Bravo, Mika

Bra - fucking - vo!

When Black Friday Comes

On a good day, I neither win or lose any cases. One a bad day, I lose one. Today, I lost 19. That's right - I lost 19 cases in one day. Today was the final day for the Supreme Court to release orders and shut down until October. The Court took the opportunity to clear out dozens (hundreds?) of cases that were held in abeyance pending last week's opinion in Rita.

Rita affirmed the appellate use of a presumption that sentences imposed within the Sentencing Guideline range was reasonable, which results in those sentences being affirmed. Since the Fourth Circuit employs the presumption (Rita, in fact, was a Fourth Circuit case), we lodged a lot of cert petitions with the Court on the hopes that the presumption would be rejected and those folks would get resentenced.

Unfortunately, it didn't work that way. So, while I knew these cases were lost, it's still a bit disheartening to leaf through page after page of the Court's order, highlighting each of the 19.

Problem Solving in the Middle East

What do you do when your autocratic religious beliefs prevent the female half of you population from doing something as mundane as riding a bike in public? Do you reconsider your dogma in light of it's unworkability in a modern world? No - you fix the bike:

The Islamic Republic of Iran has devised an 'Islamic bicycle.' This new vehicle comes fully equipped with a cabin to conceal parts of a female cyclist's body.

The new technology is less about the bike and more about suppressing women. Iran, unlike Saudi Arabia, allows women to drive cars. In fact, Iran's top race car driver, Laleh Seddigh, is a woman. Women also ride motorcycles, although they must be accompanied by a man (and must sit behind him).

But Iran forbids women from riding bicycles (thus, the newly designed bike). The belief is that sexuality is easily stimulated in both sexes. The country's supreme leader, Ayatollah Ali Khamenei, announced in 1999 that 'women must avoid anything that attracts strangers, so riding bicycles or motorcycles by women in public places causes corruption and is thus forbidden.'

I know it's not very culturally sensitive but that's just silly. On the other hand, interesting note about Iran's top racer. Here's some more about her.

The Wit and Wisdom of Richard Neely

In a comment to my post about an odd West Virginia duelling statute, Bo provides a nugget of wisdom from former WV Supreme Court Justice Richard Neely. Neely has a history of colorful rhetoric, on paper and in person (maybe jedi jawa will remember Neely's advice to us one summer in high school). As a criminal defense lawyer, my favorite Neely moment is this one:

Violent crime is almost always committed by the poor, the uneducated, or the stupid. Crimes of passion are committed by everyone, of course, but a trial involving a middle-class man meticulously planning the murder of his wife, so he can collect the insurance and run off with his secretary, is sensational precisely because it is so rare. Traveling salesmen who spend their off-hours robbing all-night grocery stores, married schoolteachers who take nights off to rape sixteen-year-old girls, and prosperous farmers who eliminate market competition in the neighborhood by setting fire to their neighbors’ barns are real oddities. Consequently, the entire criminal law system most often boils down to the powerful state with all its weapons – police, prosecutors, courts, prisons, and probation officers – going after poor, uneducated, stupid folks.

That's from Neely's dissent in State v. Rummer, 432 S.E.2d 39, 55 (1993). Which is very true. The mundanity of everyday crime would confound most folks who don't have daily contact with it.

When Will Jesus Bring the Bong?

One of the highly anticipated cases from the Supreme Court that was handed down yesterday was Morse v. Frederick, otherwise known as the "Bong Hits 4 Jesus" case. A very divided Court (as seems par for the course these days, Chief Justice Consensus notwithstanding) ruled against the student in question in a decision that raises more questions than it answers.

The case involved a high school student in Alaska named Joseph Frederick. One morning, his school principal decided to allow students to head outside and watch the Olympic torch pass by on its way to Salt Lake City. Frederick was late for school that day and actually didn't make it in before everyone headed outside. He joined some friends across the street and, as the torch passed by and TV cameras were rolling, unfurled a 14-foot banner that said "Bong Hits 4 Jesus." The principal noticed, confiscated the banner (Frederick refused to take it down), and later suspended him. Frederick sued, arguing that the principal's actions violated his First Amendment rights.

For Frederick's part, he claims that the banner had no real message, didn't mean anything, and was done simply get attention. In other words, he employed the technique of Jon Anderson (“the words don’t really mean anything, they just sound good together”) with the motivation Eric Cartman (“I’m gonna’ be on television! I’m gonna’ be on television!”), or perhaps Suzanne Stone ("You aren't really anybody in America if you're not on TV.")

That's not how the Court, in an opinion by the Chief Justice, saw it. The banner preached a message of illegal behavior and therefore the principal had a right to step in and quash it. Distinguishing the famous Tinker case, not altogether persuasively, the Court essentially sacrificed student speech on the altar of the drug war, where the carcasses of the Fourth and Fourteenth Amendment already fester.

The dissent, by Justice Stevens, is not much better, hanging its hat on the nebulousness of the message, but apparently agreeing in theory that "drug speech is bad" and therefore verboten in school. Justices Alito and Kennedy, in a concurrence, try to narrow the holding as much as possible to not allow suppression of honest political speech, but one wonders how successful that attempt will be. Justice Thomas goes completely off on a different track, would gut Tinker completely, and return the First Amendment's place in schools to its 19th century state (which is to say, with no application whatsoever).

This was an odd case to make it this far and get the Court's review. For one thing, the kid filing suit positively disavows that he was trying to make any greater point with his speech other than "hey, check me out." That probably deserves some kind of First Amendment protection, but it's hardly the core conduct that the Founders imagined the First Amendment would protect. For another, there's at least a legitimate argument to make that the kid wasn't within the school's reach when he unfurled the banner - they were not actually in school at the time and he hadn't even been in the building that day. I know the Court unanimously found otherwise, but c'mon!

With all that, I tend to think that Justice Souter had it right. He concurred in the judgment, but would have resolved the case on qualified immunity grounds (briefly, a public figure can't be liable for violating constitutional rights if the state of the law is unclear). That would have left the school with some authority to act, but without causing even more higgledy-piggledy in the legal landscape.

