The Long Arm of Judge Pal

Today's New York Times has a fascinating article about the legacy of Indian judge Radhabinod Pal. What's interesting is not so much that Pal continues to have admirers long after his death - after all, we lawyers routinely invoke in almost reverent terms names like Marshall, Holmes, and the like. The twist is that the admirers are from Japan. Judge Pal was the only one of the 11 justices of Tokyo War Crimes Tribunal that voted to acquit the 25 Japanese officials charged with Class A war crimes (starting an aggressive war, essentially) in 1945.

That has made him a hero to Japanese nationalists who view World War II as a defensive war of liberation, rather than an act of imperial aggression. Predictably, as nationalists are wont to do, they don't appear to grasp the reasoning set forth in Pal's 1000+ page opinion:

In colonizing parts of Asia, Japan had merely aped the Western powers, he said. He rejected the charges of crimes against peace and humanity as ex post facto laws, and wrote in a long dissent that they were a 'sham employment of legal process for the satisfaction of a thirst for revenge.' While he fully acknowledged Japan’s war atrocities — including the Nanjing massacre — he said they were covered in the Class B and Class C trials.

'I would hold that each and every one of the accused must be found not guilty of each and every one of the charges in the indictment and should be acquitted of all those charges,' Judge Pal wrote of the 25 Japanese defendants, who were convicted by the rest of the justices.

In other words, Judge Pal did not approve of the actions of the Japanese in a normative sense, only that they could not legally be punished for them. Hardly the ringing endorsement the nationalists would like.

This Strange Decade

Damn, it's hard to believe it's been 10 years. 10 years ago tonight, I dragged jedi jawa to Pittsburgh (and away from the first renewal of the WVU-Marshall rivalry in decades) and the now defunct Grafiti Showcase to see Marillion, touring America in support of their album This Strange Engine. Aside from being a hell of a concert and pre-show, it was part of the historic Tour Fund tour:

Marillion are no strangers to the internet, in 1997 after the release of This Strange Engine informed their fans that they would not be able to tour North America, to support the new album due to lack of a US record deal. What happened next was an unbelievable show of dedication, love and support from the fans, many of whom are part a huge and well organized network of web sites and mailing lists, the 'Freaks' decided to start a tour fund and donations flooded in from around the world, some from as far away as Australia (even though marillion have never played there!) they managed to raise more than $60,000 US in donations and made it possible for them to complete a successful 22 date tour of North America.

10 years! I've verging into "kids, back when I was in school . . ." territory!

TWI

If you need to get this ripped for your first day of school, perhaps you need to find another vocation:

A longtime Greenbrier County kindergarten teacher was charged with driving under the influence of alcohol after wrecking her car on her way to the first day of class.

Jennifer L. Tuckwiller, 54, of Clintonville, was not injured when her car crashed at about 7:25 a.m. Tuesday on U.S. 60 near the community of Sam Black Church.

Sheriff's Deputy D.J. Vandall said in a criminal complaint that Tuckwiller blew a .215 blood alcohol level. The state limit for driving is .08.

Not saying that I could face a room full of kindergartners first thing in the morning, but still, that's pretty sloshed.

Watching the Prosecutors

Just as not all criminal defense attorneys are saints (much as it pains me to say it), not all all prosecutors are sinners (much as it pains me even more to say that). Nonetheless, there are bad apples on both sides. The bluntly titled Bad Prosecutors blog aims to keep tabs on those that wield the power of the state in the courtroom. As it's run by a pair of ex-Assistant United States Attorneys, they presumably have some insight into this sort of thing. And already, they've named their 10 worst prosecutors for the year, including such heavyweights as Mike Nifong, "Fredo" Gonzalez (although, as S. COTUS points out, Fredo never really actually prosecuted anybody in his life), and David McDade (prosecutor in the Genarlow Wilson saga).

On Senator "Wide Stance"

I'll be honest - I haven't been paying really close attention to the whole Larry Craig (R-Idaho, but probably not for long) saga. Yet another right-wing Republican yanked out of the closet because of a run in with the law. Ho-hum. But now that Craig seems reluctant to go gentle into that political good night, it's making for some interesting peripheral issues.

For one, as Glenn Greenwald points out, the right-wing noise machine is falling all over itself to call for Craig's resignation. In the process, it shows an enormous amount of homophobia-fueled hypocrisy. For one thing, the allegation that Craig is gay have been around for decades (indeed, he was involved in a 1982 House page scandal and ended up with a freeze dried family - new wife with kids - that some suspect is cover), but the commentators on the right have argued that, even if the allegations were true, it didn't matter. Is it the illegality? Not really, since the same folks didn't call for the resignation of Louisiana Congressman David Vitter after it came out that he was a client of a high-priced DC madam who had been charged with various offenses. Makes it look awfully a lot like Craig's sin, in their eyes, is not extramarital sex or minor criminal charged but his homosexuality.

Another thing is that, across the political spectrum, lots of bloggers are arguing that what Craig allegedly did either was not actually criminal or should be criminal in the first place. A New York Times blog has the round up here, while The Volokh Conspirators have some thoughts here. The latter issue is an interesting one and isn't necessarily linked to the legal proceedings against Craig.

The former, on the other hand, is pretty much a moot point given Craig's guilty plea, which he now claims was a "mistake." He's making noises that he will withdraw the plea, if possible (it's not likely - buyer's remorse isn't simply enough). For what it's worth, Craig's claim that he entered this guilty plea without legal advice is either a lie or Exhibit A of such colossal stupidity that the man is not fit to serve in the Senate. Over at TalkLeft, Last Night in Little Rock suggests that even if the plea gets withdrawn, the result won't be good for Craig:

Does he want a trial? Can he win a trial? I don't think so.

I have tried about a dozen cases involving men arrested in bathrooms or in similar situations. My record: 1 and 11. Why? These cases are hard to win because the credibility determination always favors the officer. Judges feel compelled to rid their communities of gay men trolling for anonymous sex in public bathrooms, as a 'quality of life' crime.

Of course, if Craig is about to be thrown under the political bus by the GOP, he might not have much to lose.

This is a bit like watching a car wreck, from his opening line from yesterday's press conference ("thank you all for coming out today") to his blaming of just about everybody but himself for his predicament. He admirably left out Bill Clinton in the blame fest, but Mitt Romney got there later, anyway. As long as Craig keeps fighting, people will keep watching.

The (Muffled) Executioner's Song

Today the South Florida Sun-Sentinel has a lengthy article about that state's attempts to gain more medical advise for their execution process to make it more "dignified and humane." It starts off like something from a sci-fi novel:

When an inmate receives a lethal injection in Florida, a man in a purple moon suit leans over to listen for a heartbeat and feel for a pulse as witnesses watch and wait. After a few seconds he nods, triggering an announcement that the execution has been completed.

The man is a doctor and the attire shields his identity — not just from the prisoner's family and friends, but from the American Medical Association. Its code of ethics bars members from participating in executions, as do those of the American Nurses Association, the American Society of Anesthesiologists and the Florida Medical Association.

While I can certainly understand why the AMA wouldn't want docs pushing the button to execute someone, but surely a doc will have to (at some point) sign off on a death certificate, at least. Of course, Florida wants to go beyond that:

Under Florida's proposal, the doctors could be used to insert the intravenous tubes and keep them flowing. They could also examine the inmate to determine any health issues that might hinder the execution or attach and observe the heart monitor. A doctor or pharmacist would be responsible for purchasing, maintaining and mixing the lethal chemicals.

The AMA is fairly blunt about it's position:

[Dr. Mark Levine, chairman of the AMA's Council of Ethical and Judicial Affairs]said doctors participating in executions must decide if they are 'an instrument of the state or a member of a profession dedicated to preserving and protecting life. You can't be both.'

Indeed.

The Queen of Mean Retains Her Title In Death

There were probably very few last week who mourned the passing of Leona Helmsley - the "Queen of Mean" who was convicted of tax evasion in 1988. Still, even if you don't like her, you have to admire her ability to extend her bitchy reach beyond the grave. Her will has now become public and the big winner - to the tune of $12 million - is her dog, Trouble (with a capital T that rhymes with P and that stands for Poodle!). Trouble also gets to be buried in Leona's mausoleum (for which she left $3 million for upkeep!). By contrast, two of her grandchildren were completely cut out (the others got $5 million each, with conditions) for "reasons that are known to them."

