gentlemen . . .


Wow! That's why it's called the Beautiful Game.

Wednesday, November 22, 2006

Happy Turkey Day

Before I shut down the Ranch for the long weekend, I wanted to pass along this story from today's New York Times about proper Thanksgiving etiquette and the struggle to maintain it:

I have a friend whose Thanksgiving meal went south just after her grandmother called her brother a cowardly Communist. Another friend’s nightmare began when her mother’s new boyfriend started talking about breasts, and he wasn’t referencing the turkey.
My personal favorite Thanksgiving disaster comes from a phone call to the Bob & Tom radio show last year from a woman whose parents had recently divorced after 28 years of marriage. At the first Thanksgiving after the split, mom went on a tirade about her ex that ended with her announcing (in the caller's words) "that man blanked me in the blank for 28 years and I've got the hemorrhoids to prove it!" The world's best pumpkin pie can't cover that up.

Happy Thanksgiving, everybody!

But, My Mom Says I Have Charisma

Over the past few days I've been reading a forthcoming law review article called Structural Reform in Criminal Defense, by Michigan law prof Eve L. Brensike. While I don't agree with her proposal,* she does make one interesting observation on the distinction between trial lawyers and appellate specialists (at page 44):

Scholars and practitioners alike recognize that, in our current system, trial and appellate attorneys have different roles and therefore the jobs attract individuals with different skill sets. The trial attorney is the nitty-­gritty, into the facts, charismatic litigator who regularly interacts with clients, witnesses, and jurors whereas the appellate attorney is an erudite, book worm who reads appellate reporters and enjoys holing himself up in an office to write appellate briefs all day.
OK, OK, so I do sit in my office all day with the door closed reading cases and writing briefs. But I'm not that dull! Thankfully, my girlfriend seems to go for the erudite book worm types. :)

* Basically, Brensike proposes to move ineffective assistanceof counsel claims from post-appeal habeas proceedings to the direct appeal process, providing for means to expand the record to deal with such claims. I'm not convinced that the proposal is either practical (it will dramatically increase the price of indigent representation) or beneficial.

Tuesday, November 21, 2006

Science v. Religion

There's an episode of The Simpsons that involves an alleged angel and an dispute between the forces of science (Lisa and Steven Jay Gould) and religion (everybody else) that winds up in court. After everybody leaves the court, the judge continues on anyway to issue a restraining order keeping science and religion 500 yards apart at all times.

Sometimes I think that such an arrangement would be a very good thing. Science and religion have separate areas of "expertise," if you will and should be able to peacefully coexist. Unfortunately, with the rise of the Religious Right, religious dogma has forced itself into the public arena when it comes to issues such as stem cell research or creationism in an attempt to take on science on its own turf. The long-time detente that's existed between the two sides appears to be crumbling because the scientists are starting to fight back. Some scientists think that it's no longer sufficient to simply be accommodating of religious beliefs, but rather expose them to the same scrutiny as other empirical claims. While that might make for interesting debates, I'm not sure it will do the public good in the long run.

As for the "evangelistic" scientists, one wonders if they've seen a couple of recent South Park episodes and will heed their warnings.

RIP, Robert Altman

One of the planet's great directors, Robert Altman, died today. Altman was in the vanguard of American independent film in the 1970s and continued working up to this year. Altman's massive resume includes classics such as MASH, The Player, and Gosford Park, as well as the innovative TV political mockumentary Tanner 88 (along with Doonesbuy's Gary Trudeau). Altman practically perfected the huge-ensemble-cast-with-intersecting-story-lines with Nashville (which I haven't seen) and Short Cuts (which I have). He will be missed.

Suing the NewsHarpy!

Remember a couple of months ago when CNN NewsHarpy Nancy Grace grilled a "person of interest" so hard that the woman went off and committed suicide? Well, the family hasn't forgotten and has sued Grace for her role in the woman's death. It couldn't have happened to a nicer wall-eyed weaselette!

Shame Found, Alive But Confused, by Rupert Murdoch

Well, that was quick! The media tizzy that developed after the announcement of OJ's new book If I Did It, Here's How It Happened, finally got too hot for Fox head honcho Rupert Murdoch. When your own FoxNews talking heads are calling for blood, you know you're in trouble. So Murdoch, who owns both the publishing company releasing the book and the TV network set to air the accompanying interview, pulled the plug on the whole shebang. It almost causes me physical pain to say this but - well done, Rupert.