There's a lengthy and interesting discussion of Morse in all its glory over at Volokh Conspiracy.

You Shall Not Taunt Even Once

This morning I was doing some research in the criminal section of the West Virginia Code for an extradition case we have and came across this odd anachronism:

If any person post another, or in writing or in print use any reproachful or contemptuous language to or concerning another, for not fighting a duel, or for not sending or accepting a challenge, he shall be guilty of a misdemeanor, and, upon conviction, shall be confined in jail not more than six months, or fined not exceeding one hundred dollars.

That's WV Code section 61-2-24, passed in 1882 and not touched since. In the context of the 19th century attempt to clamp down on duelling, it makes sense - if you want to keep people from getting sucked into a duel, make it a crime for the other side (or mischievous bystanders) to basically yell "chicken" and goad the other party into it. I suppose that might be the very definition of fighting words, huh?

If You're Reading This Quickly . ..

You must be in another country. According to USA Today, the United States lags well behind other nations when it comes to Internet speed:

The median U.S. download speed now is 1.97 megabits per second — a fraction of the 61 megabits per second enjoyed by consumers in Japan, says the report released Monday. Other speedy countries include South Korea (median 45 megabits), France (17 megabits) and Canada (7 megabits).

'We have pathetic speeds compared to the rest of the world,' CWA President Larry Cohen says. 'People don't pay attention to the fact that the country that started the commercial Internet is falling woefully behind.'

Makes my old dial up days seem like the Old West or something!

Look Away, Kids

No shit! What's your blog's rating?

FWIW, my work blog is PG-13, due to some salty defendant language and "crack" references!

In Which We Beat Mexico - Again!

Yesterday, the US and Mexico played in the final of the Gold Cup in Chicago in what was, for all the intensity of the rivalry, the first win-it-or-else match between the two since Korea 2002. Mexico withstood various first-half assaults, thanks to some brilliant goalkeeping, then snagged the lead before halftime. The US came back in the second half to snag an equalizer and then a stunning winner from Benny Feilhaber:



I was going to hunt for an English-language clip, but that truly is a golazo and I appreciate the enthusiasm. Mexican coach Hugo Sanchez (he of the dejected look and the pink shirt) still trots out the "sometimes the better team didn't win" meme, but fewer and fewer people are believing. This was a close game, hard fought, and fairly clean. A classic final.

It doesn't get any easier for the US - a very different team heads off for the Copa America (South America's regional championship - the US and Mexico are invited to fill the field), starting with a match against mighty Argentina on Thursday. Meanwhile, the U-20 men start youth World Cup play on Saturday in Canada. Coverage on GolTV and ESPNU for those games - as they say, check your local listings.

One of the State's Lesser Sons

Today's Charleston Daily Mail, prompted apparently by our recent pair of federal death verdicts in Charleston, has a lengthy story about Harry Powers, a West Virginia serial killer who was executed at Moundsville in 1932. Powers, dubbed the "Bluebeard of Quiet Dell," was tried and convicted of killing five people at his home outside of Clarksburg and was suspected of involvement in as many as 50 murders (he apparently confessed to several more on his death bed).

Powers didn't exactly pick up stray victims off the street. He sought victims in 1930s-era personal ads in national magazines. The victims of whom he was convicted of killing came from Illinois and Massachusetts. At his home, Powers had a room in a cellar that served as a cell/torture chamber for his victims - there he allegedly gassed them and taunted them with food hung above their heads. Predictably, a media circus surrounded his trial:

His trial in December of 1931 generated so much interest from reporters and from the general public that it had to be moved from the Clarksburg courthouse to Moore's Opera House, the only place in the city with an auditorium large enough to hold the crowd.

Powers, lawyers, the judge and jury sat on the stage.

And his hanging:

It might have been one of the first media circuses the state had ever seen. According to an article in the Clarksburg newspaper, a throng of 40 people stood outside the penitentiary, pushing and shoving their way to the front, even though the gallows weren't visible from outside the prison walls.

'Moundsville had taken on a holiday festive appearance in preparation for the execution of the man whose crimes had startled the world,' the story said. 'Outside the prison, a crowd gathered along the curbs. Automobiles were lined up for blocks. Inside, state officials, prison officials, doctors, policemen, even one of the jurors who convicted the man, gathered to await the summons that would take them to the dingy death house in a remote corner of the prison grounds.'

Powers's legacy, if not his name, lives on:

Two decades later, in 1953, his fate was sealed as a permanent part of serial killer lore.

That year, author Davis Grubb released his best-selling book, 'The Night of the Hunter,' which later became a blockbuster movie. The story was about the fictional Harry Powell, who lured women and then murdered him.

It was based on Harry Powers.

That's one bit of our history of which I was not aware.

WWJD? Hard Time, Apparently

Today, among many other big rulings, the Supreme Court held 5-4 that taxpayers lack the standing to challenge some of Duhbya's faith-based initiative programs. In short, the Court declined to extend the one exception to the general doctrine that taxpayers lack standing to challenge governmental uses of their tax moneys beyond programs specifically authorized by Congress. The organizational/prayer meetings at issue in the case were funded out of a generalized executive branch (Dick Cheney need not apply) slush fund.

What that means is that it's unlikely that, on the federal level at least, anything will change before 2009. Once a new President is in office, will s/he be inclined to continue these faith-based initiatives? What about faith-based prison programs that, at least initially, appear to be working? Lots of people go to prison, find Jesus/Allah/L. Ron Hubbard and turn their lives around because of it. Should the state give them a push? I don't think so, but I'm a hard liner on those kinds of things. A new President, with more pressing problems to address, might not care to rock the boat.

Nice Pants! - Finale (?)

The infamous lost pants trial that I've previously mentioned has come to an end. The trial judge (the plaintiff/administrative judge/loon wisely waived his right to a jury trial) ruled against the original owner of the erstwhile trousers. The judge's order hints that the plaintiff may not be able to simply walk away and lick his wounds - the possibility of the loser paying the defendants' legal fees lurks.