I'm generally not a fan of gross amounts of inherited wealth, anyway, and the grandkids will probably be better off without it. And, of course, Leona has the perfect right to distribute her fortune as she sees fit. Still doesn't mean she isn't a jackass, tho'.

Will He Make Krusty Solicitor General?

Now that "Fredo" Gonzalez has joined Karl "Turd Blossom" Rove in the great presidential inner sanctum in the sky, rumors are rife as to who will take his place (the current Solicitor General, Paul Clement, will be the acting AG in the interim). MSNBC has a troubling list that includes none other than convicted thief, attempted murder, and election rigger "Sideshow" Bob Terwilliger! Oh, the horror!


Hold up - my mistake - the guy on MSNBC's list is actually former Deputy AG George J. Terwilliger, who, at the very lest, has less evil-looking hair than Sideshow Bob. Wonder if he can sing all of HMS Pinafore from memory?

For the New MLS Fans

Since David Beckham arrived on these shores (he's actually playing now!), I imagine lots of new eyes have been directed towards Major League Soccer. Those folks might be a bit confused to see the Galaxy, with Becks in the lineup, getting the snot kicked out of them on a regular basis. For those folks, I offer the following public service:

The Galaxy Suck!

I say that not simply because I'm a DC United fan (although it feels awfully good), but because it's the truth. A truth you wouldn't know listening to the Galaxy spin machine. Yes, Galaxy GM Alexi Lalas called the Gals the "jewel of MLS." Yes, he's a bullshit artist - of the highest caliber. The fact is, the Galaxy right now are a train wreck, easily second fiddle in town to Chivas USA (who recently whoomped them 3-0 in the "Super Classico"). Steve Davis over at ESPNSoccernet has some analysis as to how they've gotten that way.

Keep in mind that the Galaxy are currently in 11th place in a 13-team league, ahead of only expansion Toronto FC and the terminally woeful Real Salt Lake. They've each got excuses, at least!

Opus Lives!

In West Virginia, at least. I'm happy to report that the Charleston Sunday Gazette-Mail ran this week's Opus cartoon in all its glory. As with some folks, I don't quite see what all the fuss is about. It's not as if one of the characters waved around a couple of assault rifles on stage and ordered Democratic presidential candidates to "suck" or "ride" them.

Opus Silenced?

Bloom County is one of my favorite things ever. While he's not consistently reached the same heights since, I've greatly enjoyed Berkeley Breathed's Sunday-only strips, including the current Opus. According to Breathed's website, the strips submitted for this Sunday and next have been "withheld from publication by a large number of client newspapers across the country, including Opus' host paper The Washington Post." No indication as to why.

Fortunately, the strips will be available over at Salon on the appropriate days. I'll be interested to see if they appear in the Charleston paper, as well.

In Which I Talk to a Rodent

This is a chinchilla. This is Mr. Chinchilla. Mr. C gets his little furry kicks by interviewing people. Think of him as a shorter and hairier version of Charlie Rose. Or don't. Either way, he asked questions and I answered. Check it (and his other interviews) out.

Speaking of Teenie Weenies

You just can't make this kind of stuff up:

A dwarf performer at the Edinburgh fringe festival had to be rushed to hospital after his penis got stuck to a vacuum cleaner during an act that went horribly awry.

Daniel Blackner, or "Captain Dan the Demon Dwarf", was due to perform at the Circus of Horrors at the festival known for its oddball, offbeat performances.

The main part of his act saw him appear on stage with a vacuum cleaner attached to his member through a special attachment.

The attachment broke before the performance and Blackner tried to fix it using extra-strong glue, but unfortunately only let it dry for 20 seconds instead of the 20 minutes required.

He then joined it directly to his organ. The end result? A solid attachment, laughter, mortification and ... hospitalisation.

That would be a hard act to follow!

Shameless Self Promotion

Today one of my co-workers, who not only reads the blog but actually read my bio, asked about the "frustrated writer of fiction" tag and asked read something I've written. Sadly, the "frustrated" part means I don't produce much actual written product. However, I remembered that I did actually have some fiction in the archives.

Last September, somebody on one of the forums I frequent began a flash fiction "contest" open to all comers. She'd provide a prompt, a word limit (or range), and a deadline. With those in place, I was actually able to finish some. I participated in three rounds, but got sidetracked and the thing ended shortly thereafter. But, if anybody's interested, you can check out my entries here, here, and here (all stories (c) 2006 JDB. Any reproduction prohibited. Violators will be vigorously prayed against ‘til their naughty bits fall off.).

Enjoy!

Best.Blog.Post.Title.Ever.

From Neil Richards over at Concurring Opinions:

Beware the Teenie Weenie: Social Norms and Expressive Culture

The post talks about a German article about a noted German children's book author whose would-be American publisher refused to print her book unless she removed an offensive picture. What was it?

What could possibly have got the suits at [the publisher] so hot under the overly starched collar? A painting depicting a gratuitous Roman orgy being viewed by wide-eyed 5-year olds? A massive bronze phallus gawped at by an awestruck group of pre-teens? Hardly. Apart from a tasteful nude reclining in a slightly blurred watercolor in the background, the main offending artifact was a tiny male statue and its microscopic penis.

All that leads Neil to make the point:

The teenie weenie case points up the critical role of social norms in helping to define the contours of our expressive culture. Theories of free speech focus a great deal on legal rules even though most people's decision to speak or not speak on questions is principally mediated by the concern of how others (employers, friends, strangers, book publishers) will act towards us depending upon what we say. The norms of the book publisher in this case meant that this book was not made available for the US market.

Well said. When people are outraged over "censorship," it's actually a private actor bowing to pressure from some outside source.

Regardless, "beware the teenie weenie" is good advice for everyday life, IMHO.

Brief Soccer Blurbs

Next time the national team plays in Europe, let's all just pretend it's not actually happening, OK? On brighter notes from the soccer world . . .

Last night, DC United striker Jaime Moreno became the all-time leading scorer in Major League Soccer. His 48th minute penalty kick against NYRB was the 109th goal of his MLS career, edging ahead of Real Salt Lake coach Jason Kreis. Moreno is one of the original MLS stars, spending his whole career (except for an unfortunate season in exile in NY) with DC, helping to lead the team to all four of its MLS championships, all three Supporters' Shields, and the 1996 US Open Cup title. Congrats, Jaime!

Meanwhile, today's USA Today has a nice story about Chivas USA striker Maykel Galindo. Galindo defected from Cuba in 2005 after the Cubans finished play in the Gold Cup tournament. He spent the 2005 season with the Seattle Sounders of the USL before breaking his nose in 2006, ironically, in a game against Chivas USA. He moved on to the Los Angeles squad this year and made a big splash, becoming the team's leading scorer.

What We Read

There have been two recent studies on the reading habits of Americans that came out in the past week or so.

One painted a fairly bleak picture of American readers:

One in four adults say they read no books at all in the past year, according to an Associated Press-Ipsos poll released Tuesday. Of those who did read, women and seniors were most avid, and religious works and popular fiction were the top choices.

The survey reveals a nation whose book readers, on the whole, can hardly be called ravenous. The typical person claimed to have read four books in the last year -- half read more and half read fewer. Excluding those who hadn't read any, the usual number read was seven.

While some have used those numbers to portray Americans as a bunch of slack-jawed morons, it overlooks what exactly was sampled - people reading books. I read. A lot. At work and at home. I read cases, blogs, law review articles, magazines, newspapers, short fiction, etc. But rarely do a read what most people think of as a "book" (a novel or single topic non-fiction tome). Am I underread? It doesn't feel like it.

I will say, at least, that the girlfriend reads more than enough for the both of us, statistically speaking. She reads more books in a month than I have hot dinners!

The other study focused on what kind of people do the most reading, concluding that liberals tend to read more than conservatives:

The AP-Ipsos poll found 22 percent of liberals and moderates said they had not read a book within the past year, compared with 34 percent of conservatives.

Among those who had read at least one book, liberals typically read nine books in the year, with half reading more than that and half less. Conservatives typically read eight, moderates five.

By slightly wider margins, Democrats tended to read more books than Republicans and independents. There were no differences by political party in the percentage of those who said they had not read at least one book.

Given the survey, the spin was inevitable. Pat Schroeder, former Democratic Congresswoman from Colorado, said that the "Karl Roves of the world" have created a generation who wanted short simple slogans rather than in depth analysis, while liberals

can't say anything in less than paragraphs. We really want the whole picture, want to peel the onion.

