Thursday, December 27, 2007

2007 - My Year in Film & Video

Damn, I saw a lot of movies this year! And a mess of really good ones, too. Here are the ones that made an impression on me, even if it wasn't the best impression (in one case, at least).

In the Theater

  • No Country for Old Men: Not surprisingly, the new Coen Brothers flick has garnered lots of praise (The Film Geek weighs in here) and will figure heavily in the upcoming Oscar season. It is an excellent flick, although I don't think it quite measures up to Fargo or O Brother, Where Art Thou? Having said that, it's got some absolutely mesmerizing moments (you'll never listen to footsteps in the hallway the same again) and will hard to beat in the best pic derby (NOTE: I've not seen either Sweeney Todd and There Will Be Blood, which are both garnering serious praise as well).
  • Sicko: Michael Moore's latest documentary isn't going to change any hard-held opinions on health care, but it does provide a pretty compelling argument for what's wrong with our current system. I was surprised by how much the flick bypassed the completely uninsured and focused on the under insured, who do constant battle with their insurance companies to pay up their share. That's probably where the battle for reform of the medical industry will be won, as more middle-class folks can see the same thing happening to themselves in the near future.
  • The Simpsons Movie: I'm a huge fan of The Simpsons (I working my way through the ninth season on DVD as I write), but I'll admit that I've not paid a whole lot of attention to the show in the past few years. It's lost a step and, quite frankly, isn't the watch/tape at all costs show it once was. I was worried that the movie wouldn't really justify itself, but the input of several of the early writers/producers really paid off. Very funny.
On Video
  • United 93 (2006): I took a pass on Oliver Stone's 9/11 movie, but I was intrigued by the idea of Paul Greengrass's approach - to try and recreate that awful morning through the activity on the one hijacked plane that didn't hit its target. Using a largely unknown cast, as well as several of the actual figures involved on the ground, Greengrass evokes a great tension that's sustained even though we know how it ends. When the passengers start making farewell calls to loved ones, I wept. That doesn't happen very often.
  • Lost Boys of Sudan (2003): When most documentaries today proceed with a political axe to grind (see Moore, Michael, infra), it's refreshing to see one where the directors get out of the way and let the story unfold on its own. The story, in this case, is about several teenage boys* from Sudan who were orphaned due to the civil war there. They are selected as part of a refugee program to relocate to the United States, specifically Houston. The movie follows their attempts, over the next year, to learn a new life in a new country. Not all goes well, but it's generally uplifting.
  • Downfall (2004): This film earned some notoriety for being the first German film to portray Hitler on screen in decades, apparently. It's a chilling study of the final days in the bunker, as Hitler's tenuous grasp on reality completely dissolves and the Red Army moves in for the kill. As gripping as the Hitler narrative is, what really stays with you is the portrayal of Joseph and Magda Goebbels, who methodically murder their six children (before killing themselves) to spare them living in a world without the Third Reich. It's pure evil that is more frightening than any gory slasher flick.
  • The Last Temptation of Christ (1988): Although I remember the hullabaloo when this film first came out, it took me nearly 20 years to get around to watching it. Speaking as a non-believer, I have to say that it's a fascinating thought experiment on what it would mean for Jesus to exist as part of the fully human world. Once you get past the odd non-PC casting (Harvey Keitel as Judas!), the performances are very good. To top it off, you get a wonderful soundtrack from Peter Gabriel.
  • A Scanner Darkly (2006): While lots of Phillip K. Dick works have made it to the screen, not very many of them have been all that good. It takes some serious outside-the-box thinking to make his stuff work visually, which Richard Linklater can do quite adeptly. Using the same rotoscoping technique he did with the equally excellent Waking Life, Linklater and a well-matched cast indulge in Dick's drug-fuelled paranoia with gusto. Probably need to watch it more than once, tho'.
  • Fight Club (1999): What an overrated piece of crap! There - I've said it. I have no idea how it commands so many high ratings over at IMDB or in the Netflix comments. Yes, Ed Norton and Brad Pitt are very good in it and some of the cinematography is clever. But the plot doesn't make sense and the big twist near the end doesn't work, either. I suppose I also don't buy into the whole "masculinity=violence" theme, either, so perhaps it just doesn't connect with me. Oh well.
Wow, I rambled on quite a bit more than I intended to there! Like I said - I watched a lot of movies this year.

That's it for 2007 here at the Ranch - see y'all next year.

* NOTE: One of the user comments over at IMDB asks indignantly "[w]hy aren't women and girls being offered these types of massive resettlement?" Apparently, the reviewer came in late. The film opens with paintings of village raids with voice overs describing attacks that destroyed families. It tells how the men were generally kills, while the women and girls were captured "until they were used up." Younger boys sometimes managed to escape. In other words, the massive resettlement doesn't appear to apply to women and girls because they're either in captivity or dead, which is a whole separate topic for a movie.

On Religious Accommodation

In any given week, someone like Bill Donahue or James Dobson makes the absurd argument that religion (by which, of course, they mean their particular variety of Christianity) is under attack. It helps keeps the troops wide-eyed paranoid and motivated, but it's just not true. In fact, the entire legal structure of this country - from the First Amendment, to tax-exempt status for churches, to legislation like the Religious Freedom Restoration Act - places religion in a privileged place, at least when compared to non-belief.