Album of the Day

You Go Now, by Chroma Key (2000): I don't have a lot more to say about this disc than I said in the Ground and Sky review four years ago, except to say that as my tastes have broadened I've come to enjoy this disc more and more.

And, with that, the annual A to Z trip through my CD collection comes to an end. This year, that journey covered 688 albums spread over 769 discs, with a total running time of 29 days, 58 minutes, and 30 seconds. Amazingly enough, there were 300 albums in my collection that I hadn't listened to since last year! So, until next year . . .

Yes, I am a big enough geek to have a piece of software that keeps track of those statistics!

Beware the Sands

I've never been a huge fan of ocean swimming. Little beasties abound, not to mention larger nasties like jellyfish and sharks. Who knew it might be safer in the water rather than out? From CNN:

Waves and sharks aren't the only dangers at the beach. More than two dozen young people have been killed over the last decade when sand holes collapsed on them, report father-and-son doctors who have made warning of the risk their personal campaign.

Since 1985, at least 20 children and young adults in the United States have died in beach or backyard sand submersions. And at least eight others died in Australia, New Zealand and the United Kingdom, according to a letter from the doctors published in this week's issue of The New England Journal of Medicine.

People naturally worry about splashier threats, such as shark attacks. However, the Marons' research found there were 16 sand hole or tunnel deaths in the United States from 1990 to 2006 compared with 12 fatal shark attacks for the same period, according to University of Florida statistics.

Damn! Guess I'll stay well inland from now on.

Oh, How They Danced

It is officially summer. In recognition, as the New York Times reports, crowds of:

Druids, drummers, pagans and partygoers welcomed the sun Thursday as it rose above the prehistoric monument of Stonehenge on the longest day of the year -- the summer solstice.

You know, Stone'enge. Where the banshees live (and they do live well)!

Happy Solstice, everybody.

Album of the Day

Yoshimi Battles the Plastic Robots, by The Flaming Lips (2002): When this album first came out, I was vaguely aware of the hype about it that Brandon describes in the Ground & Sky review. Having never heard the band, I wasn't particularly compelled to pick it up. Lots of albums that don't interest me get lots of praise, after all. But, last year, for some reason, I saw the album in Borders and decided to pick it up. Five years on, it's hard for me to join in Brandon's assessment that it's overrated, but I enjoy it a great deal. Maybe it's because the band uses some of the loop and noise generation technology I do (much more skillfully than I, let me say) and that's a hook to get me in. I dunno. I suppose I enjoy the "overproduced, nebulous blur" that Brandon laments.

UPDATE: As Jackie points out, the name of the album is actually Yoshimi Battles the Pink Robots. The IR staffer responsible for the error has been flogged and sent to Gitmo.

Happy Birthday, Mountain Mama

144 years ago today - June 20, 1863 - West Virginia became the 35th State. As we pause to celebrate the birth of our little bastard state, it's worth remembering West Virginia's unique history. Two bits of that deserve mention on her birthday.

First, of course, is the whole means by which the state came to be in the first place. Long story short: Virginia seceded prior to the Civil War, the western counties didn't like that and formed a new government in Wheeling, that government eventually formed the new state of West Virginia. The unique circumstances of the state's creation - it's the only one taken wholly from another existing state without the other state's participation - has led some scholars to wonder whether the state's existence violates the Constitution.

Specifically, attorney Vasan Kesavan and law prof Michael Paulsen wrote a law review article a few years ago called "Is West Virginia Constitutional?" the California Law Review).* As they put it:

Brace yourselves for this one, Mountaineers: West Virginia might not legitimately be a State of the Union, but a mere illegal breakaway province of the Commonwealth of Virginia. In the summer of 1861, following the outbreak of the Civil War, thirty-five counties of Virginia west of the Shenandoah Valley and north of the Kanawha River met in convention in the town of Wheeling, to consider seceding from secessionist Virginia. In short order, the Wheeling convention declared itself the official, lawful, loyal government of Virginia and organized a proposed new State of (what would come to be called) West Virginia. Then, in what must certainly rank as one of the great constitutional legal fictions of all time, the legislature of Virginia (at Wheeling) and the proposed government of the new State of West Virginia (at Wheeling), with the approval of Congress, agreed to the creation of a new State of West Virginia (at Wheeling), thereby purporting to satisfy the requirements of Article IV, Section 3 of the Constitution for admission of new States 'formed or erected within the Jurisdiction of any other State.'

Could they do that? In this Article, we take on the amazingly complicated question of whether West Virginia is lawfully a State of the United States, a question whose answer is more than a quaint historical curiosity, but is surprisingly rich in its implications for constitutional interpretation today. The constitutionality (or not) of West Virginia is a parable with potentially huge lessons to teach about constitutional 'formalism'--strict adherence to the clear structural commands of the Constitution, even when they seem inconvenient or even nonsensical--and about 'textualism'--legal interpretation governed by the meaning the language (and punctuation) a legal text would have had to a fully informed speaker or reader at the time of its adoption--as a methodology of constitutional interpretation.

The question, basically, is whether the US-recognized government of Virginia - the one in Wheeling post-secession, not the one in Richmond - could give consent for the creation of a new state within its borders. Via some impressive use of legal fictions, that's exactly what happened. So what's the bottom line - are we on our way back into a shotgun wedding with the Old Dominion? Thankfully not:

We took West Virginia as our test case in part because of its surprising difficulty and the diversity of methodological issues it presents concerning constitutional interpretation. We took it as our test case in part also because it is just plain fun--a nifty historical and linguistic curiosity. We hope to leave West Virginia better off than we found it--constitutionally, that is. For now, after 139 [now 144] years, we hope we can finally extinguish a long-smoldering, but surely not burning, historical constitutional issue. West Virginians may rest secure in the knowledge that their State is not unconstitutional.

Probably.

The other nifty bit of history to be commemorated today is West Virginia's history of moving capitols. As this article (and associated whopping huge PDF file of the actual page from today's paper) from the Charleston Gazette shows, the capitol has changed locations six times over the state's history, bouncing back and forth between Wheeling and Charleston:

Charleston wasn’t in the plans in the beginning. Wheeling, the largest city in western Virginia, was originally named capital of the new state and the Capitol was temporary located in a building on the campus of Linsly Institute there.