A White House spokesman responded,

Obfuscation usually requires a lot more words than if you simply focus on fundamental principles, so I'm not at all surprised by the loquaciousness of liberals.

Zing! Somebody should collect these witticisms and write a book about them!

More High-Tech Goodies for Big Brother

Now that the Government is on the way towards monitoring drug use via waste water, how can we possibly incarcerate all those new criminals? With the next generation of electronic monitoring, of course. Such a system is already in the works in Wyoming:

Equipped with a global positioning unit and a cell phone, the TrackerPal is a little larger than a pack of cigarettes, uses detachable, rechargeable battery packs, and is attached with a custom tool.

Police can use the TrackerPal's cell phone to speak with offenders.

Tidwell said the device differs from older electronic monitoring anklets, which allowed offenders to stay within a few yards of a fixed base station, typically located in their homes.

With the latest generation of equipment, probation or parole officers can set up an exclusion zone where the wearer is not allowed, such as a school or park, in the case of a registered sex offender.

Or, they may be allowed only at home, work and the road between the two places, he said.

You gotta a law enforcement tool with "Pal" in the name.* While the theory behind this system makes sense - it provides more security that will allow some folks to serve home confinement sentences rather than terms of incarceration - I'm skeptical that it will work out that way. For example, one mayor says:

This would help a lot of the 'meth moms' that we're giving those massive jail sentences of 10 or 15 years to,

No it won't. People currently getting multiple years in prison are not going to get home confinement instead. Some folks who get short jail sentence might benefit, but I'm afraid that the increased surveillance tech will become a tool to further nit pick the lives of not-yet-convicted folks on bond or post-sentence folks on parole/supervised release.

I'm all for developing alternatives to incarceration, I'm just not enthused that fewer incarcerations will actually come to pass.

* Along the same lines, the Wyoming company pitching these devices is called Freedom Fighters. As George Carlin pondered:

Well, if crime fighters fight crime and fire fighters fight fire, what do freedom fighters fight? They never mention that part to us, do they?

No, they don't.

Purple Mountains Rubble

One of the most contentious issues in the coalfields of West Virginia and Kentucky over the last few years has been mountaintop removal - wherein coal companies blow off the tops of mountains to more easily, economically, and (to be fair) safely extract the coal within. In addition to leveling the landscape, the process fills in valleys and streams - all those mountain tops gotta' go somewhere, after all. For years, coal companies, environmental activists, and the Army Corps of Engineers (which controls permits to do the valley filling) have wrangled in federal court over specific mine sites.

Not surprisingly, BushCo is riding to the rescue. In a payoff to its big money coal donors, the administration - not content with appointing a pro-company goon to oversee mining safety - is revising the regs covering mountaintop removal to resolve the legal wrangling in the favor of the coal companies. Who shepherded the proposal through?

The early stages of the revision process were supported by J. Stephen Griles, a former industry lobbyist who was the deputy interior secretary from 2001 to 2004. Mr. Griles had been deputy director of the Office of Surface Mining in the Reagan administration and is knowledgeable about the issues and generally supports the industry.

In June, Mr. Griles was sentenced to 10 months in prison and three years’ probation for lying to a Senate committee about his ties to Jack Abramoff, the lobbyist at the heart of a corruption scandal who is now in prison.

Seems fitting, doesn't it?

Big Brother Hits the Sewers

Drug tests have become an everyday occurrence of modern life, but there are a few of us left who manage to go unmonitored. No fear - researchers are working to solve that problem, sort of. Researchers from the University of Oregon have developed a system whereby they can drug test entire cities:

Researchers have figured out how to give an entire community a drug test using just a teaspoon of wastewater from a city's sewer plant.

The test wouldn't be used to finger any single person as a drug user. But it would help federal law enforcement and other agencies track the spread of dangerous drugs, like methamphetamines, across the country.

Which cities were tested? They won't say, as it would "could harm [their] relationship with the sewage plant operators," not to mention the citizens spied upon.

The study did produce some interesting results:

She said that one fairly affluent community scored low for illicit drugs except for cocaine. Cocaine and ecstasy tended to peak on weekends and drop on weekdays, she said, while methamphetamine and prescription drugs were steady throughout the week.

Field said her study suggests that a key tool currently used by drug abuse researchers - self-reported drug questionnaires - underestimates drug use.

Of course, two federal government agencies are interested in this technology. The next phase of the War on Drugs?

On Suspension of Disbelief

Yesterday, The Film Geek reviewed Pan's Labrynth. For the record, I agree with TFG's assessment of the film (it's brilliant, really), but I'm more interested in something he said in the lead in:

I hate the fantasy film genre. Hate it with an effin' passion. I can't suspend logic and embrace disbelief long enough to enjoy most fantasy films, for some reason. (Unless the star of the flick wears a cape or spins webs on which he can swing, that is...).

That dovetails nicely with a couple of other posts I found dealing with when a movie or TV show gets something so wrong that it ruins the moment (along those lines, this site catalogs bad science on screen). The posts and, particularly, the comments are an interesting read. Absorbing fiction, to a certain extent, is all about suspension of disbelief. Sci-fi and fantasy require more of it, but internal inconsistencies can really blow the mood.

In some ways, it depends on how critical the error is to the work. I can turn off the legal nit pickers mind when I watch Law & Order and ignore the procedural weirdnesses that never happen in the real world (judges deciding motions while walking in the hallway with counsel? without the defendant present? or a court reporter? complete horse shit). But if the big twist at the end gets the law way wrong, I can't let it go.

Whether you can overlook the flaws also comes down to how much you care about the characters and what's happening to them. For instance, last night I watched The Deer Hunter, which includes two scenes where the main characters go hunting in the mountains. They're from around Pittsburgh, but the mountains clearly are the Rockies - indeed, those scenes were shot in Washington State (with non-native deer, to boot!). I noticed because I was already disengaged with the film (it's entirely too fracking long). Had I been more engrossed in the characters and what they were doing, I probably wouldn't have noticed it.

I think the bottom line is that if you go into a fictional experience with the intention of nit picking its flaws you can and it will ruin it for you (and those around you, probably). Don't sweat the details! Save your ire for the really colossal screw ups.

More On The Violently Prayerful

Following up on yesterday's post, there are more details of Dr. Drake's holy blitzkrieg over at the Volokh Conspiracy. Particularly interesting are some more quotes from Dr. Drake, from an interview he did here (quoting from Volokh):

Kaylor reports on an interview he had with Drake, who is quoted as saying: 'If they think it’s ‘outlandish,’ it doesn’t surprise me.... They’re ungodly, un-scriptural, not even Christians.... They have no reverence for the Word of God.... And if they think it’s ‘outlandish,’ don’t blame me, I didn’t write it, God did.... It really doesn’t matter what my words are ... What matters is what does God’s Word say? God’s Word says if they continue to attack God’s people, God will cause their children to become orphans and their wives to become widows. I didn’t say that, God did.'

So, just so there's no doubt about things, he wants his God to kill people for turning him in to the IRS. What an asshole!

Also, to pick up on Muze's comment from yesterday:

Wait a minute now. The Jacksons, Sharptons and Ferrakans do that sort of thing all the time.

If we are going to punish one we need to punish them all.

Two things.

First, if you mean their political activities should be subject to the same restrictions, you're right, but I'm not sure they're equivalent. As Volokh points out, what got Drake in trouble was endorsing a specific candidate - other more general political activities are OK. I'm not sure the folks you mention have done the same. If they have, they should pay the piper. Hell, I'm all for treating churches just like any other business or non-profit.

Second, if you mean they've similarly called for their followers to pray for the death of their enemies (and their children!), I'm gonna' have to ask for some evidence and/or cites. I'm no fan of any of those guys, but I don't think they've ever gone that far.

Third (yeah, OK, that's three things), don't bring Tito, Jermaine, and Michael into this - they've got their own problems to deal with!

The CD Turns 25

Last week marked the 25th anniversary of the production of the first compact disc. Initially developed from a failed laser disc tech for music, it and it's video counterpart the DVD, has become the medium of choice for home theater, computers, and game consoles. Hard to believe it all began with Abba's The Visitors!

The BBC has a neat rundown of the development of the CD here. It confirms a story I once heard that I thought was apocryphal about the amount of music the traditional CD holds. The two companies developing the tech, Phillips and Sony, couldn't agree on how much music it should hold. One favored about an hour, the other significantly more. They consulted a famous conductor (von Karajan, IIRC), who thought it should be long enough to hold Beethoven's Ninth Symphony, the longest recording of which was 74 minutes. That settled the debate, although over the years compression tech has led to slightly longer CDs - the longest in my collection is the 79:43 remastered version of Yes's Tormato. It was also just about twice as long as what LPs could hold before the sound quality deteriorated, which meant for longer albums, for better or worse.