For a recent example, consider a recent decision detailed on the Ninth Circuit Blog, involving the application of the "Justice for All Act of 2004." The Act requires that persons convicted of federal crimes submit to the collection of DNA for entry in a national database to use as a resource to solve past and future crimes. Court after court - including the Ninth Circuit, IIRC - has rejected Fourth Amendment challenges to such collection. Regardless, all a defendant had to do to throw a monkey wrench in the system was plead that collection of a blood sample violated his religious beliefs. Here's the money quote:

Without determining the precise scope of Zimmerman’s beliefs, the district court held that his beliefs weren’t religious . . . This was error. While this may not be a mainstream religious belief or common interpretation of the Bible, Zimmerman’s belief that he can’t give a blood sample is based on his connection with god, not purely on secular philosophical concerns . . . As a result, the district court erred in holding that Zimmerman’s refusal to give a blood sample wasn’t based on a religious belief.
Read the bolded section twice. It's not good enough to object "purely on secular philosophical" grounds - like the romantic notion that the Fourth Amendment still means something. But come up with a reason that's based on a "connection with god" (how was that connection proven? what was the standard of proof?) and everybody stops dead in their tracks.

Not that I plan on committing any crimes in the near (or distant) future, but it's depressing to know that to avoid having the Feds catalog my genetic markers I'd have to perjure myself and come up with some bullshit God-woo to back up my objection.

Wednesday, December 26, 2007

2007 - My Year in Tunes

Another year, another unhealthy expansion of my CD collection. When I started sorting through this year's new arrivals, I thought I'd have a real hard time narrowing it down to just a few highlights. In the end, however, these really rose to the top. As usual, I don't make any claim that these are the "best" of anything, but at least some favorites.

New for 2007

  • Richard Barbieri - Things Buried: Barbieri is currently best known as the keyboard player with Porcupine Tree, although he first came to prominence in the 1980s with the arty synth-pop band Japan. Barbieri isn't a Wakenman/Emerson fleet fingers of fire kind of guy, but instead is a master of sound creation and texturing. This - his first solo album in all these years - is an all-instrumental exploration of those tones, noises, and rhythms that he can conjure up. There's just enough "real" percussion and some tasty fretless bass from Brand X's Percy Jones to provide some variety. If I had any kind of talent, my stuff would sound a lot like this.
  • Beardfish - Sleeping in Traffic: Part One: While not the revelatory experience that the band's two-disc The Sane Day was last year, this is still an excellent album. It's a little heavier and less keyboard friendly, but contains lots of great bits. It also has my favorite track of the year, "Roulette," which ends with a nice accordion feature!
  • Rush - Snakes and Arrows: To be honest, while Rush has long been one of my favorite bands, their more recent offerings have been inconsistent at best. Not bad, mind you, but devoid of many highlights. For whatever reason, the boys brushed off the cobwebs with Snake and Arrows, my favorite Rush disc since around Grace Under Pressure. Musically, the presence of lots of acoustic guitar (and even some Mellotron!) is a nice contrast to the thundering sections. Lyrically, Peart's focus on issues of religion, faith, and the lack thereof is right up my ally.
New to Me
  • The Decemberists - Practically everything: I developed a serious band-crush on The Decemberists this year. It started when I read about their last album, The Crane Wife, on some 2006 best of lists and picked it up in January. I really liked it. Spurred on by some comments to this post, I explored the back catalog. By the end of the year, I had the whole thing (except for one EP, I think) and Netflixed the DVD. Perhaps even more impressive - I got them all at the local Borders, no Internet commerce required. It's been some time that I could say that about a new discovery.
  • The Flaming Lips - Yoshimi Battles the Pink Robots (2002): This album entered my brain in the same way as The Crane Wife, even though they're not a thing alike. It was highly praised when it came out, so that I eventually picked up a copy this year. I really like it, even though some fans of the band consider it to be overrated compared to the rest of their catalog. Which just means I'll have to explore it some more, I guess, in 2008.
  • D.F.A. - Lavori in Corso (1997): What a buy. I picked this up in a clutch of used discs being sold by the organizer of ProgDay, sort of vaguely knowing the name, but that's about it. What I discovered was a band that reminds me a lot of a more melodic less jagged version of their countrymen Deus ex Machina (and without that Latin lyrics). Lots of symphonic influenced fusion with interweaving keyboard and guitar runs. Excellent stuff, if you like that kind of thing.
Honorable Mentions
  • Keneally & Genesis reissues: Sometimes things come around that are neither new for the year or new to me in particular. Such is the case with a pair of excellent reissues. First came the goodies from Mike Keneally, who recently regained the rights to his first few solo albums. 2007 saw the reissue of the first two, hat and Boil That Dust Speck, in remastered forms with bonus DVDs including all sorts of making of videos and old & new live footage. Then came the Genesis reissues, which (at this point) cover all of the non-Gabriel years. Released in two boxed sets, I picked up the one with A Trick of the Tail, Wind and Wuthering, . . . and Then There Were Three, Duke, and Abacab. Each came in a 2-disc set, with the remixed album on one disc and a bunch of DVD bonus goodies on the other, including some very cool hard to find live footage.
That's it for tunes. Check back tomorrow for the annual review of film & video.

Wednesday, December 19, 2007

Happy Holidays!

The Christmas crush is upon me, which means it's time to step away from the Ranch for a while. I'll be back next week with the annual year in tunes and year in film posts. I'll leave you with this little ditty and the hope that Santa flies right past your house this year:

He knows when you are sleeping,
He knows when you're on the can,
He'll hunt you down and blast your ass from here to Pakistan.
You better not breathe, you better not move,
You're better off dead, I'm telling you, dude.
Santa Claus is gunning you down!
Merry Xmas, everybody!

I Want the Fourth Amendment for Christmas!

Holy cow, this seems like a really dumb idea (via The Volokh Conspiracy):

Police are stopping law-abiding motorists and rewarding their good driving with $5 Starbucks gift cards.

A traffic officer came up with the idea to 'promote the holiday spirit and enhance goodwill between the traffic unit and the motoring public,' police Sgt. Tim Curran said.

Local businesses donated money to buy the gift cards.

'They raised a substantial amount of money,' Curran said. 'They'll be pulling over a lot of people.'
As Eugene points out, this is surely unconstitutional - cops need at least reasonable suspicion of criminal activity to "seize" someone, which includes traffic stops. On a more practical level, I would be hugely pissed if, while running around trying to finish up my Xmas shopping, I was pulled over the cops as an expression of "holiday spirit."