Somehow southern lawmakers gained support to move the capital more toward the center of the state in 1870, locating in Charleston and creating the capital city’s Capitol Street, the street where the Capitol was located.

But that was short-lived. By 1875 the state’s seat of government returned to Wheeling and an architecturally different structure was completed and opened as the new Capitol. After several years, though, lawmakers decided it was easier to get to Charleston from around the double-panhandled state than to the Northern Panhandle.

As they say, history is geography.

So, anyway, happy birthday West Virginia! Many happy returns (jedi jawa sends his regards as well).

* It's not available online, sadly, as it is a fascinating (if lengthy) article. For those with the resources, the full cite is Kesavan, Vasan and Michael Stokes Paulsen, "Is West Virginia Constitutional?", 90 Cal. L. Rev. 291 (2002).

Album of the Day

XII (aka The Virgin Album), by Twelfth Night (1986): After several years of toil in the shadows of fellow neo-prog pioneers Marillion and IQ, Twelfth Night finally broke through on a major label with this album (hence the subtitle). Along the way, they swapped lead singers and moved away from the more overtly proggy stuff to a sort of prog-tinged power pop. It's not really my thing, but I admit that the 11+minute closer "Take a Look" is a very cool anthemic tune.

Please, 'Lexi, Just Shut Up

LA Galaxy manager and all-around US soccer big mouth Alexi Lalas is as it again. He's got a habit of making bold statements, but this one sort of takes the cake. Tasked with defending the impending arrival of David Beckham from charges that Becks is coming to LA and Major League Soccer to simply cash a big pay check on his way out to pasture, Lexi has, well, gone off the deep end:

'The fact that a segment of the world worships an inferior product in the Premiership is their business,' Lalas said in an interview with The Guardian published Tuesday.

'In England, our league is considered second class, but I honestly believe if you took a helicopter and grabbed a bunch of MLS players and took them to the perceived best league in the world they wouldn't miss a beat and the fans wouldn't notice any drop in quality.'

Look, I'll be among the first to defend MLS against the haters. The quality of play has improved immensely since the league's inception, but it's not at the level of the Premiership or any other top European league. Keep in mind, however, that (a) it's only 10 years old and (b) MLS, like other American leagues, values parity over dynasty-building, so whereas the strong of the Premiership get stronger every year, the deck gets shuffled in MLS every season. That, perhaps, is one reason why MLS clubs have such a hard time in international competitions.

What's even odder about Lalas's bold proclamation is that it comes at the same time that he is pumping up Beckham's value:'

There will be an interest in Beckham over here that exceeds anything everything else,' Lalas said. 'The US will never have dealt with an athlete who has had this kind of international impact.

'Tiger Woods has that international appeal but with due respect to Woods and Michael Jordan, David Beckham is at an entirely different level.'

So which is it? You do neither the league nor yourself any favors by swinging wildly from one hyperbole to another. Just chill, will ya'?

For the record, my scorn is aimed at this 'Lexi, not this one.

Spiderman . . . Irving Spiderman

The Film Geek is depressed because he's the Green Lantern. He's not a fan. What superhero are you? Find out here. As for me:
Your results:
You are Spider-Man

Spider-Man		85%
Superman		55%
Robin		53%
The Flash		50%
Green Lantern		50%
Hulk		45%
Catwoman		40%
Iron Man		40%
Batman		35%
Wonder Woman		33%
Supergirl		33%

You are intelligent, witty,
a bit geeky and have great
power and responsibility.



Click here to take the "Which Superhero are you?" quiz...

That's cool, if only because Mike Keneally's "I Can't Stop" sounds a lot like the old Spiderman TV show theme.

NOTE: I have no idea why this format is so fucked up - apparently my Spidey Sense doesn't extend to blog formating.

PS: The girlfriend is also Spiderman -I'm not sure what that means!

Albums of the Day

Word of Mouth, by Jaco Pastorious (1981) and Mike + the Mechanics (1991): Amazingly enough, these are the only two studio non-compilation albums I own that have the same title. Separated by 10 years, they're separated even further in terms of style and quality. The M+M album is one of the lesser works of Mike Rutherford's outside of Genesis project. I don't think this one even made a dent in terms of radio play, which makes sense, as only the opening track leaves any real impact. By contrast, the Jaco disc (his second, IIRC) is quite good. It highlights his compositional and arranging skills, in addition to his phenomenal bass work. And it includes "Liberty City," a favorite of mine.

Thanks, Eddie

Before last night's Major League Soccer game, Real Salt Lake defender Eddie Pope announced he was retiring at the end of the season. Eddie has been, for me, the poster boy for the good that MLS has done for the game in the United States. He was the first player drafted in 1996 by DC United and capped a stellar rookie season with an overtime goal at water-logged Foxboro to win DC's first MLS Cup. There would be more cups with DC, three World Cups with the US National Team, and many other accolades over the years, as Eddie moved from DC to New York (sadly) and then RSL. He never played overseas and is the perfect example of a home grown talent.

Thanks, Eddie, for all you've done.

On Politics and Prosecutions

In North Carolina, the state bar proceedings against Duke rape case prosecutor Mike Nifong have been going on this week. Yesterday, some of Nifong's justifications for failing to turn over exculpatory evidence came to light. They are, shall we say, far from persuasive:

The district attorney in charge of the Duke University lacrosse rape case told the North Carolina State Bar he failed to turn over evidence favoring the defense because he was busy campaigning for office, a disciplinary panel was told Thursday.

Durham County District Attorney Mike Nifong told bar investigators that as he faced "an unprecedented number of challengers" in his first election campaign, 'I was not always able to give the case my full attention.'

Nifong cited his campaign in a letter to the bar as one of several reasons that 'may possibly have contributed to my inadvertent failure to provide the evidence in question.' Portions of the letter were read aloud at the third day of a trial in Raleigh that will determine if Nifong will lose his license to practice law.