EDIT: OK, so I'm watching Countdown and Denise Brown is telling Matt Lauer how NewsCorp approached the Browns/Goldmans with "hush" money. Only after they turned the payoff down did the book/show get pulled. So, looks like my praise of Rupert was premature.

Saturday, November 18, 2006

Beware Kooks Bearing Baked Goods

Critics sometimes contend that Supreme Court justices (and most appellate judges, in particular) are too far removed from the real world to appreciate the practical consequences of their opinions. I'm not saying that's true, but these comments by former Justice O'Connor sort of bolster that perception. It seems that in April 2005, a Connecticut woman sent threatening letters with baked goods in them to various government officials, including all nine Justices. Turns out the goodies were laced with large amounts of rat poison. This was largely overlooked until O'Connor talked about the incident this year:

'Every member of the Supreme Court received a wonderful package of home-baked cookies, and I don't know why, (but) the staff decided to analyze them,' the Fort Worth Star-Telegram quoted O'Connor as saying at the legal conference November 10 in the Dallas area.
Um, gee, could the staff's suspicions have been raised because every member of the Supreme Court received a wonderful package of home-baked cookies?!?!? That's the kind of thing that would send my bullshit detector right off the chart! But, then again, maybe I'm more in touch with the real world (or simply more cynical) than the Justices.

I Don't Grasp This Logic

Yesterday's Wall Street Journal has a column discussing the recent hullabaloo about a "portrait" of Jesus that hung in a West Virginia high school. Two local residents sued, aided by the ACLU and Americans United for the Separation of Church and State, to have the painting removed. The suit was settled (after the painting was stolen, IIRC - it may have been returned/replaced), with the school agreeing not to display the painting (except as it may appear in textbooks, etc.).

In discussing the case, the columnist makes this point:One fact that made the claim of church-state violation so odd in this case was the time-line:

The disputed portrait had been hanging in the school for a long time. In 1969, a retiring guidance counselor, who had the portrait in his office, gave it as a farewell gift to the school’s principal (now also retired), who decided to hang it outside his office. Thus students, parents, teachers, employees and visitors to Bridgeport High School apparently suffered from this violation of the First Amendment for 37 years.
I've seen this argument made before. The implication has been that the fact that the painting hung unobjected for so many years essentially dissipates any First Amendment problem. That simply doesn't make any sense to me. A violation of the law is a violation of the law. The fact that the community has been silent in its face for 37 years can't change that.

Thursday, November 16, 2006

A New Frontier in Tort Reform?

Here's an interesting legal case. A German court has ordered a doctor to pay child support for 18 years of the life of a child that was born after the doc performed a botched contraceptive procedure on the mother. German newspapers are not pleased:

The Karlsruhe-based federal appeals court ruled on Tuesday that the doctor must pay his former patient, now a mother of a three-year-old boy, 600 euros ($769) a month because she became pregnant after he implanted her with a contraceptive device. "A child as a case for damages -- this perverse idea has now been confirmed by one of Germany's highest courts," conservative Die Welt daily newspaper wrote in an editorial on Wednesday.
This reminds me of similar consternation in this country caused by the recognition of "wrongful life" torts, in which a doctor fails to properly diagnose a birth defect in utero that would have lead the mother to abort the child. The parents and child are compensated for the tremendous cost of caring for the disabled child.

Legal Argument in an Unlikely Place

In the past few weeks I've spent a fair amount of time waiting in doctors' offices, thanks to a lovely little infection I picked up back in Richmond (I think). That's allowed me to do a fair amount of non-legal reading. Believe it or not, when it comes to reading for pleasure, I tend to stay away from legal stuff (even Grisham-esque stuff). Still, given how embedded in our daily lives the law is, it still pops up where you least expect it.

I'm currently working through a collection of Hugo Award winning short works (novellas, novelettes, and short stories) from the mid 80s. Yesterday, I read the 1983 short story winner, "Melancholy Elephants," by Spider Robinson. It consists almost completely of a conversation between two characters about the future of copyright law. I didn't see that coming! In the story, an activist tries to convince a Senator to oppose a bill that would extend copyrights in perpetuity, with protected works never entering into the public domain. The activist's argument is that creative types (musicians, writers, artists) don't actually "create" anything, they just "discover" different combinations of sounds, images, etc. Since the number of those combinations are necessarily finite, never ending copyright protection will eventually shut off the creative element. It's an interesting thought - it makes me feel a bit better about not coming up with particularly original musical/literary ideas.