An Awkward Conversation

When I do initial appearances for newly arrested folks, it's not uncommon for them to ask me to do them a favor. Make a phone call to a relative (or another lawyer), check to see if he can get some food, etc. But the other day I had someone make a request I wasn't quite prepared for. The conversation, after I'd explained what would be happening in court, went basically like this:

Client: Can you do one thing for me?

Me: I can try.

Client: Pray for me.

Me: I’ll do what I can.

Client: Just pray for me – you believe in God, right?

Me: Well, actually, no.

Client: What, you don’t believe in nothin’?

Me: Nothing supernatural, no.
After that there was an awkward pause before I redirected the conversation towards his next court date and finished up.

My initial feeling was that I screwed up - they guy was looking for some comfort and I ruthlessly shut him off. But the more I thought about it, the better I felt. My job is not to bring comfort to my clients. It's to be honest with them in my representation and make sure they know the reality of their situation. In fact, sometimes I have to cause quite a bit of discomfort to make sure they know what's in store for them.

So in the end, I felt OK with things, but it's still a unique situation in my legal career.

Tuesday, December 18, 2007

My Book Report

Per Mountain Laurel's request, a little bit about Persepolis, by Marjane Satrapi, which I just finished reading.

Persepolis is a memoir about a girl who grows up in Iran during and after the Islamic Revolution. What interested me in the book is that rather than being a traditional memoir, it's actually a graphic novel (and, as the jacket proclaims, now a major motion picture). Originally published in four parts in Europe and two parts in the US, it's been collected in one volume. Done with stark black and white drawings, it's really quite effective in conveying the narrator's point of view, particularly when she engages in some imaginative flights (she talks to God, for instance).

The story of Persepolis basically breaks down into three parts. The first covers the pre-teen narrator and her family in the years just before, during, and after the Islamic Revolution. They're an upper middle-class family with liberal/socialist politics and oppose the rule of the Shah. Initially, the revolution comes with great joy, but only until the Shah's goons were replaced by the fundamentalist goons. As life grows increasingly bleak with the beginning of the Iran-Iraq war, the narrator's parents decide to send her to Vienna to continue her education and stay safe. Part two covers her early teen years in Vienna, which, quite frankly, was a fairly dull stretch for me. Much more run of the mill "coming of age" stuff that I expected. After the war ends, she returns to Iran, which is where part three plays out. Part three ends when the narrator, married but on the way to a divorce, finally concludes that she simply can't live under the fundamentalist rule in Iran and she leaves for France.

The most interesting parts of the book, as I said, are the two bookends that take place in Iran. The provide an interesting perspective into an environment that Americans, certainly, just can't understand. It's funny and a bit sad as the narrator engages in what we think of as completely routine kid behavior that becomes rebellious because of the strict rule of the fundamentalists. Among the stand-out episodes are the narrator's experience in the black market for cassette tapes, from which she emerges with albums by Kim Wilde and (of all bands) Camel. The artwork and style allows the perspective of a (bright & precocious) child shine through, rather than the grown up reflecting on what she remembers.

Those two sections make the book a worthwhile read and look to make the upcoming movie (which adopts the black and white style animation) interesting as well.

The Politics of Commutation

Over at Sentencing Law & Policy, Doug Berman asks the musical question, "should never granting a pardon be a point of political pride?" The subject comes up in the increasingly bitter GOP primary war being fought between Mitt Romney and Mick Huckabee. As former governors, both exercised the executive power to pardon convicts or commute their sentences.

Huckabee utilized that power quite a bit and in some controversial ways. The Huckabee-pushed early parole of Wayne Dumond, a convicted rapist who committed at least one murder after his release, appears to have been motivated mostly by a desire to please the anti-Clinton right, for whom Dumond was a cause celebre (his victim was a distant relation of Bill Clinton). Others have argued that a Huckabee pardon was easier to obtain if one played to the governor's well known Baptist faith.

By contrast, Romney claims to have never pardoned anyone during his term as governor. Given Mitt's other claims, that may not be altogether accurate, but he's at least putting that out there as a plus for his campaign.

Is that a good thing? Pardons and commutations can obviously blow up in your face when the person granted release goes out and commits another crime, particularly a heinous one. And they can also be abused for political purposes, as Duhbya's commutation of Scooter Libby's sentence was earlier this year. But abuses and bad decisions shouldn't obscure the fact that more deserving folks are denied relief than granted it. And it's no better to completely deny those folks relief than be overly generous with them.

It's one of those situations where the judgment of the man or woman making the call is paramount. From what I've seen so far, I wouldn't trust either of these yahoos to make those calls as President.

Sunday, December 16, 2007

Good Riddance, RichRod

When the details [of the new contract with WVU] come out, you’ll see that I’m committed to West Virginia University for a very, very long time.
That was Rich Rodriguez last year, after talking with Alabama about the Crimson Tide's vacant head football coaching job. RichRod used the interest from Alabama to coax a new big-money contract out of WVU's administration as well as promises of upgrades to the Morgantown facilities. He seemed to have settled in at his alma mater as it got ready to make a run at a national championship. Now, a year later, he played the same sort of "will he or won't he" game with the coaching vacancy at Michigan. Only this time he will.

Well, I say good riddance. I understand the pull of a job with the history of Michigan - I was a Wolverine fan long before I ever set foot in Morgantown. What I don't understand is all the jerking around - RichRod angrily refused to discuss the rumors that he was even talking to Michigan, must less considering taking the job. And if there's even a possibility that you'd consider moving on to greener (er, bluer) pastures, don't talk about your long term commitments to stay where you are.