Quite apart from the ultimate issue of Nifong's lawyerly future, this highlights a great danger of making the prosecuting attorney an elected officer. It's one things when Congressmen neglect their legislative roles to campaign - it probably keeps them from doing further damage. But it's a far cry from politicking cutting into the time you have to impact the lives of countless defendants.

Politics and law enforcement should be separate spheres, as much as practical.

UPDATE: From Keith Olberman's show tonight, I learn that Nifong resigned during his testimony this afternoon. Don't let the door hit ya' on the ass on the way out, Mike.

Album of the Day

Wind and Wuthering, by Genesis (1976): Depending on your perspective, this album represents the last Genesis album worth a damn or simply the beginning of the end, as it's the last album with guitarist Steve Hackett. Honestly, I tend to fall into the latter camp. This was hardly the last album to contain overtly prog material and it contains what could be the sign of things to come, the ballad "You're Own Special Way." It's also a bit of an odd album, as it contains not one but two instrumentals. Finally, it has one of my favorite all-time Hackett tunes, "Blood on the Rooftops," which he's recently revived in concert.

Habeas Isn't Dead, It Just Smells Funny

Earlier this week, the Fourth Circuit handed down a decision that dealt a major blow to the Bush administration's "War on Terra" and gave some hope that the Constitution isn't completely dead yet. The court held that the Government can't hold a non-citizen who was legally in the United States indefinitely simply by Duhbya labeling him an "enemy combatant." Over at Salon, Glenn Greenwald has a much more detailed analysis. Hopefully, the Supremes (or the full Fourth en banc) will let this decision stand.

More on Paris

The Paris Hilton saga continues. The latest bit of news is that an analysis of LA County DUI cases by the Los Angeles Times shows that, in fact, Paris may be getting a harsher sentence than other similarly situated defendants:

The Times analyzed 2 million jail releases and found 1,500 cases since July 2002 that — like Hilton's — involved defendants who had been arrested for drunk driving and later sentenced to jail after a probation violation or driving without a license.

Had Hilton left jail for good after four days, her stint behind bars would have been similar to those served by 60% of those inmates.

That, of course, doesn't mean a whole lot, on it's own. It's hard to single out one case and say, based on a simple statistical analysis, the sentence imposed in that case is harsher than usual. Why? Because each case is unique. As Mike over at Crime & Federalism explains, the judge's job is to sentence Paris specifically, not some generic defendant:

If Hilton had been a single mom who lived paycheck-to-paycheck and who was on her way to work when driving on a revoked license, would the judge have given her a lower sentence? I sure as hell would hope so.

If Hilton had been on her way to visit a dying friend in the hospital, would the judge have given her a lighter sentence? Again, we would hope so.

If Hilton had been so poor that going to jail for three weeks might have meant she would be unable to pay her rent and thus would be evicted from her apartment, would the judge have given her a lighter sentence? I think we can all agree on the correct answer.

But Hilton was not driving because she had to.

This is why we give judges discretion as sentencing, at least in some ways, in most cases.

Finally, over at Slate Christopher Hitchens implies that Paris got treated more harshly because of her celebrity and compares the media feeding frenzy about Paris to "whatever horrible, buried, vicarious impulse underlies kiddie porn and child abuse." Hyperbole aside, Hitchens misses a huge aspect of Paris's existence in wagging his finger at the media - she asked for it! Publicity has been Paris's life blood for years. I'm fairly certain that if we all just ignored her for a while, she'd disappear into thin air. You can't make a name for yourself as a professional celebrity and then complain when the same public watches you go nuts.

Shifting the Civil Rights Focus

Today's New York Times has an article about the shifting focus of civil rights prosecutions in the Bush administration. In brief, Duhbya's troops have invested much more time in religious civil rights cases as opposed to the more traditional focus on racial issues. While I share some of the concerns of those in the article that this is more about a pro-fundy agenda rather than neutral application of civil rights law, this is exactly the kind of thing that plays into the office of United States Attorney being a "political" appointment. It's proper for a president to conclude that one set of issues should take priority within the Department of Justice and marshal his forces accordingly.

Nice Pants! - Update

Remember the idiot DC administrative judge I blogged about a while back who is suing his dry cleaners for millions of dollars because they (allegedly) lost a pair of pants? Well, trial has begun and "judge" Pearson continues to cover himself with jacknuttery:

That was before Pearson, an administrative law judge, broke down while testifying about the emotional pain of having the cleaners give him the wrong pants. It was before an 89-year-old woman in a wheelchair told of being chased out of the cleaners by an angry owner. And it was before she compared the owners of Custom Cleaners in open court to Nazis.

* * *

'Never before in recorded history have a group of defendants engaged in such misleading and unfair business practices,' Pearson said in his opening statement.

Oy. Sometimes, a parking offense really is just a parking offense, if you know what I mean.

It gets worse:

Judge Judith Bartnoff went to remarkable lengths to try to keep Pearson moving along while disabusing him of the notion that he represented either the tens of thousands of people who have used Custom Cleaners or the half million people in Washington who might theoretically be at risk of being dissatisfied with the shop's service.

From the start, Pearson kept referring to himself as 'we,' as if he were representing everyone in town. Bartnoff was having none of it: 'Mr. Pearson, you are not a 'we.' You are an 'I.' '

I'm surprised the judge hasn't just ordered her bailiff to kick Pearson in the butt and be done with it.

Album of the Day

What Means Solid, Traveller?, by David Torn (1995): When I picked this album up out of the cutout bin of the local CD shop it was because (a) I vaguely recognized the name from some kind of connection with Robert Fripp and (b) it was cheap. It's one of the oddest things I own. A primarily solo album, Torn does things with a guitar that you wouldn't think possible (in the liner notes he writes "There are no synthesizers on this recording, so if ya don't recognize a sound, just assume it's a guitar, okay?"). He also makes an extensive use of looping techniques. Thus, it's appropriate that Torn created a disc full of loops for Sony Media that is on my want list.

I'm In Thrall to the Speeerit!