Ironically, since 1983, US copyright law has gotten progressively worse. In 1998, Congress extended copyright terms to 70 years beyond the life of the creator or 95 years total in the case of works created for corporations. The Supreme Court turned back a challenge to the law based on an argument similar to the one presented in Spider's story - that extending copyright protection so long essentially subverts the Constitutional goal of copyright in the first place (to further the "progress of the useful arts."

Wednesday, November 15, 2006

On Universal Jurisdiction

A group in Germany last week petitioned the German government to begin criminal proceedings against Donald Rumsfeld for committing crimes against humanity. This is made possible by Germany's universal jurisdiction statute, which gives the Germans the ability to prosecute any war crime committed against anyone on Earth by anyone on Earth anywhere on Earth. No connection to Germany required. While I love the idea of Rummy getting some seriously accelerated Karmic payback, this isn't the way to do it. Rather than blather on about why, I'll simply point you to Glenn Greenwald's discussion of it. The comments are worth reading, too.

What Happened to Shame?

I saw an ad for this last night during House and nearly fell out of my chair. OJ Simpson has written a book and will give an interview on Fox in which he will not admit that he killed his ex-wife and Ron Goldman. Rather, he will answer questions as if he comitted the murders. I swear to your God that I am not making this up:

The taped interview was conducted by publisher Judith Regan, who is putting out a book Simpson wrote in which he ''hypothetically describes how the murders would have been committed,'' Fox said in a statement on Tuesday.

The interview will be the basis for a two-part Fox special, tentatively titled 'O.J. Simpson: If I Did It, Here's How It Happened,' airing on November 27 and November 29, Fox said. The book, 'If I Did It,' goes on sale on November 30.

I'm not sure what surprises me more - that OJ would be so shameless as to try a stunt like this, or that Fox would go along with it. Oh, wait a minute, who am I kidding!

Monday, November 13, 2006

I Wonder If "No" Still Means "No"

The Ninth Circuit blog has a post about a really disturbing case that the court decided last week. In Anderson v. Terhune, the Ninth held (2-1) that a person being questioned by police does not have his right to remain silent violated when the cops keep asking questions once he says "I plead the Fifth." Actually, the cops said "what's that?", sadly. I know this was a habeas case from state court, meaning the Ninth has to be doubly deferential to the state court's resolution of the issue, but they've taken flyers on much less clear issues before!

Don't You Dare Whistle the Theme Song

Do not taunt Andy Griffith. That would include changing your name to, possibly, benefit from the association betwixt Matlock and law enforcement. A desperate ploy? Sure. But it happened, and Andy wasn't happy:

The lawsuit, filed Nov. 3 in U.S. District Court in Madison, alleges that William Harold Fenrick, 42, violated trademark and copyright laws, as well as the privacy of actor Andy Samuel Griffith, when he used his new name to promote his candidacy for sheriff in southwestern Wisconsin.

The lawsuit says the former Fenrick changed his name for the 'sole purpose of taking advantage of Griffith's notoriety in an attempt to gain votes.' It asks the court to order him to go back to his original name.

Modern politics wasn't kind to Andy/Fenrick - he finished third in a three-way race last week.

Wednesday, November 08, 2006

Election Thoughts

Whew! I'll leave the debate/dissection of the national election results to others. I'll just say that it was a fairly stinging rejection of Dubya and "Staying the Course," not just in Iraq but domestically as well. At least one of Dubya's cronies, Rumsfeld, has seen the writing on the wall and is resigning. Will others follow?

On a local level, things were much less interesting. However, there was one nugget from the night that just tickles me - Don Blankenship's "For the Sake of the Kids" (wherein "Kids" really means "Big Coal and the Chamber of Commerce" campaign failed miserably. Blankenship is the president of Massey Coal and made major waves in the 2004 state Supreme Court election by pouring tons of money into an effort that resulted in the defeat of a pro-plaintiff Justice by a pro-business one. In this election, Blankenship used his "For the Sake of the Kids" campaign to urge voters to go Republican and hard. Not only did most of the Democratic targets of Blankenship's spending retain their seats in the state legislature, the GOP actually lost ground in both houses!

Maybe Don can now retreat to the Resthome for Guys Who Couldn't Buy Elections along with Ross Perot and Michael Huffington. Please. I'll send you a fruit basket!

Tuesday, November 07, 2006

Turning It On Again

Well the Genesis reunion that I blogged about a while back is officially a go. The band will start out with a stadium tour or Europe in June 2007 before coming to the states. Given how poorly Calling All Stations was received (the US leg of the tour was cancelled), one wonders if they're being a bit optimistic in aiming for stadiums. I'm not fond of stadium gigs (seeing Marillion, Adiran Belew, and Mike Keneally up close and personal in clubs spoiled me), so I'll be interested to see what happens when they hit the US.