In the end, the coda on RichRod's WVU tenure will be that collapse against Pitt, a loss as a four-touchdown underdog to keep the team out of the national championship game. RichRod's inability to find a Plan B when the offense sputtered or to ramp his players up to get out of their funk points to some fundamental issues in his coaching style. Will the Wolverines discover the same thing?

The Tale of Sweeney Todd - the Movie, That Is

When I saw a big movie theater display for Tim Burton's upcoming film version of Sweeney Todd: The Demon Barber of Fleet Street, I was quite apprehensive. The Sondheim musical, to which jedi jawa exposed me in college, was an eye opener - a brutal tale of bloody revenge gone bad (with a side of cannibalism thrown in for good measure), it showed me that Broadway had a reach beyond the typical toe-tapping leave-the-theater humming musicals I'd known growing up. Would it stand up to the Hollywood treatment, even a treatment as warped as Burton would apply?

Since the movie hasn't come out yet, I'm still not sure. But this piece in today's heartens me a bit, as it explains how deeply involved Sondheim was in cutting things from the play and reworking some musical bits to make it work on screen. Along the way, there's some good points to be made about why theater, and musicals in particular, don't always translate easily (if at all) to the screen. The presence of the original artiste isn't always a guarantee of success - Pete Townsend eviscerated Tommy to such a degree on Broadway that it's hardly recognizable. But it gives me some hope that it'll come out OK.

Judicial Hellhole? Maybe Not.

For years, certain business interests have wailed that West Virginia's civil justice system is so completely messed up, so completely skewed in favor of frivolous plaintiff's lawsuits, that the state is a "judicial hellhole" (or "tort hell" - take your pick). Such suits drive away business and generally lead to the state's chronic economic woes.

It's a great story, except that it's probably not true. The argument against the "hellhole" label got a boost this week with the publishing of a study by two WVU professors which reveals that the overwhelming majority of WV trial judges - who would be on the front lines in this hellhole - don't see it:

The vast majority of circuit court judges — 77 percent — responded that there had not been an 'explosion of frivolous litigation,' Brisbin and Kilwein report. About one in five answered that there had been a slight increase in frivolous litigation.

Also, when asked to identify the greatest problem confronting the state’s courts, none of the 66 circuit judges named frivolous civil lawsuits, the study states.

The annual statewide personal-liability caseload has declined, suggesting that the courts are not being overwhelmed by tort cases, the study notes.
So why do the folks decrying the legal climate get it so wrong?
The authors also call into question the methods of various studies that have portrayed the state’s judicial system in a negative light.

'Business interest groups and the media produce stories about abusive litigation that neglect important contradictory information, rely on erroneous information, make assumptions based on inaccurate anecdotes, or use inadequate evidence and slogans generated by the ‘research’ arms of interest groups who neglect normal standards and practices of empirical social scientific inquiry,' the study states.
In my experience, when someone bemoans "frivolous" lawsuits, what they really mean are "lawsuits I don't like," in much the same way that "judicial activism" really means "I think the court got it wrong." It's an epithet, not a descriptive term, so it's only natural that folks deploying the epithet would show some selection bias in their analysis of the facts.

Thursday, December 13, 2007


In case anybody was naive enough to think otherwise, the Mitchell Report today blew away doubt that "America's Pastime" - Major League Baseball - is and has been riddled with steroid use, including by such top players as Roger Clemens, Juan Gonzalez, and (of course) Barry Bonds.

I've never been one to buy into the whole George Will "baseball explains life" bullshit, but I will say one thing for it - it's certainly intertwined with another American pastime: cheating.

Interesting Choice

I was once a member of the American Bar Association, but I let my membership lapse years ago and never felt the need to renew it. I'm sort of glad I did, as it has named disgraced former Attorney General Alberto "Fredo" Gonzalez as its Lawyer of the Year. It's even gone ahead and named his replacement, Michael Mukasy, as Lawyer of the Year for 2008. What the hell is going on here, exactly?

Upon further review, it appears that the ABA has taken a page from Time's Person of the Year issue, bestowing the honor on someone not for doing good but for simply having the greatest impact on the year past. Previous "winners" include Hitler, Khrushchev, Nixon (in back to back years, no less), and the Ayatollah Khomeini. With that in mind, Gonzalez makes sense as a choice for 2007. Still, for a profession so loathed by the public, is it too much to ask for the most well known trade association to celebrate good lawyers instead of bad?

If Ya' Gotta' Swing . . .

At least keep it under the radar, OK? This is pretty much a textbook example of how to draw attention to yourself:

Jim Trulock, 59, and his partner, 29-year-old Julie M. Norris, call themselves advocates for the swinging lifestyle. On weekends, they turn their home near Cedar Ridge Drive and Interstate 20 into the Cherry Pit, where guests can mingle, dance and have sex.

* * *

The Cherry Pit advertises on the Internet. The weekend parties reportedly draw as many as 100 guests.
That lead neighbors to complain and the city council passed an ordinance labeling sex clubs a public nuisance, citing excess traffic in the neighborhood and the possibility of sagging property values. That's almost surely a pretext for the fact that the neighbors didn't approve of how Trulock and Norris conducted their sex lives. Still, if my neighbor (who is a sweet little old lady and almost certainly not a swinger) had 100 people show up at her house every weekend, I'd be a little pissed, regardless of what they were doing.

Wednesday, December 12, 2007

Plus, He's a Bass Player!

Phone calls from God, endorsements from Chuck Norris - no wonder he's riding high in the Iowa corn:

But don't forget about the Mittster:

Tee hee.

Ma'am, Is That Ass Loaded?

From the "you can't make this stuff up" department, the tale of an odd domestic disturbance:

A Nitro woman was arrested for allegedly fighting with her boyfriend and keeping him against his will.

Constance Ann Hertel, 48, of Kanawha Avenue, had been arguing with her boyfriend for several hours Friday, and when the man tried to leave she wouldn't let him, according to a criminal complaint filed in Kanawha County Magistrate Court.