I've been in the studio the past couple of days working on a new tune. Yesterday, I got to a stopping point that slowly, this afternoon, turned into a brick wall. After a bit of cursing, pacing, and drinking (Diet Coke - don't worry), I had one of those "eureka!" moments and quickly progressed into the meat of this track. All of a sudden I'm whipping up loops from scratch and laying down keyboard parts like I kind of know what I'm doing. At least I didn't start speaking in tongues!

It's amazing how those kinds of breakthroughs can work. Reminds me of a short story I blogged about last year that argued, essentially, that artists don't actually create anything, they just discover what's out there in the ether. Maybe there's something to that.

Album of the Day

Waka/Jawaka, by Frank Zappa (1972): This is the first of two big band "jazz" albums Zappa did while convalescing after sustaining a broken leg during a concert in England. While I prefer the second (The Grand Wazoo) as a whole, this disc has plenty going for it. The first minute or so of "Big Swifty" is some of my favorite Zappa music. The slide guitar solo in the end of "It Just Might Be a One Shot Deal" is great and (to my knowledge) unique in the Zappa catalog. Finally, the closing title track is great throughout. Get 'em both - you know you wanna'.

Someone Asked - They Shouldn't Have Told

This is so hard to believe that I would have thought it the stuff of comic science fiction. As late as 1994, the Pentagon was developing a weapon designed to turn the other side gay. I shit you not:

As part of a military effort to develop non-lethal weapons, the proposal suggested, 'One distasteful but completely non-lethal example would be strong aphrodisiacs, especially if the chemical also caused homosexual behavior.'

The documents show the Air Force lab asked for $7.5 million to develop such a chemical weapon.

'The Ohio Air Force lab proposed that a bomb be developed that contained a chemical that would cause enemy soldiers to become gay, and to have their units break down because all their soldiers became irresistably attractive to one another,' Hammond said after reviewing the documents.

What's next - a killer joke?

Cash Diamonds

We've all heard about blood diamonds, but over at Slate, there's an article that traces the history of diamond engagement rings. Not surprisingly, the tradition of guys giving gals large hunks of glass-looking material isn't really all that traditional at all:

In 1919, De Beers experienced a drop in diamond sales that lasted for two decades. So in the 1930s it turned to the firm N.W. Ayer to devise a national advertising campaign—still relatively rare at the time—to promote its diamonds. Ayer convinced Hollywood actresses to wear diamond rings in public, and, according to Edward Jay Epstein in The Rise and Fall of the Diamond, encouraged fashion designers to discuss the new "trend" toward diamond rings. Between 1938 and 1941, diamond sales went up 55 percent. By 1945 an average bride, one source reported, wore 'a brilliant diamond engagement ring and a wedding ring to match in design.' The capstone to it all came in 1947, when Frances Gerety—a female copywriter, who, as it happened, never married—wrote the line 'A Diamond Is Forever.' The company blazoned it over the image of happy young newlyweds on their honeymoon. The sale of diamond engagement rings continued to rise in the 1950s, and the marriage between romance and commerce that would characterize the American wedding for the next half-century was cemented. By 1965, 80 percent of American women had diamond engagement rings. The ring had become a requisite element of betrothal—as well as a very visible demonstration of status. Along the way, the diamond industry's guidelines for the 'customary' cost of a ring doubled from one month's salary to two months' salary.

The article then goes on to argue that engagement rings also have nasty patriarchal overtones, even in modern times.

Hey - boundless capitalism and misogyny - it doesn't get more traditional that that, does it?

Album of the Day

Vigil In a Wilderness of Mirrors, by Fish (1990): This was Fish's first album after leaving Marillion to "go solo in game." Many people believe it's his best. It certainly contains a lot of what became Fish fan favorites - "Vigil," "The Company," and "Family Business." There's also Fish's equivalent of Gabriel's "Solsbury Hill," a swipe at his old band mates, "View From the Hill." Of course, given Fish's contentious split from Marillion, it's not surprising that the vitriol extended to some unflattering album artwork, too (not so artfully excised from future pressings!).

Harry Potter and the Vanishing Profit Margin

The girlfriend works for a big book chain and is therefore in countdown mode to the publishing event of the year (decade? century? millennium?!?) - the July release of the final installment in the Harry Potter saga, Harry Potter and the Deathly Hallows. One would think that such a huge seller - Amazon reports 1 million pre-orders, Barnes & Noble 500k - would be a license for the book sellers to print money. One would be wrong. As this Reuters report explains, the big sellers are offering such staggering discounts on the book that they will make little, if any, profit on the transaction:

'Everywhere you go there is huge, ridiculous discounting by the chains,' said Graham Marks, children's editor at the British-based trade magazine Publishing News.

'They are literally not going to make one penny out of the book. It is stupid -- just throwing money away ... The world has gone mad.'

Online retailer Amazon.com and Wal-Mart Stores Inc. have slashed nearly 50 percent off the book's $34.99 list price, forcing many independent booksellers to follow suit to stay competitive.

Barnes & Noble Inc. and Borders Group Inc., the world's largest booksellers, are selling it at 40 percent off.

It's so bad that some independent bookstores won't even sell the tome, as they can't afford the discounts to compete with the chains.

So what's the play? Why would companies supposedly in business to make money be giving stuff away? They hope customers will buy other things and/or sign up for customer loyalty cards (Borders's is free, people!) and generate future business. Will it work? Who knows. If the American auto industry's similar pattern of offering gobs of cash back and selling new cars below value is any indication, it can't work for very long.

Regardless of profit, let's hope that Harry's saga has a more satisfying ending than The Sopranos.

Album of the Day

USA, by King Crimson (1975): In the liner notes for Half Alive in Hollywood, Mike Keneally talks of how over the course of the disc Bryan Beller's bass rises to the top of the sonic heap, displacing Mike's guitar in its wake. Beller must have been channeling John Wetton during Crim's 1974 tour of the US, as captured on this disc, because Wetton absolutely rules these tunes. His bass is punchy, growly, and constantly demands to be listened to. His partnership with drummer Bill Bruford was perhaps at its zenith here, as evidenced by their fantastic interaction on the improv "Asbury Park." Fripp and Cross are just along for the ride.