One thing the CD has done is make album production a much more democratic affair. It's much easier and cheaper to produce a low volume run of CDs locally than it was to print LPs. As a result, bands with smaller audiences (most of the ones I listen to, for example) have an economy of scale unavailable to their early 80s/late 70s counterparts. That's definitely been a good thing, to my ears.

Prayer as WMD

I caught wind of this story last week, but was waiting for some better background before I blogged about it. Thankfully, Sara over at Orcinus has all the details.

It goes like this. Dr. Wiley S. Drake is the head of the Southern Baptist Church in Buena Park, California, near Disneyland. He has a habit of making overtly political pronouncements, the kind that churches that have tax-exempt status should not be making. He runs a radio show, "Crusader Radio," from his church. His latest pronouncement was an endorsement of Mike Huckabee for the GOP presidential nomination. This caught the attention of Americans United for the Separation of Church and State, which filed a complaint with the IRS.

So, called on the carpet, Dr. Drake does not offer a defense of his action or a mea culpa. He calls for his congregation to engage in "imprecatory prayer" against the folks at AUSCS, providing followers with a list of Bible verses to use in the process. Apparently, they meant to call down a curse and bad fortune on AUSCS. This caught the targets a wee bit off guard:

Conn [an official with AUSCS] said he was 'startled' at Drake's reaction to the complaint against Drake's First Southern Baptist Church of Buena Park.

'We expected him to try to defend his actions,' Conn said.

'Instead he goes on spiritual blitzkrieg against us, praying for our destruction. He completely glossed over the fact that his actions are clearly a violation of federal tax law.'

As Sara points out, when an imam does something like this, it's called a fatwa. What term shall we use when one of the American Taliban does the same? Love thine enemies indeed!

OK, You Win

This morning I stopped by my local gas station/convenience store on the way to my autocross to pick up some ice and a Sunday Gazette-Mail. I grabbed the paper and got into line behind an older woman who was in the process of checking out, obviously dressed for church. I overheard the end of her conversation with the clerk that involved "bad days," to which the woman checking out countered: "I've had a bad month. My husband walked out on me, with an old friend of mine from our church, a month ago today."

Damn. OK, hands down, you win. Yikes!

Paging Dr. Strangelove

The Cold War’s gone, but those bastards will find us another one

-Marillion, “Living With the Big Lie”

In a sign that radical Islamists or even the ACLU might not be our biggest problem in years to come, Russia has restarted its long-range nuclear bomber patrols that were grounded for 15 years following the collapse of the Soviet Union. Russian President Vladimir Putin said the move was necessary because of "security threats posed by other military powers." It's not the first aggressive move the Russian's have made recently:

The move came a week after Russian bombers flew within a few hundred miles of the US Pacific island of Guam.

A few days ago Moscow said its strategic bombers had begun exercises over the North Pole.

Alas, we're not exactly left with clean hands here:'

In 1992, Russia unilaterally ended flights by its strategic aircraft to distant military patrol areas. Unfortunately, our example was not followed by everyone,' Mr Putin said, in an apparent reference to the US.

Maybe it's not quite all threatening:

In last week's incident near Guam, the Russian pilots 'exchanged smiles' with US fighter pilots who scrambled to track them, a Russian general said.

Let's hope for continued good humor.

Bumping the Speed Limit

In one episode of Futurama, we learn:

Cubert J. Farnsworth: That's impossible. You cannot travel faster than the speed of light.
Professor Hubert Farnsworth: Exactly. That's why scientists increased the speed of light in 2208.
Cubert J. Farnsworth: That's also impossible.

Groening and company were only about 200 years off, as two German scientists have claimed to have broken the speed of light. How?

The pair say they have conducted an experiment in which microwave photons - energetic packets of light - travelled 'instantaneously' between a pair of prisms that had been moved up to 3ft apart.

* * *

The scientists were investigating a phenomenon called quantum tunnelling, which allows sub-atomic particles to break apparently unbreakable laws.

That's all well and good, but why can't I do 70 mph in Pennsylvania?!?

30 Years Ago Today

In honor of The King:

Ladies and gentlemen:
Elvis has just left the building

Elvis has just left the building --
Those are his footprints, right there
Elvis has just left the building --
To climb up that heavenly stair

He gave away Cadillacs once in a while;
Had sex in his underpants,
Yes, he had style!
Bell-bottom jump-suits?
That's them in a pile,
But he don't need 'em now,
'Cause he's makin' Jesus smile!

Elvis has just left the building --
(There he goes!)
Those are his footprints, right there
Elvis has just left the building --
To climb up that heavenly stair

The Angels all love him,
He brings them relief
With droplets of moisture
From his handkerchief!
Cher'bim 'n ser'phim
Whizz over his head --
Jesus, let him come back!
We don't want Elvis dead!

So what if he looks like a wart-hog in heat?
He knows we all love him --
We'll just watch him eat,
So take down the foil
From his hotel retreat,
And bring back The King
For the man in the street!

Elvis has just left the building --
Those are his footprints, right there
Elvis has just left the building --
He's up there with Jesus, in a big purple chair

Frank always knew how to say the right thing.

Even More Fun With Pro Se Filings

Yesterday I blogged about the guy, He Who Must Not Be Named,* who is suing Mike Vick for "63,000,000,000 billion" because of alleged dog theft. At the time, I didn't realize that he's a bit of a pro se celebrity, being the same guy who sued so many people in another suit that the list of defendants runs 57 pages. He ropes in hosts of people, both living and dead (including WVU legend Jerry West - WTF?!?), several organizations, and even some buildings. See for yourself here.

But returning to HWMNBN's latest adventure, Above the Law has the 3-page handwritten complaint for all to see. Highlights:

• it's styled as a Bivens action, that being a suit against a Government official for violation of civil rights, which is interesting since Vick (as far as we know) is not a federal agent
• Vick stole HWMNBN's identity to open new accounts at PetSmart
• HWMNBN wants his billions delivered via UPS to the front gates at FCI Williamsburg, where he is incarcerated, which is odd since UPS is one of the defendants sued in the other suit

Amazingly, he doesn't make a claim against Vick for failing to get the Falcons to the Super Bowl, the one claim he might be able to prove!

* This gentleman has adopted one of the favorite arguments of the tax protesters, that his name had copyright protection and thus unauthorized use of it by, oh, everybody, is a potential cause of action. It's a bullshit theory, but it can be very disruptive to the targets of the BS suits.

Oh, Turd Blossom, Please Don't Go

I hope Karl Rove hangs around in the public eye, because he is such comedy gold. He was on Rush Limbaugh's show this afternoon, talking about Duhbya and why so many people don't like him. His explanation? The haters are:

sort of elite, effete snobs who can’t hold a candle to this guy. What they don’t like about him is that he is common sense, that he is Middle America.

Oh . . . *cough* . . . Karl . . . *wheeze* . . . please, you're killing me. *side splitting laughter*

George W. Bush is Middle America? Holy shit, you must be smoking something good. How exactly can a child of privilege, raised in Maine, son of a former President with another governor and US Senator in the family tree, who cruised through unsuccessful top-level management positions in the oil industry and Major League Baseball be classified as "Middle America?"

Life in Iowa must be a hell of a lot more interesting that I thought it was, if that's the case. Maybe that's why they have the first caucuses there?

Seriously, the best comedy minds couldn't make that stuff up!

More Pro Se Fun

Wow, it's almost enough to make me feel sorry for Michael Vick. Not really, but almost. He's being sued by an inmate who claims:

Jonathan Lee Riches filed the handwritten complaint over 'theft and abuse of my animals' on July 23 in the U.S. District Court in Richmond, Va.

Riches alleges that Vick stole two white mixed pit bull dogs from his home in Holiday, Fla., and used them for dogfighting operations in Richmond, Va. The complaint goes on to allege that Vick sold the dogs on eBay and 'used the proceeds to purchase missiles from the Iran government.'

As for damages, he's asking for "$63,000,000,000 billion dollar." Whether he held his pinky finger up Dr. Evil style when he wrote that is unknown.

Did I mention this was a pro se lawsuit? Of course it is!

Nice Pants Go Appealing

This guy just doesn't know when to quit.