* * *

Nitro Police Patrolman T.A. Fouch said in the report that Hertel then pinned the man against the wall with her buttocks, and as he tried to free himself, she grabbed him around the head and scratched him across the chest.
Depending on the person, I'm fairly certain that would constitute assault with a deadly weapon!

Tuesday, December 11, 2007

Bloviator Bill Strikes Again

Well, the latest great threat to religious purity in this country - The Golden Compass - opened this weekend. In spite of topping the box office, it's opening weekend take failed to meet expectations. Why the poor start? Well, maybe folks in a fantasy mood went to see something else. Or, contrary to jedi jawa's experience, the generally poor to fair reviews just made people decide to spend their money elsewhere. Regardless, Bloviator-in-Chief Bill Donohue of the Catholic League, is crowing that his "boycott" of the film is paying off. He's being his typical abusive self about it, too:

Let this be a lesson to militant atheists like Pullman: keep your hollow beliefs to yourself.
Wow. Must be angling for a position in the Romney administration. FWIW, I'm still interested in seeing the flick (and reading the books), almost completely to stick it in Donahue's eye. It took me nearly 20 years to get around to watching another fundie-attacked movie, The Last Temptation of Christ, which was brilliant. I'm a patient man.

More Good News

Yesterday I blogged about the defendant friendly triple play from Supreme Court. Today, the hits kept on coming, this time from the Sentencing Commission. Last month, an amendment to the crack cocaine guideline went into effect that essentially lowers crack sentences across the board. For the technically minded - the amendment reset the drug weight ranges and base offense levels so that the same amount of crack now produces a base offense level that is two levels lower than before. The basis for the amendment, according to the Commission, was the inherent unfairness in the current guideline and the fact that it did not adequately represent the seriousness of the offense, particularly compared to the powder cocaine guideline. That amendment kicked in on November 1 and applies to anybody who gets sentenced thereafter.

The Sentencing Commission left open the question of whether the amendment would apply retroactively to defendants who had already been sentenced. Generally, folks whose cases are "final" (i.e., done with direct appeals, up to and including the Supremes) don't get the benefit of guideline amendments unless the Commission explicitly makes them retroactive, as has been done in the past for other changes in the drug guidelines. However, given the sheer numbers of people that would be effected, the Commission went slowly this time and had a lengthy public hearing on the issue last month.

Thankfully, the Commission has concluded that simple fairness requires retroactivity and voted unanimously today to make the amendment retroactive. This will go into effect in March of next year, which will give those of us in the defense community a little while to figure out how it's all going to work out. I haven't seen the Commission's policy statement regarding the amendment, but there will need to be some Booker application issues resolved in the early litigation.

Today's action by the Commission will result in some people being released from prison more quickly than they otherwise would have been, although it's not likely to be the flood of armed violent thugs portrayed by the Department of Justice at the Commission's retroactivity hearing. Nevertheless, they will be part of growing number of ex-cons being released from America's increasingly crowded prison system.

That makes this article (h/t SL&P) from US News and World Report particularly timely. It's about the difficulty ex-cons face in getting back into society and not ending up back in prison:

Getting cons to stay ex-cons has long been one of the most vexing challenges of the criminal justice system. One out of every 31 American adults is in jail, on parole, or on probation, and the central reality is this: Nearly everyone who enters the prison system eventually gets out. The problem is, most of those ex-offenders quickly find themselves back inside. Today, ending the cycle of recidivism has become an increasingly urgent problem as communities nationwide are forced to absorb record numbers of prisoners who also often struggle with addiction and other illness.
One example of the problems they face:
Building the skin of an airplane is a craft with little tolerance for failure. The rivets that bind the sheets of aluminum must be set cleanly, without burrs or scratches, because just one faulty patch of skin can rip apart an airplane in flight.

The instructors who teach these skills at the minimum-security Winfield Correctional Facility outside Wichita, Kan., have little tolerance for failure, as well. It takes years of good behavior for a prisoner to land a coveted spot in this class, which certifies participants as aircraft sheet metal workers. Yet, as good as they are, the inmates' skills don't guarantee them a job when they get out. Indeed, although subcontractors might accept them, none of the five airplane manufacturing plants that ring Wichita hire ex-felons.
Employment is particularly important:
Holding a job remains the best predictor of success for ex-cons, and employer surveys have found about 80 percent of ex-cons to be diligent, trustworthy, and dependable. Yet employers are still reluctant to hire them. They risk having employees who can be at worst violent and at best antisocial and reap few benefits in return. Employers are eligible for tax credits, and the federal government does bond former inmates up to a few thousand dollars, but small businesses often find the paperwork more trouble than it's worth.
The vicious circle that exists should be obvious: the best way for an ex-con to reintegrate into society is to find steady employment, but employers are reluctant to hire ex-cons. Unable to gain a toehold back in the mainstream of society, ex-cons drift back into old patterns of illegal behavior. In some cases, maintaining employment is a requirement of parole or supervised release and the failure to keep a job in and of itself will land the ex-con back in prison.

No politician will want for votes by being "tough on crime." But that's a front end strategy, not a long term solution. As the article makes clear, damn near everybody in prison will get out someday. It's to all of our benefit if they make a go of it the second (or third or . . .) time around.

Monday, December 10, 2007

1 . . . 2 . . . 3 - 3 Defense Wins!

In the criminal defense world, getting any good news out of the Supreme Court is a rare occasion. In fact, more often than not you have to shift into "finding the silver lining" mode when SCOTUS speaks. But today, the Court handed down a trio of pro-defense decisions, including two that may (let me stress that again - may) finally bring some order to post-Booker federal sentencing.