As Joe puts it in the Ground and Sky review, "[t]he material on here, pardon the technical term, kicks major ass." Indeed.

On Scooter and His 30 Months

I've held off talking about Scooter Libby's sentencing earlier this week, partly because there's been so much blather in the blogosphere about it already, and partly because I hadn't come across a good description of the Guideline machinations that resulted in Scooter's advisory range being 30-37 months. Thankfully, Edward Lazarus over at FindLaw does just that today.

As he explains, the Guideline for perjury requires a cross reference to the Guideline for the crime that was subject of the underlying investigation. For that reason, Scooter's Guideline range bumped up based on the crime being investigated - disclosure of a covert CIA agent's identity. Keep in mind that the relevant issue is not whether that crime was committed (or that Scooter committed it), but that it was the subject of the investigation that was obstructed.

As Lazarus points out, cross references are the bread and butter of the Guidelines. The felon in possession Guideline, for example, cross references to all kinds of different things depending on what the defendant allegedly did with the gun. I've had a client sentenced as if he was convicted of attempted murder, even though not jury returned that verdict. Thus, it's not unusual or devious for the Government in Scooter's case to increase his sentence in such a manner.

Another point Lazarus makes is that, in the end, Scooter's sentence could have justifiably been lower, but it's not unreasonably long. He performs the kind of "unreasonableness" analysis that the Circuit Courts should be performing in a post-Booker world. He might have imposed a lower sentence, but he can't say that the 30 months Judge Walton gave Scooter is per se too long.

And speaking of Judge Walton, revel in this bit of irony about this Duhbya appointee:

That Walton would put the Bush administration in an uncomfortable position of having to consider a politically charged pardon for Libby is highly ironic: The 58-year-old jurist was one of the first appointments that Bush made to the federal bench in October 2001, a prime example of a new law-and-order mentality that the administration wanted to infuse in the courts.

'Bush wanted people to know that 'I appoint tough guys to the bench,' ' said Roscoe Howard, the U.S. attorney in Washington during Bush's first term. 'They appointed him just for what he did to Scooter; they were just not expecting it to happen to Scooter.' ...

The 2 1/2 year sentence was within the range of guidelines that the Bush administration has created and espoused for federal judges to follow to ensure that defendants are punished the same regardless of the judge hearing their case. The administration and Republican members of Congress have admonished other judges who give defendants a break under the guidelines — as lawyers for Libby sought Tuesday when they asked Walton to give him probation only.

That bolded quote captures a lot of my feeling about Scooter's sentence. If I were to make a list of unjust sentences imposed in federal courts, Scooter's would be a long way down the list, precisely because of the kind of "law and order" lock 'em up forever mentality to which he now falls prey.

My other thoughts are neatly encapsulated in this Orin Kerr post over at Volokh.

Green Guitars - Not Just for Hippie Folk Singers Anymore

Today's New York Times has an interesting article about a coalition of guitar makers trying to find a way to manage the kind of exotic timber resources that make good instruments. The companies - Martin, Taylor, Fender, and Gibson - have joined up with Greenpeace to try and create sustainable resources from which they can build guitars. As the current head of the Martin clan puts it:

'If I use up all the good wood, I’m out of business,' Mr. Martin said. 'I have a 2-year-old daughter, Claire Frances Martin, and she can be the seventh generation C. F. Martin. I want her to be able to get materials she’ll need, just as my ancestors and I have over the past 174 years.'

That goes to show that enlightened self interest is what will save the environment. Nothing else.

And You Think Your Marriage Sucks!

It's not as bad as this:

A Chinese couple in their 80s who only communicate via terse notes are embroiled in a courtroom battle over control of their household finances.

Despite being married for more than 50 years, the couple's relationship has never been good and they have not spoken to each other for several years.

The irony, of course, is that they're not asking the court for a divorce, but for help maintaining their marriage, such as it is.

Album of the Day

The Universe Will Provide, by Mike Keneally & the Metropole Orkest (2004): What happens when the hugely talented Keneally is given an entire modern orchestra to work with? Good stuff, man. Good stuff. The Metropole, from the Netherlands, rips through nearly an hour's worth of material, with Mike lending his musical skills on guitar and electric piano. It's all very "modern" without being inaccessible. I'd love to hear a drum & bugle corps work this up for a show - there's even a built in percussion feature in "When Drums Dream!"

Death and the Petitioner

One of my jobs at work is to keep track of pending Supreme Court cases so that the office is aware of breaking issues and won't be caught flat footed if something good happens. Don't laugh, it happens! This term, at the top of that list are two cases that will, hopefully, explain to us mortals exactly what sentencing should look like in a post-Booker world. One problem - the defendant/petitioner in one of those cases, Mario Claiborne, is now dead. Killed during flight from a grand theft auto (he was not the robber, for what it's worth). As a result, his case has been dismissed by the Court as moot. As a consequence, it appears that the lower appellate court decision against Claiborne has also been vacated. In much the same way that Ken Lay prevailed on appeal by dying, Claiborne's untimely snuffing at least means he went out a winner.

Should the Court have been so quick to dismiss? After all, the issues in Claiborne's case are vitally important to the day-to-day functioning of the federal courts and will have an impact on thousands of defendants. Over at FindLaw, Michael Dorf argues that the Court's standing jurisprudence is in conflict with it's role as a "constitutional court" rather than an error correcting court and that jurisprudence should be reconsidered. He may be right.

Gold Cup Fever - Contract It!

With the World Cup a year distant, international soccer fans this summer are focusing on regional championships. The CONCACAF region, of which the United States is a member, holds its championship, the Gold Cup, starting tomorrow*, in various venues across the US. Ives Galarcep over at ESPNSoccernet has a group-by-group preview. If all goes as planned, the US and Mexico will meet up in Chicago on June 24 for the final. Which becomes just another chance for us to continue our domination of El Tri in recent years.

The US kicks off play in Group B against Guatemala tomorrow at 9pm EST on Fox Soccer Channel, with other group matches on June 9 (Trinidad & Tobago) and June 12 (El Salvador).