Remember Roy Pearson, the DC administrative judge who sued a dry cleaner for losing his pants, seeking $54 million in damages? He lost, of course, and became a national laughing stock, to boot. The couple that owned the dry cleaners extended a post-judgment olive branch, offering to drop their attempts to get Pearson to pay their attorney's fees in order to close the books once and for all.

No deal.

Not only did Pearson reject that more than reasonable offer, he's filed a notice of appeal in the case. You'd think that someone who was laughed out of court and in danger of losing his job because of his shenanigans would come to the conclusion that discretion is the better part of valor. Guess not.

The Burden of a Criminal Record

Last week I blogged about a debate in USA Today concerning how much the public should have a right to know (in general) about the prior criminal records of their fellow citizens. Today, I got a first-hand lesson in how a prior record keeps someone from reintegrating with society and, maybe, pushes them back towards criminal behavior.

I did an initial appearance this morning for a woman charged with possession of crack cocaine with intent to distribute - the cops searched her house, found some crack, she admitted it was hers. Fairly open and shut. When I went over to lockup to talk to her before the hearing, I ended up sitting in while the judge's clerk took financial information from her to determine if she qualified for a PD. In talking about jobs, the woman said that she had two other jobs in the last year, but she lost each of them when her employers discovered that she had a prior felony conviction. As a result, she was on public assistance of various types and making ends meet by babysitting.

It's just an anecdote, and one with facts of which I'm not fully aware. Still, next time you think about how somebody's past doesn't necessarily dictate their future, it's something to think about.

Little Rubber Girls

Wow. Just . . . wow. Jessica over at Feministing has some Google video of a British documentary about so-called "iDollators" - men who have "relationships" with supposedly lifelike Real Dolls. These basically oversized sex toys have taken the place of real women in these men's lives. It's equally disturbing and amusing peering into the lives of these tragically lonely people. Sort of like a train wreck - it's hard to look away.

Or, to quoth South Park, "dude, this is pretty fucked up right here."

An Interesting Discovery

As jedi jawa mentioned, I made my first public appearance with a clarinet in my hands since college at the community band practice Sunday night. In anticipation of that night, I got the horn out of storage and started to play around a bit. It also occurred to me that if I'm going to start playing again, I'd have to find a way to incorporate my playing with my ACIDPlanet stuff. One problem - my ACIDPlanet playing is confined entirely to USB MIDI controllers that only produce sound within ACID itself. ACID can record "live" sound, but would a crappy laptop (from a music production standpoint at least) do a decent job without a whole new hunk of equipment?

To my great surprise, yes. With a simple $15 PC mic plugged into what passes for a soundcard on the laptop, I can record a fairly decent quality sample of myself. I have to figure out how to boost the level a bit, but that's a minor inconvenience. So look for some live clarinet stuff in the mix in future ACIDPlanet projects.

This creates another problem, however, for which I blame jedi jawa, as he got me back into the clarinet thing in the first place. Now that I can suitably record "live" sounds and am no longer limited to USB controllers and VSTs, I must now go out and acquire some actual flesh and blood synthesizers - maybe even a woodwind-style synth controller. Oooh, the possibilities!

Going For the Low-Rent Phantom Look

Masks are a favorite tool of robbers, armed and unarmed. Some go simple, covering just enough of the eyes to prevent identification. So go comedic, utilizing the visage of Richard Nixon or Ronald Regan (or, possibly, Karl "Turd Blossom" Rove). Some, unfortunately, try the cheap approach. Yes, that's duct tape. Yes, he was trying to use it as a disguise to rob a Kentucky liquor store. According to witnesses, he was chased off by the store manager wielding a wooden club wrapped with - you guessed it - duct tape. The sticky faced bandito was apprehended in the parking lot, along with his whopping bounty - two rolls of change.

On the Counting of Chickens

This Saturday, voters went to the polls in Kanawha County to decide whether the neighborhood dog track should be allowed to expand its gambling venture to include table games. I haven't had much to say about it (if you're interested, see what jedi jawa, Muze, and the WV blogger collective has to say), mostly because while I work in Kanahwa County I don't live there and thus can't vote (and I haven't been to the dog track since we autocrossed there several years ago). My apathy aside, it's been a hard issue to avoid, given the media push by both sides in the greater Charleston metroplex.

The vote was close. Really really close. More than 45,000 votes were cast. At the end of the day Saturday, the "yes" side was ahead by a mere 33 votes. That's a margin of 0.08%. Notice that I said "ahead," rather than say "won." That's because there are more than 500 votes outstanding that will have to be examined and calculated by the County Commission later this week. Then there is the possibility of a recount, regardless of what the final numbers are. On top of all that, today an additional 64 ballots were discovered in a precinct that went overwhelmingly "no" on Saturday. It should be an interesting few days.

Given that, given how close the vote stands now and how there are plenty enough outstanding ballots to swing the outcome either way, you'd think both sides would be cautious about what's going on. Not the "yes" folks, which is mostly the dog track and related folks. They declared victory Saturday night, glibly announcing that usually when the outstanding ballots are counted in cases like this they tend to track the numbers already in.

That may be true, but by staking their position from the outset, the "yes" side has poisoned the well. The body responsible for reviewing the ballots, the County Commission, was fairly pro-table games prior to the election. Here's the process:

Carper and Commissioners Dave Hardy and Hoppy Shores, meeting as the Board of Canvassers, will start the canvass at 7 a.m. Friday. Before that, McCormick will check each challenged ballot to see if the voter was registered, voted at the wrong precinct, changed addresses or the county made an error, Carper said.

How might it turn out?

Of the 586 challenged ballots, Carper says he expects most will be discarded. 'In talking to poll workers who said a lot of people weren’t registered, I’m guessing we’ll count between 50 and 150.'

* * *

'It appears there was a very heavy number of people voting who were not registered,' he said. 'Those are illegal ballots. You can’t count them even if you want to.'

Can they be the neutral body needed to judge the validity of these ballots? If the numbers come out in support of the "yes" camp, will the "no" camp have a legitimate beef that the result was predetermined? Given what's been said already, they might.

Didn't we play this game in 2000 in Florida? Granted, I think we've moved passed hanging chads and what not, but I'm getting the same sort of queasy feelings I did back then. The stakes are lower, of course (for all its faults, the dog track is unlikely to mistakenly invade Ohio sometime soon). But it shows, again, how painfully vulnerable the democratic process is when things get so tight.

Sould You Know Your Neighbor's Rap Sheet?

The debate in today's USA Today deals with an interesting issue - how much does the public have a right to know when it comes to someone's criminal record? A pair of folks from the American Bar Association argue that easy access to criminal records prevents millions of folks (1 of 6 Americans has a criminal record) with long-ago priors and/or fairly minor convictions from reentering society and becoming productive citizens. They would make exceptions for things like sex offenders and disclosure within the criminal justice system. The paper takes the contrary view, arguing that open records leads to transparency in prosecutions and arrests and allows citizens to know important facts about others (including politicians).

I'm not sure where I fall on this. On the one hand, I'm used to thinking of criminal histories as off limits because they go in the sealed part of the appellate record in federal courts. Even the defendants don't get a copy. On the other hand, it's true that good things, on a meta level at least, rarely come from sequestering from public scrutiny evidence of what the state does to its subjects.

Death Gets a Makeover

You know the PR flaks are out of control when they get around to "softening" the image of the Grim Reaper. That's the case in Mexico, where members of a group that worship "Santa Muerte" ("Saint of Death") have unveiled a kinder gentler reaper - their version of Buddy Christ:

A small religious group that worships the grim reaper and is fighting for government recognition unveiled a softer image of their so-called Death Saint on Sunday: a woman with a porcelain face, brown, shoulder-length hair and long thin fingers.

Hundreds of worshippers filed into the Santa Muerte sanctuary in downtown Mexico City to see the statue in a flowing golden dress and veil, clutching a rose. She offers another option to followers who have traditionally prayed to figures of a skeleton dressed in a black cloak and carrying a scythe, or in a long flowing white gown.

Why the makeover? Because the group, which had been "registered" with the Mexican government, lost its preferred status in 2005. The Catholic Church, shockingly, is not impressed with the worshipers of death.

One Little Victory

If you're concerned about being a "winner," criminal defense is not the job for you. Most of your clients will be guilty (of something, anyway). Some will be aggravating to the point of distraction. The deck is stacked against you achieving a positive outcome for your client. That's doubly true on appeal, where various mechanisms are in place to uphold the lower court's rulings, even if they're wrong. So when it happens that you get a "win," even a little one, it's worth celebrating.