As for repertoire, some teasing statements from the boys at today's presser:

Keyboardist Tony Banks said that the Genesis gigs would include songs from most albums in the band's history.

'If Genesis is playing on the radio, it tends to be Follow You Follow Me or I Can't Dance,' said Banks.

'Genesis has another side to it, a more complex area of music. One side gets slightly more attention than the other. We are trying to reacquaint people.'
Ah, but imagine what might have been:
The band revealed that the original idea had been to reform with ex-bandmates Peter Gabriel and Steve Hackett and perform the 1974 concept album The Lamb Lies Down on Broadway.

Collins said that the five members had met and discussed the plan, but Gabriel had been 'more sensitive' about what such a reunion would mean.

'This is just music, us getting together and playing some songs,' he said. 'Peter has been doing his thing since he left and he is just a little over-cautious about going back.'
All of this leaves me wondering a few more things:
  • Where's the rest of the band? Since Hackett left in 1977, Genesis had been basically a 3-piece in the studio, fleshed out to a 5-piece live band with ex-Zappa/Weather Report drummer Chester Thompson and guitarist/bassist Darryl Steurmer. Neither of those guys were involved in the CAS tour (Thompson was touring with Phil's solo act at the time, IIRC). Will they be along this time, or will we get fresh blood?
  • Wither Calling All Stations? While lots of people bash Calling All Stations, it's got a few good tunes on it. Will they incorporate one or two into the show, or will CAS become the Drama of the Genesis catalog?
  • Will there be new material? Presumably with the tour kicking off in June there isn't time for a new album. But I wonder if a new tune or two might crop up during the rehearsal process. Release it/them via iTunes, play it on the tour. Makes sense to me.
OK, I'm probably setting myself up for heartbreak - but I'm kinda excited about this now!

UPDATE: According to the official press release (you'd think I'd read that, wouldn't you?), Thompson and Steurmer are on board.

Paper or Plastic?

I just cast my vote for this mid-term election cycle and had an interesting experience. At my polling place, I was given the choice between an old-fashioned paper ballot (read by optical scanner) and a touch-screen ballot. Given all the problems with the electronic voting things today (and before), I went with paper. The poll workers thought that the paper would eventually go away, but they weren't sure when.

Anybody else have a similar experience?

Monday, November 06, 2006

Rest in Peace, Frank

One of the nice things about being a part of the Federal Public Defender system is that you are part of a network of experienced, committed attorneys all over the country. It's like being part of some secret brotherhood. The community lost one of its leading lights over the weekend, as Frank Dunham, formerly the defender in the Eastern District of Virginia passed away after a long battle with brain cancer. From the Washington Post obit:

A longtime Northern Virginia lawyer and former prosecutor, Mr. Dunham created the public defender's office virtually by himself in 2001. One of his first clients was [Zacarias] Moussaoui, the only person charged in a U.S. courtroom in connection with the Sept. 11, 2001, terrorist attacks.

In the aftermath of Sept. 11, Mr. Dunham zealously battled the government on behalf of an al-Qaeda member who despised his own attorneys. Moussaoui eventually pleaded guilty, but only after Mr. Dunham and his team tied the case up in the courts for several years.
Dunham's team, following on with Moussaoui's case after Frank was forced to leave the office to fight his cancer, managed to save Moussaoui from execution - an amazing accomplishment for the only man charged in some connection with the 9/11 attacks. Dunham also successfully argued Yaser Hamdi's case before the Supreme Court.

Thank you, Frank, for your example to all of us in the FPD community. RIP.

Wednesday, November 01, 2006

How Not to Win Cases and Influence Judges

When people proceed pro se in our legal system - that is, without a lawyer - they're held to the same rules and procedures that attorneys must follow. Most people don't know that. Even if they do know that, they aren't really clear how to meet those standards. Here's a good example, the Wisconsin appeals court case of Kolve v. Cook. The parties had a rental property dispute, which was resolved in the court below in Cook's favor. On appeal, proceeding pro se, Kolve failed to follow the Wisconsin appellate rules and therefore lost his case. How bad was it? Consider footnote 4 from the court's opinion:

For example, Cook states, 'Mr. Kolve stated that I, Mr. Cook broke a window and the bench for his picnic table – not cool!' 'Not cool' is not a legal argument.
I'd like to think that even in my weakest briefs - the ones that are so bad they stink of death as they leave the office - rise above that level. Of course, I'm a profession. Remember kids - don't try this at home.