The most newsworthy decision of the day came in the Kimbrough case, dealing with the sentencing guidelines for crack cocaine. 20 years ago, Congress established a set of minimum mandatory sentences in crack cases that required a lot less crack to trigger than they did powder cocaine - 100 times the amount of powder to get the same sentence, in fact. The Sentencing Commission, in establishing the crack guideline, imported that 100-to-1 ratio. Ever since there have been howls of protest from defense counsel and others that the guidelines were fundamentally unfair and produced unjustifiably harsh sentences. The Commission even recognized that and urged various changes over the years that Congress rejected (an amendment producing a slight reduction in sentences just went into effect last month, finally).

In a post-Booker world, where the guidelines were allegedly "advisory," many folks argued that sentencing judges should bypass the guidelines and impose lesser sentences. While some sentencing judges eagerly took up the cause, all the courts of appeals shot them down. Today in Kimbrough, the Supremes sided with the sentencing judges and told the appellate courts (most specifically the Fourth Circuit, from which the case came) to allow them more freedom to ignore the guideline in certain cases.

The other biggie was a sort of companion case to Kimbrough, Gall, out of the Eighth Circuit. In Gall, the sentencing court decided that the defendant shouldn't get the guideline recommended 30+ months in prison and imposed a sentence of probation (tough on crime folks - before you freak out, read the opinion and see why). On appeal, the Eighth Circuit said that in what amounted to a 100% variance from the guidelines, there must be "extraordinary circumstances" which weren't present in this case. Again, the Supremes sided with the sentencing judge, holding that all sentences were to be reviewed with the same deferential standard, regardless of whether it was a guideline or non-guideline sentence.

The upshot of Kimbrough and Gall, if the appellate courts play along and the sentencing judges find some courage, will be that it will be very difficult for either a defendant or the Government to successfully appeal a sentence. While that will make my job somewhat more frustrating (not by much), it will probably work out better for our clients. And that's a good thing.

In amongst the guideline cases was the Watson decision, which dealt with whether a person "uses" a firearm when he trades drugs to get one. The upshot of that is a 5-year mandatory minimum sentence if convicted. While the court's decision - a unanimous one, by the way - is welcome, I don't think it will have anywhere near as much impact as the other two cases.

All in all, today was a good day to be a defender. Woot!

PS: For more on all of these cases, check out Sentencing Law & Policy or SCOTUSBlog.

Oh, Come On

Writing in today's USA Today, columnist Kathleen Parker tries to argue that Mitt Romney's religion speech last week was really successful and a "milestone in the service of reason and inclusiveness." Uh huh. Except for a few minor problems, as she admits:

In a big-tent speech clearly aimed at inclusiveness, Romney left himself open to criticism by leaving out non-believers. A single sentence recognizing that tolerance for all faiths also includes tolerance for the faithless seems an unwise oversight. As explained by someone close to Romney, however, there was never any planned tactic to exclude non-religious people. Implicit in the idea of religious liberty is that one freely chooses to be religious or not. Also assumed was that even non-believers would respect America's tradition of religious pluralism.
Oh, I call bullshit on that. Remember, this is the same man who said non-believers can't be president and who was introduced by an ex-president who thinks we're not real Americans. Do I think he set out to tweak the non-believers? No, but I think Mitt believes that we're easily marginalized and forgotten about.

In addition, I'm not sure the assumption from the Romney peons is correct - this non-believer respects the country's respect for the rule of law and the separation of church and state. Without those, I'm not so sure we'd be too concerned about religious pluralism - multiple persecutors aren't any better than a single persecutor.

Sunday, December 09, 2007

High School Magistrates

Over at TalkLeft, TChris discusses the state of small-time justice in Mississippi. There, as in West Virginia, judges at the lowest level of the justice system - they call them justice courts, we call them magistrate courts - are required to only have a high school education. No higher education and no prior legal training or experience. Is that really a good idea? I agree with TChris that it's not and it's time for Mississippi and West Virginia to reform their systems.

Another Romney Howler

There’s already been a lot of virtual ink spilled on Mitt Romney’s would-be JFK moment at Bush the Elder’s Texas A&M outpost this week (I agree with Raging Red's observations, BTW). Anybody who’s surprised by Mitt’s exclusion of non-believers from his coalition of “Americans” just hasn’t been paying attention (an opinion held by his host, BTW, who said "I don't know that atheists should be considered as citizens, nor should they be considered patriots. This is one nation under God."). And I know some folks are surprised that he didn’t use the opportunity to do more to explain why his particular Mormon brand of woo isn’t incompatible with the fundy Christian woo of the GOP base with which he’s trying to connect (as if their woo was somehow less ludicrous than his).

Rather than harp on those, I want to point out another whopper from his speech that largely has flown under the radar:

Americans do not respect believers of convenience. Americans tire of those who would jettison their beliefs, even to gain the world.
Is he serious? The man who has ditched almost every position he held while governor in Massachusetts to pander to the GOP religious wing actually said that (which, ironically, his host also did!)? Good lord, the attack ads for his opponents practically write themselves!

Interesting Stocking Stuffer

Looking for a Christmas gift for that hard to buy for legal or history geek in your life? Head on over to Sotheby's, where you can bid on an original copy of the Magna Carta, one of only 17 still in existence. Bring your best credit card, tho' - it's expected to fetch more than $20 million dollars when it goes on the auction block on December 18. I wonder if they'll ensure shipment before Xmas morning?

Wednesday, December 05, 2007

I'm Amazed She Remembers to Breathe

Granted, I've never watched The View, but it's hard to avoid the occasional torrents of stupid that pour forth from the show. The newest hostess, Sherri Shepherd, made a big splash when she couldn't commit to a conclusion that the world is round. Apparently eager to prove that such stupidity wasn't a fluke, she released this doozy yesterday:

That's right- nothing in history came before Christians. Putting aside the fact that great empires rose and fell before Jesus was even a gleam in somebody's eye, wasn't Jesus a Jew? Didn't he allegedly fulfill a bunch of prophecies set forth in the Old Testament? In fact, isn't the book about Jesus called the New Testament? You'd think that would mean something, even to someone as dense as Shepherd.