I got one today.

The case came to our office as a "cold record appeal," meaning that some other attorney represented the guy previously. That attorney had withdrawn or been fired, and the Fourth Circuit has asked us to take the case. Lots of times, these cases are also "cold" for another reason - they are utterly devoid of appealable issues, either due to a guilty plea, counsel's failure to raise certain issues, or both.

At first blush, this case looked like one of those. Our client had been stopped in a car with some cocaine and a gun. He pleaded guilty to what is known in the trade as a "924(c)" (for the part of the Code in which it is found) - possession of a firearm in connection with a drug offense. It's one of those offenses that has a mandatory minimum sentence, 5 years (60 months) in this case. Ordinarily, the recommended Guideline sentence for that offense is the mandatory minimum and that's what people receive.

There is an exception. If the defendant is a "career offender," his sentence is dramatically increased, based on the esoteric fact that the maximum sentence for a mandatory minimum offense with no stated maximum is life in prison. A person is a career offender if he has two or more prior convictions for a "crime of violence" or "controlled substance offense," as those terms are defined by the Guidelines. Following his guilty plea, our client was classified as a career offender, raising his minimum Guideline sentence from 60 months to 262 months - an increase of almost 17 years.

There was one problem with that classification - it wasn't right. The probation officer didn't notice. The AUSA didn't notice. Defense counsel didn't notice. Most important, the judge didn't notice. With his Guideline ranged bottomed out at 262 months, that is the sentence the client received.

When I first got the file and the transcripts in the case, I thought it was a dead bang loser. Guilty plea. No objection to the Guideline calculations. Within-the-Guideline sentence, which means a presumption of correctness on appeal. As I drilled down into the Presentence Report, however, I discovered that our client was not a career offender. Yes, he had prior convictions. But one of them was too old to count and another didn't qualify. I researched and discovered that the law in this area was fairly well settled and clear, so this might even be a big enough mistake to satisfy the plain error standard. It certainly impacted the guys "substantial rights" to be locked up for an extra 17 years.

I wrote the brief and submitted it to the Fourth Circuit. Shortly thereafter I got a call from the AUSA handling the appeal. He'd read the brief and agreed that it looked like our client was not a career offender. Would I agree to a joint motion to remand for resentencing in light of what I'd discovered? In my heart, I didn't want to - this was a good case and I wanted to push it all the way and get the win. But decisions like that aren't based on my desired outcome, but what is best for the client. In this case, it was definitely better to take the sure thing remand than take chances that the Fourth Circuit wouldn't be so kind. So the motion was filed and the case remanded.

Resentencing was today. I handed the case over to two of my trial-level colleagues, but went up to the hearing to see how it turned out. Everybody agreed that the correctly Guideline sentence was 60 months and that is what the judge imposed.

In a flash, our client had almost 17 years of his life at liberty restored to him. I had a chance to meet the guy, shake his hand, and wish him good luck. He was very appreciative of all we'd done for him, as you might imagine.

It was a wonderful moment. So often in my job, particularly in the past few years of Blakely, Booker, and now Rita confusion, there have been victories that were Pyrrhic at best. Sentences were vacated, only to have them reimposed in exactly the same way. It leads me to wonder sometimes exactly what the point of it all is. Then something like this comes along and it seems worth it.

All that, from my one little victory.

Dumb Legal News

A couple of minor odd news items.

• Today's New York Times has an article about a federally funded program designed to root out obscenity on the Internet. For $150,000 (of your tax money, of course) two retired cops sit around tracking down dirty web sites funneled to them by a fundie group called Morality In Media. Over 67,000 "citizen complaints" have been investigated, resulting in a whopping zero prosecutions by the Justice Department. Why is it that when it comes to the First Amendment, online porn is so prevalent that we've got to shut the whole thing down "for the kids," but to find something that doesn't even merit prosecution, much less conviction, under obscenity laws it takes $150k?

• Leroy Greer has a wife. He also has a mistress. And now the world knows it. Why? Because he ordered some flowers for his mistress from 1-800-Flowers, which then sent some follow up mailings to his home address. Where his wife found them, thus finding out about the affair. The good news? Greer and wife were already in the process of getting divorced. The bad news? Those flowers are probably gonna' cost him in the end.
  

See Kids, Drugs Do Make You Stupid

Mark O'Hara was stopped and searched at the Tampa Bay airport. He was carrying a little bit of pot and 58 Vicodins. He copped to the weed and explained the officers that he had a valid prescription for the Vicodins. They didn't believe him. He was prosecuted for possession with intent to deliver the pills. At trial, he produced both the doctor who wrote the prescription and the pharmacist who filled it for him. No deal. The state argued that there was no "prescription defense" to drug trafficking charges. Stunningly, the trial court agreed and did not instruct the jury about it. Dutifully, the jury returned a guilty verdict against O'Hara, which included a mandatory minimum 25-year prison term.

An appellate court reversed O'Hara's conviction, and hard. The court called the state's argument "absurd," noting:

Under the state's position, a patient who left the drugstore with 60 validly prescribed Vicodin tablets would face a minimum mandatory prison term of 25 years and a fine of $500,000, . . ..

Had O'Hara been allowed to present the defense, it would have swayed at least one juror:

Told of the reversal, the jury foreman from O'Hara's trial said he would have voted for an acquittal if he had known about the prescription defense.

'I'm not going to sleep tonight,' said Frank Brigliadora, the juror. 'That's definitely an injustice.'

One would that would be the end of it - if a court called my reasoning "absurd" I think I'd know it was time to move on. But drugs make you stupid, kids, especially when you have the power of the state behind you. The prosecutor in O'Hara's case refuses to dismiss the charges, even though O'Hara has spent two years in prison already.

Your War on Drugs(tm).

On Barry Bonds

Last night, San Fransisco Giants slugger Barry Bonds hit his 756th home run, breaking the record for career homers held by Hank Aaron. That moment has been the cause of a lot of hand wringing due to the fact that Bonds, in catching Aaron, probably used performance-enhancing steroids. He's never tested positive for a banned substance, but there's circumstantial evidence that Bonds was juicing for a few years before the whole steroid scandal broke in baseball a few years ago.

So, the question is, do the allegations surrounding Bonds over the past few years taint his accomplishment? Does the record book include an asterisk next to Bonds's name? Is Aaron still the real home run king?

As somebody who really doesn't give a hoot about baseball beyond the second or third day of the season when the Phillies are mathematically eliminated from the playoffs, I can't get too worked up about it. On the one hand, Bonds's prodigious late-career hitting certainly supports the theory that, had he not been juicing, Aaron's record would have stood. On the other hand, it's never been proven that Bonds took anything that MLB said he shouldn't.

Pushing the limit of the rules is a well-worn tradition in sports. In fact, getting a competitive advantage is usually a matter of figuring out how to get away with stuff that might violate the spirit of the rules without violating the letter of them. Hell, it's practically an American tradition! So I, for one, welcome our new home run overlord.

Does That Make Disco Balls WMDs?

USA Today has an interesting little blurb about a new weapon being developed for homeland security types. It's a non-lethal weapon designed to blind, stun, or otherwise incapacitate bad guys by emitting "a dazzling strobe." Like so:

The device works by temporarily blinding and disorienting a person, says Bob Lieberman, president of Intelligent Optical. Once aimed at someone's eyes, a series of light pulses and colors can be triggered and the subject's eyes can't adjust quickly enough to see.

'It's like someone shooting off a flashbulb in your face every few seconds,' Lieberman says. 'Because of the wavelengths and frequencies we use, there are psychophysical effects — a real disorientation. The reaction can range through vertigo to nausea.'

In other words, it's like pointing a Japanese cartoon at them.

Mike Vick in Cujo's Revenge

Are you a pissed-off dog lover, angry about the dog fighting activities of Falcons QB Michael Vick? Want to give your canine a chance to get some revenge for this latest indignity against his species? Then pick up a Mike Vick chew toy. But act fast, as the Chicago Tribune points out, there are probably some intellectual property issues that will rip it off the market soon.

Hmm, maybe the one-eyed wonder pup needs one of these to thrash about?

That's . . . Different

My lunchtime reading these days is the 2007 version of the Nebula Awards Showcase, featuring the winning and some other nominated short sci-fi and fantasy from the past year. The short story I read today was a nominee by Anne Harris called "Still Life With Boobs." It's one of the oddest, funniest bits of fiction I've read in a long time. And, happilly, it's available online here.