* UPDATE: Whoops! Looks like action kicked off today in Group A. My bad.

Album of the Day

A Trick of the Tail, by Genesis (1976): I picked up a cheap poster of the cover art for Trick off of Amazon a while back. I finally got around to taking it to get framed this weekend, which, unfortunately, is not so cheap. In the process, the girlfriend asked what the big deal was - the artwork wasn't very good, after all. My answer was that it was because of what it represented, one of my favorite Genesis albums. Why is that? Just about everything on this album works and works really well and there are several bits that are unique in the Genesis catalog - the spooky Mellotron & synth coda to "Entangled," the extended piano work in "Mad Man Moon," not to mention the thumping instrumental closer "Los Endos." Besides, it's the only album I own that actually deals with appellate practice:

If they try to hold me for trial
I'll stay out of jail by paying my bail
And after I'll go to the court of appeal saying
'You've done me wrong, it's the same old song forever.'

All that and a kick ass synth solo to boot!

Score One for Indecency!

Yesterday, the Second Circuit Court of Appeals handed the major TV networks a big victory in their ongoing battle with the FCC over dirty words. Particularly, "fuck" and "shit" (and variants thereof). The specific issue is what to do when a random word of curse is broadcast over the airwaves. For years, since the Pacifica case involving Carlin's seven dirty words, the FCC would not take action against a station that broadcast a stray curse word, particularly in live broadcasts. That all changed once Duhbya and his bunch got into office. The FCC revamped their regs and, overnight, pretty much every use of the word "fuck" or "shit" became per se illegal.

The networks sued, under a multitude of theories, to strike down the new regs. The court sided with the networks, ruling that the FCC screwed up under the Administrate Procedures Act by failing to properly explain and justify such a radical change in the law. Along the way, the court made mincemeat of most of the FCC's rationales for the rule. For example, in shooting down the FCC's per se rule, the court noted:

Similarly, as NBC illustrates in its brief, in recent times even the top leaders of our government have used variants of these expletives in a manner that no reasonable person would believe referenced 'sexual or excretory organs or activities.' See Br. of Intervenor NBC at 31-32 & n.3 (citing President Bush’s remark to British Prime Minister Tony Blair that the United Nations needed to 'get Syria to get Hezbollah to stop doing this shit' and Vice President Cheney’s widely-reported 'Fuck yourself' comment to Senator Patrick Leahy on the floor of the U.S. Senate).

That's at page 27 of the opinion. Although the court's holding was based on APA grounds, and the case was remanded to the FCC for further justifications, the court pretty clearly indicated that the FCC rule would fail under the First Amendment as well.

Either way, it's a nice win for those of us who don't think the only suitable TV programming is Mr. Rogers and Little House on the Prairie!

Death in WV

Last week, a jury in West Virginia returned a death penalty verdict for the first time in almost 50 years. The state did away with the death penalty in 1959, but the federal government can seek the death penalty in any state, as it has done more robustly since the current administration took office. Spurred on by our death verdicts (two co-defendants), today's Charleston Daily Mail reflects on the end of the death penalty in West Virginia. Particularly interesting is this reflection from Governor Cecil Underwood, the last executive to preside over an execution in WV:

When Cecil Underwood was first elected governor in 1956, there were four men sitting on death row.

'Three of them were executed and one I commuted,' Underwood said this week. 'He was a Clarksburg boy who sexually attacked and murdered a teenager. A doctor's report said he was hopelessly insane.'

Underwood, a Republican, couldn't recall the commuted prisoner's name. But he remembered having the inmate examined by three different medical teams in West Virginia and one out-of-state physician.

The day after he let the prisoner off the hook, Underwood said the victim's mother held a press conference to denounce the decision. Then she committed suicide.

'I got more criticism for that one than any of the other three,' Underwood said.

I think that's the great danger of capital punishment. Those most affected by the crime are unlikely to be able to divorce their rage and desire for revenge from broader issues of justice like, say, whether the condemned is batshit insane. And many politicians, wary of being branded soft on crime (or, to paraphrase Futurama, "soft on the wrongfully condemned"), don't have the stones to use their authority to grant clemency.

We, as a state, are better for not killing in the name of "the people," It's a shame the federal government doesn't respect that.

Album of the Day

Time Crunch, by Niacin (2001): Magna Carta put together several instrumental prog supergroups there for a while. Of all of them, Niacin has had the longest lifespan, IIRC. Maybe that's because instead of a guitar player out front shredding away, Niacin is powered by B3 master John Novello. The result is a little blusier and jazzier, even when ripping through up tempo flashy bits. Props for a very cool cover of "Red," proving you don't need a guitar player to rock!

It Was Forty Years Ago Last Week

I somehow managed to miss/overlook the 40th anniversary of the release of Sgt. Pepper's Lonely Hearts Club Band. For all its importance and influence, I feel a little odd about it. I don't listen to it very often and it's not even my favorite Beatles album. I couldn't quite figure out why, but maybe Aimee Mann is right and it's simply a case of burnout.

Regardless, Happy Birthday, Sarge!

I Got Some Wild Wild Life

OK, so I don't exactly live out in the middle of nowhere, but I am far enough off the beaten path that some wildlife meanders around every once in a while. One has taken up residence off my back porch, turning a drainage pipe/tube into home:

I call him Frank. At least I think there's only one (and it's a boy) - maybe I've got a whole rabbit herd on my hands!

Album of Last Friday

THRaKaTTaK, by King Crimson (1996): How can you possibly not like an album with a song titled "Mother Hold the Candle Steady While I Shave the Chicken's Lip"? If the song titles appear to have been given more creative energy than the tunes, that's how. On Crimson's tour supporting the album THRAK, the band engaged on nightly improvs, using the title track as a jumping off point. Sometimes more than once per night. A couple of years later, Fripp & crew got the bright idea to take several of these improvs and stitch them together between "THRAK" bookends to produce this album. What's in between is not for the faint of heart or, to be honest, all that interesting to my ears.