Get a Life, People! (Football Edition)

Jeez, I thought the folks making death threats against the late Leona Helmsley's dog were the cream of the jacknut crop. In that case, at least the dog doesn't know what's going on. On the other hand, how about the assholes making similar threats against WVU kicker Pat McAfee? McAfee's sin is that he missed two short field goals against Pitt last weekend. Would those have helped beat Pitt? You bet. Is that the reason why we lost that game? Not really.

But even if he was solely to blame, this is unacceptable:

'The McAfee family has received support from the TRUE Mountaineer fan,' [McAfee's father] said in his e-mail. 'We have received countless phone calls and e-mails expressing support for Pat at this tough time.

'Pat has not. He has received actual death threats and people telling him they wished he was dead. E-mails, text messages and other ridiculous behavior. His house and car have been vandalized. Groups of 'fans' have stood outside his house chanting negative things. Things have been said to his girlfriend. I am asking that this be stopped.'
Sadly, the elder McAfee's onto something when he says "[t]his is the type of behavior you would see from rabid soccer fans in Europe." It's just a game, folks. More than that, for all the money in college sports, it's still played by kids. Pat McAfee isn't going to cash in on a big NFL payday. He's going to get a degree and go out and have a normal life. He shouldn't be treated to such ugliness because he had a bad day.

Tuesday, December 04, 2007

Felony Murder and Causation

I've blogged before about the felony murder doctrine, which holds that a person is liable for murder (usually first degree) if someone else dies while he commits some other violent felony. Today's New York Times discusses the felony murder rule and its application to accomplices who aren't involved in the underlying offense and asks whether the United States should join the rest of the common law world and just do away with the felony murder rule altogether.

The "killer" in question in the article is Ryan Holle, a 25-year old Florida man doing a sentence of life imprisonment without the possibility of parole. His crime? He loaned a friend his car - as he'd done numerous times before - with some idea that the friend and some other guys were going to go rob a drug dealer. The friend admitted that someone might be home when the broke in, but nobody intended to kill anybody. As it happened, the daughter of the drug dealer got caught up in the break in and was killed. All of the other guys got life in prison, too (the state unsuccessfully sought the death penalty against the actual killer.

The state's theory as to why Holle should bear the full brunt of a murder conviction was numbingly simple - without the car, there would have been no murder. Aside from the obvious falsity of that theory (the robbers wouldn't find another car? they wouldn't walk the 1.5 miles to the house? bullshit!), it points to an obvious disparity in this case:

Terry Snyder, whose daughter Jessica was the victim in Mr. Holle’s case, said Mr. Holle’s conduct was as blameworthy as that of the man who shattered her skull.

'It never would have happened unless Ryan Holle had lent the car,' Mr. Snyder said. 'It was as good as if he was there.'

* * *

Witnesses described the horror of the crime. Christine Snyder, for instance, recalled finding her daughter, her head bashed in and her teeth knocked out.

'Then what did you do?' the prosecutor asked her.

I went screaming out of the home saying they blew my baby’s face off,' Ms. Snyder said.

The safe had belonged to Christine Snyder. The police found a pound of marijuana in it, and, after her daughter’s funeral, she was sentenced to three years in prison for possessing it.
So, let's get this straight - providing the car but otherwise having no other connection to the offense merits life, but providing the object of the robbery only merits three years?

That highlights the inherent problem with the felony murder rule, in my opinion. It is divorced from the traditional fault-based scheme of homicides that provide different levels of punishment depending on the killer's state of mine. The felony murder rule treats all defendants as supremely culpable when that is rarely (if ever) the case.

Is Rolle responsible in some fashion for that girl's death? Yes, but no more so than his pot-stashing mother and certainly less so than the guy who actually snuffed out her life. One size fits all justice is never a good thing, particularly when it results in locking somebody up and throwing away the key.

Get a Life, People!

As I wrote a few months ago, the big winner in Leona Helmsley's will was her dog Trouble, who inherited (or, more correctly, a trust was set up to benefit) to the tune of $12 million. There's lots to criticize in that bequest - the size of it, that it was done to the detriment of Helmsley's human heirs, etc. But the blame surely has to rest with the deceased Queen of Mean. Which makes this particularly stupid:

A dog that inherited $12m (£5.8m) from late New York hotelier Leona Helmsley is in hiding after it was targeted by death threats, US media say.

Trouble, a white Maltese that belonged to the billionaire until her death in August, was flown by private jet to Florida, the New York Post reported.
The dog has received more than 20 death threats and has been removed to an "undisclosed location." Perhaps Dick Cheney will take her out for walkies (and she'll bite him on the ass).

Monday, December 03, 2007

The BCS Mess

After last weekend, it's understandable that nobody is happy about the upcoming college bowl season. Nearly everybody's got a gripe on some level and the call for a playoff (of some sort) is at an all time high. Will it matter by the time the games roll around? I doubt it. Nevertheless, a few thoughts:

We choked. No ifs ands or buts about it, WVU sucked royally Saturday night. Hopefully, by the time we take the field for the Fiesta Bowl against Oklahoma, Pat White will be healthy and in top form. Nonetheless, I hope that Rich Rodriguez takes the time between now and then to figure out a Plan B to use next time that run-based spread offense doesn't work. We spent too many games relying on White's legs to win games and once those were gone, we were toast.