Read and enjoy!

Finally, I'm One of the Cool Kids

I've been Simpsonized!

WWTJHD?*

The AP via CNN has an interesting article on a potential sea change in the relationship between Christian churches and crime. Rather than offering hope, solace, and redemption to those trapped in the drug war, some churches in Kentucky are beginning to track offenders and the judges who sentence them to make sure the offenders get what's coming to them:

The Rev. Doug Abner, pastor at Community Church -- whose slogan for a 2004 anti-drug march was 'get saved or get busted' -- said the presence of Court Watch volunteers puts 'mild pressure' on judges 'to do the right thing.' The volunteers collect information for a database and look for trends in drug crimes.

Not everyone is pleased:

'The churches have traditionally been the humanitarian influence in society,' said the Rev. John Rausch, director of the Catholic Committee on Appalachia.

Churches should focus on drug counseling and ministering to inmates, he said, citing part of the Gospel of Matthew (25:36) concerning the final judgment: 'When I was in prison, you came to see me.'

'It isn't 'I was up for charges and you made sure they threw the book at me,'' Rausch said.

Not surprisingly, Rev. Abner and his ilk have friends in high places. Not Jesus - the holy rollers of the drug war, the federal government:

Desperate for a solution, Becknell began to work with Operation UNITE, a federally funded drug task force that covers 29 counties in southeastern Kentucky and which created Court Watch.

Your tax dollars at work.

* What Would TJ Hooker Do?

When Won't They Fold Like a Hide-A-Way Bed?

The performance of the Dems in Congress over the weekend in bowing to the will of Duhbya and his new revised "we really won't violate any laws or the Constitution this time" surveillance law really piss me off. Jack Balkin has a pretty good run down of the situation here. I won't rehash his points.

The Dems are so afraid of being blamed should something go wrong that they're afraid of doing the right thing. Well, guess what, geniuses? Next time something goes wrong, the GOP will blame you, doesn't matter whether you cave or not (if only they had caved faster . . .). Perhaps we need to send the leadership away for some Bene Gesserit training:

I must not fear.
Fear is the mind-killer.
Fear is the little-death that brings total obliteration.
I will face my fear.
I will permit it to pass over me and through me.
And when it has gone past I will turn the inner eye to see its path.
Where the fear has gone there will be nothing.
Only I will remain.

I'd like to say "I've had it" with the Democratic Party and that, metaphorically speaking, "I'm outta' here." But, realistically, there's no other option out there. The GOP is no better in terms of substance, tho' you have to admire their party discipline and willingness to back their man even when he's a deep in the shit as Duhbya is.

UPDATE: Glenn Greenwald has an excellent analysis about how the "Dems are soft on terror" theme blew up in the GOP's face last year. Which makes the Dem's capitulation even more infuriating.

Do Not Pass the Bar - Final Words

As advertised, I took some time over the weekend to review some pleadings in the Stephen Dunne case. Dunne, you'll recall, took the Massachusetts Bar exam and refused to answer a question that touched on gay marriage. As a result, he failed (by a little more than a point) the test and was denied membership in the Bar. He has taken his gripe to federal court.

I went into the weekend with as open a mind as possible - perhaps Dunne had a really creative argument that might validate his position. It's not beyond human experience, after all, for a young lawyer, or even a pro se plaintiff, to change the law. It's also not beyond at least my experience to hear news reports of a case that makes it sound frivolous, only to dig into the actual pleadings and find that it's much more substantive.

Having said that, I don't think this will be one of those cases. Dunne makes no persuasive argument that his Constitutional rights have been violated. He never explains, for example, how answering a question in which gay marriage is involved, but not at issue, forces him to profess "mandatory adherence with a particular belief" with which he disagrees.* I quoted the question in Friday's post - it's a fairly standard family law bar exam question, crammed with lots of potential issues for young legal eyes to spot. Nothing about it requires a discussion of the merits of gay marriage. It certainly doesn't ask for "mandatory adherence" to a pro-gay marriage position. In fact, one suspects that had Dunne answered the question with a preface disagreeing with Goodridge but actually answering the question he would have passed the exam.

The deeper one presses into Dunne's complaint, the more his real agenda becomes clear. Somewhere around the time he deploys the term "secular humanism" - complete with scare quotes - you begin to suspect that he's after something other than just a licence to practice law in the Commonwealth of Massachusetts. In fact, a considerable amount of Dunne's complaint is dedicated to an attack on Goodridge itself. How is that relevant to Dunne's failure to answer a question on the current state of the law in Massachusetts? It isn't, of course. But that's the big prize that lies at the end of Dunne's Quixote-esque quest. I suspect the federal courts will make quick work of Dunne's case.

Dunne appears to be a disciple of Roy Moore, the disgraced former Alabama Supreme Court Chief Justice who placed loyalty to his version of God's law above the US Constitution. If that's the case, Dunne should question whether this lawsuit will really get him what he allegedly wants. Attorneys are required to swear an oath to uphold the Constitution, not the Ten Commandments or the King James version of the Bible. If he can't do that in good faith, he may not be fit join the profession after all.

* It should be noted that the Bar is seeking dismissal for failure to state a claim, meaning that it (for purposes of that motion only) has to accept Dunne's factual claims as true. Thus, they don't take exception to that characterization of what has occurred.

Some Weekend Reading

Following up on yesterday's post about Stephen Dunne, who failed the Massachusetts Bar exam because he wouldn't answer a question touching on gay marriage, I've got some weekend reading for everybody, if they're interested.

First, head over to Dunne's site and take a look as his (amended) complaint filed in federal court.

Second, take a look at the Bar's motion to dismiss, supporting memorandum, and attached exhibit.

Then, ponder in the issues for a while. To get you started here (apparently) is the question that Dunne refused to answer (#4, from page 5-6 of the exhibit - paragraph breaks added):

Mary and Jane, both attorneys, were married two years ago in Massachusetts.

The day before their marriage, Mary and Jane each fully disclosed their assets to the other and signed an antenuptial agreement (the “Agreement”) in which each of them agreed that if they were ever divorced (i) they would divide any joint marital property evenly, (ii) they would not seek or accept any property that the other brought into the marriage, and (iii) they would not seek or accept child support or alimony from the other. The Agreement was drafted and reviewed by an attorney representing Jane. Mary did not hire an attorney to review the Agreement as she
“trusted Jane.”

At the time of the marriage Jane had a two year old adopted child, Philip, and Mary was three months pregnant. When Mary gave birth in Boston six months later to Charles, Mary and Jane were listed on his birth certificate as his parents. Mary has treated and referred to Philip as her son, although she did not adopt him. Mary, Jane, Philip and Charles lived in a house in Boston owned by both Mary and Jane. The down payment for this house came only from Mary.

Jane was the sole supporter of the family, while Mary stayed at home taking care of Philip and Charles. Mary had no savings, while Jane had over a million dollars in savings from an inheritance that she received when her mother died three years ago.

Yesterday Jane got drunk and hit Mary with a baseball bat, breaking Mary’s leg, when she learned that Mary was having an affair with Lisa. As a result, Mary decided to end her marriage with Jane in order to live in her house with Philip, Charles, and Lisa.

What are the rights of Mary and Jane?

I'll do the same and be back with some thoughts on Monday.

Do Not Pass the Bar (Redux)

Stephen Dunne, the subject of a post I had back in June about the Bar exam in Massachusetts has left a comment to that post that deserves rebuttal:

The United States Constitution forbids individual states from preventing qualified attorneys from practicing law based on the lawyer’s political leanings. Massachusetts violated the Constitution by including a question on homosexual marriage on the Massachusetts bar examination.
No state can refuse the granting of a law license based upon one’s particular viewpoint.

You're missing the point, Mr. Dunne - the Bar exam is a test to see if you have a sufficient grasp of what the law is, not what you want it to be. If I answered a Bar exam question on a search & seizure issue based on how I'd interpret the Fourth Amendment, rather than how the Supreme Court actually has done so, I'd bomb out on that question. Coincidentally, if I go to the Fourth Circuit and try to tell the court what the Fourth Amendment really means, versus what they've said it means, I lose. Big time.

You obviously have a problem with gay marriage, either in concept or in how it was implemented in Massachusetts. Fair enough. But if want to practice law in that state, you need to know what the Supreme Judicial Court says that law actually is. Suck it up, answer the question, and pass the test. Then you can advocate for a change in the law as an attorney.

As for the idea that a state can't deny someone Bar membership because of their beliefs, ask Matt Hale, although that's obviously an extreme case.

UPDATE: Mr. Dunne has a website dedicated to his lawsuit here, which I discovered via his comment to this post here.

Mistake or Mischief?

The criminal justice system, like all other human endeavors, makes mistakes. Sometimes, the wrong people go to prison (and vice versa). But when it comes to wrongful convictions, how many can you chalk up to mistake and how many are the result of something more sinister. Professor Richard Moran, who writes in today's New York Times, analyzed the 124 exonerations of death row inmates from 1973 to 2007 and uncovered a disturbing trend:

80, or about two-thirds, of their so-called wrongful convictions resulted not from good-faith mistakes or errors but from intentional, willful, malicious prosecutions by criminal justice personnel.

Moran argues that the term "wrongful conviction" is too squishy and suggests mistake, rather than malfeasance. He may be right, but I'm not sure that a switch to "unlawful conviction" (his suggestion) will do much good.

Does Russia Own the North Pole?

In a move that hearkens back to the days of Columbus and Magellan (the Canadian Foreign Minister snarkily quipped "this isn't the 15th century"), a Russian crew has trekked to the bottom of the ocean at the North Pole and planted the Russian flag in the ocean floor. Why, you ask?

Melting polar ice has led to competing claims over access to Arctic resources.

Russia's claim to a vast swathe of territory in the Arctic, thought to contain oil, gas and mineral reserves, has been challenged by several other powers, including the US.

This was, reportedly, the first expedition of it's kind. Still, that Canadian official isn't impressed:

You can't go around the world and just plant flags and say 'We're claiming this territory',' he said.

The Russians's claim stems from an undersea ridge that they claim is an extension of Russian oversea territory.

Breaking - Democrats Cause Epilepsy!

Last week, Supreme Court Chief Justice John Roberts suffered a seizure at his summer home in Maine. It's the second seizure for the Chief since 1993, which means he meets at least one criterion for a diagnosis of epilepsy. One would think that medical science probably has a pretty good handle on what causes epilepsy, or at least how to deal with it, and that the Chief is in no danger of a shortened tenure on the Court.

But right-wing bloviator Mike Savage knows better. He knows that the real culprit in the case of the Chief's illness is . . . Democrats! Specifically, NY Senator Chuck Schumer. His theory is that the Chief's seizure was a direct result of Schumer's tough talk last week about the shifting ideological slant of the Court. He then goes on to suggest that the Dems somehow poisoned the Chief, ala the ex-KGB agent in the UK who was murdered via poison. Particularly ironic, given that the one person who has publicly called for the poisoning of a sitting Justice is right-wing harpy Anne Coulter. But it's just a joke when she says it, right?

For what it's worth, when I first read the excerpts of Savage's theory, I figured he was joking. But having listened to the whole thing over at Media Matters (see the above link), it sure doesn't sound like it. If he is, he has a hell of a deadpan delivery.

I am Not a Moose! Or a Puppet!

The lawyer-client relationship is complicated when it comes to who decides what happens. Lawyers generally get to decide things like trial strategy, whether to call certain witnesses, and (most relevant to me) what issues to pursue on appeal. Clients, on the other hand, control the big decisions - whether to plead guilty or go to trial and (again, most relevant to me) whether to file an appeal in the first place.

What happens when the client enters into a plea bargain in which he agrees to give up his right to appeal and then tells you he wants to appeal? Most courts say the attorney must still file the appeal and let the Government bring it up in the briefs (see, for example, this post over at the Fourth Circuit Blog dealing with that kind of situation). Yesterday, the Seventh Circuit took a contrary position. Along the way, Judge Easterbrook makes an odd comparison:

These decisions all rely on the holding of Roe v. Flores-Ortega, 528 U.S. 470 (2000), that a criminal defendant has a statutory right to appellate review, and that when counsel utterly frustrates that right by failing to appeal on his client’s request,
counsel’s performance is automatically ineffective. A lawyer who does not show up for trial might as well be a moose, and giving the defendant a moose does not satisfy the sixth amendment. See United States v. Cronic, 466 U.S. 648 (1984). The same understanding applies when the lawyer does not show up for appeal.

OK (emphasis mine). An interesting analogy, to be sure. But Judge Easterbrook isn't done:

We confess to some doubt about the constitutional reasoning of the circuits that have located in the sixth amendment a rule that a lawyer is the client’s puppet.

So I am to be niether a moose nor a puppet. Good to know.

America - A Motorports Island Unto Itself, Again

As an American soccer fan, I'm used to a sport that is a passion all over the plant being virtually ignored at home. For years, Formula 1 was in the same boat. There was no round of the World Championship in the US. There were no American drivers, save for Michael Andretti's half-assed semi-year back in 1993.

That started to change back in 2000, when Formula 1 returned to the US with a round at Indianapolis, on a specially constructed road course built inside the famed Indianapolis Motor Speedway. Shortly thereafter, Red Bull began a search for young American drivers to bring to Europe and develop for F1. Californian Scott Speed moved up the ladder in Europe and, last year, became the first full-time American driver in F1 in more than a decade. Although his team, a Red Bull junior team dubbed "Scuderia Toro Roso" (Italian for "Red Bull Stable"), wasn't all that competitive, Speed acquitted himself fairly well, at least in comparison to his teammate. Maybe he wasn't the next Alonso, but he was someone the American fans could wave the flag for.

In the space of a month, both of those things came crashing to a halt.

First, IMS head honcho Tony George and F1 boss Bernie Ecclestone announced that the contract for the USGP at Indy would not be renewed for 2008. As much as I loathe George for the mess he's created in American open wheel racing, it's hard to blame him for not ponying up the excessive sanctioning fees that Bernie requests these days (it's no secret that the new races on the F1 schedule in places like Bahrain and Malaysia are heavily government subsidized). Still, it sucks that the circus won't come to town next year.

Second, Speed was dismissed from Toro Rosso after the European GP. Speed, along with a handful of others, was caught out during a massive downpour and wrecked. Back in the pits, he had a physical confrontation with the team boss, which was the the final brick in the wall that had been building between Speed and management all season.

So now, we American fans are without a race and without a driver to root for. The potential toehold in the American sports landscape that had been carved out in the past few years is gone. Does it kill interest in F1 for me? No. It just means a return to following a great sport that the vast majority of my countrymen don't even know exists.

I Wonder What the Beginner's Class Is Like?

Mistakes happen, but when they happen during a gun safety class, they can be pretty funny:

A woman taking an advanced handgun class accidentally shot herself during a training session.

Michelle S. Cox, 50, of Alexandria, Va., shot herself in her upper left thigh with a 9mm semiautomatic handgun. Cox was taken to a local hospital after last week's accident at a gun range in Fort Spring. Her condition was not immediately available but Greenbrier County sheriff's Deputy Lt. B. E. Hosey said the injury was not life threatening.

Hosey said Cox had pointed the gun at her body and had her finger on the trigger, a violation of several safety rules. But he said the shooting was accidental and no charges will be filed.

Wow, that's some real advanced training, right there. Perhaps this guy was the instructor?

Yes. That's a DEA agent. In a room full of people, including kids. Your tax dollars at work!

Becks Backlash Begins - Brits Baffled?

So far, the Beckham revolution in Major League Soccer has been a bit of a dud. Not because of Beckham's less than stellar play on the field, but because he hasn't even really taken the field in anger yet. Aside from a brief spell at the end of a friendly against Chelsea, an injured ankle has kept Becks on the sideline during games and training.

As much as his absence has made life hard on Galaxy manager Frank Yallop, it's really pissing off the fans. Not LA's fans, mind you, but the ones in other MLS cities who paid through the nose to buy tickets (usually to multiple games, many of them not involving the Galaxy) to see the game's Next Big Thing (particularly as the league's Last Big Thing is off to Portugal). The Evening Standard's This Is London website has several pictures of FC Dallas fans who were a bit disgruntled at Becks's absence from The Hoops's match against the Galaxy (I particularly like the one behind the FC Dallas net).

Note to Jim C, the commenter from NYC who goes all the way to a British web site to vent his soccer hatred: (1) your ranking of US sports is wrong - NASCAR is at least #2 these days, hot on the heals of the NFL, and (2) hockey is circling the drain in the states - its ratings are routinely surpassed by . . . wait for it . . . soccer games! Hold onto that 'tude, tho' - it'll keep you warm when the Red Bulls fail yet again to win a championship.