Get over the "two best teams" conceit. Over and over again this weekend people were arguing - Georgia and USC fans, mostly - that the BCS title game match up should involve the "two best teams" in the country. Usually the argument went along the lines of "c'mon, do you think Ohio State is one of the two best teams in the country?" What those folks seems to (conveniently) overlook is that championship games rarely - if ever - match up the "two best teams." How many times as a top seed in the playoffs been knocked off before the final? Playoffs are about survival, not on-paper-superiority. Case in point - Euro 2004 - almost nobody, even their own fans, think that Greece was the best team in that tournament, yet they are the defending champions of Europe. If all the BCS matchup is about is putting the "two best teams" on the field together, the regular season essentially becomes an exhibition.

Whither Hawaii? The Warriors are the BCS nightmare team of the year: the undefeated mid-major team that wants to crash the big time party. At 12-0, they got dumped in the Sugar Bowl against 2-loss didn't even win their division in the SEC Georgia. Do they deserve a shot at the big game? This season, I say yes. I know, their schedule, particularly out of conference is weak (but, as I understand it, that's partially because Michigan State pulled out of a date and left Hawaii scrambling for replacements) and they didn't exactly blow everybody away (San Jose State and LaTech in OT? Yikes!). But they have one of the most potent offenses in the country and the WAC, when allowed into the BCS, has done well. And, in this of all years, when no major conference champion went undefeated and only one managed one loss, they have done what nobody else can and win all their games. If an undefeated WAC team doesn't get in this year, they never will. In which case, let's just cut the mid-majors off from I-A altogether.

Having said all that, I think the actual championship game is about the best matchup they could get (putting aside Hawaii's claim, of course). OSU is the only one-loss conference champion (sorry, Kansas). Of the two-loss conference champions (sorry, Georgia), WVU has two ugly losses, and one of VaTech's losses was to LSU, who beat them like a rented mule. Between LSU and Oklahoma I don't see much difference.

Religion and Politics - Where It Went Wrong

Today's USA Today has an interesting op-ed, from David Domke, a co-author of The God Strategy: How Religion Became a Political Weapon in America, about, well, the intersection of religion and presidential politics. Specifically, he argues that the turning point for religion in politics - from fairly minor consideration to driving concern - came in 1980 during Reagan's speech to the GOP national convention.

That was set up by Jimmy Carter's 1976 campaign, when he played the evangelical card in the campaign but kept that largely separate from his actual governing (you know, like the Constitution requires). Evangelicals, energized by the reach out but angered by the lack of action fell under Reagan's spell and haven't looked back since. As a result, presidents of both parties have aggressively courted the religious vote:

Reagan's 1980 convention address changed the nature of these speeches. From 1952, when acceptance addresses began to be televised live, through 1976, Democratic and Republican nominees invoked God on average 2.4 times per address and included common faith terms 11.8 times per address.

In contrast, since 1984 the GOP nominee has invoked God an average of 5.2 times per address — more than doubling the previous level — and included 19.5 faith terms. That's a 65% increase. Among Democrats, Walter Mondale in 1984 and Michael Dukakis in 1988 made only a handful of religious references, but beginning with Bill Clinton in 1992, the party's nominees have averaged 4.3 God invocations and 16.5 faith terms per address — increases of 77% and 40% over pre-1980 levels. Presidential candidates are now afraid of being seen as the apostate in the room. They use these speeches to signal that they're not.

Another tactic is for politicians to make "pilgrimages" to speak before audiences of faith. From FDR through Carter, presidents averaged 5.3 public remarks before overtly religious organizations in a four-year term. Beginning with Reagan through six years of George W. Bush's presidency, this average more than tripled to 16.6 per term. For example, since 1981 GOP presidents have spoken 13 times to the National Association of Evangelicals or the National Religious Broadcasters Association, four times to the Knights of Columbus, and four times to the Southern Baptist Convention.
In addition, Clinton spoke in churches more than Reagan and the two Bushes combined! That, in Domke's mind (and mine), isn't a good thing:To grasp what is at stake, we might recall another presidential campaign pilgrimage:
John Kennedy's address before conservative Protestant clergy in September 1960. Unlike current candidates, the Catholic Kennedy promised a White House in which decisions would be made 'without regard to outside religious pressure or dictates.' Such a presidency was essential, he said, because 'today, I may be the victim, but tomorrow it may be you — until the whole fabric of our harmonious society is ripped apart.'

It was a winning message then. It's one desperately needed today.
Indeed. And particularly timely, as the paper also reports that GOP hopeful Mitt Romney is poised to give a major speech on his Mormon faith this Thursday in Texas:
'Gov. Romney understands that faith is an important issue to many Americans,' campaign spokesman Kevin Madden said. 'He personally feels this moment is the right moment for him to share his views with the nation.'

* * *

Madden said Romney made the decision last week. The speech gives him a chance to 'share his views on religious liberty, the grand tradition religious tolerance has played in the progress of our nation and how the governor's own faith would inform his presidency if he were elected,' Madden said.
The fact is that Romney is starting to feel the heat from Mike Huckabee, who is wooing the religious conservatives who still aren't quire sure that Mormon Mitt is their kind of person. All of which is highly ironic, given Mitt's own history of religious bigotry.

NaNoWriMo Wrap Up

December is upon us, which means National Novel Writing Month (aka "November") has come and gone and I am a


Yes, I crashed and burned when it came to making the NaNoWriMo goal of producing 50,000 words in 30 days. I finished up with a sluggish 19,433 words - not even halfway home. Still, I'm reasonably pleased with my performance during the month, because:

  1. I had fun.
  2. I actually wrote something - I've had it in my head to try and write stuff for years, but only now got off my ass and did something. The best I've managed before - a short story - was a whopping 4835 words.
  3. I had fun.
  4. I discovered that I can produce something novel-like by making consistent small steps on a regular basis.
  5. I had fun.
  6. I discovered that a lot of the questions/roadblocks I'd perceived before that kept me from doing something - how do I know what comes next? what kind of characters does this story need? I need X to happen - how do I write it? - can be worked out just by writing and pushing through them.
  7. Did I mention that I had fun?
The bottom line is - I can do this, it'll just take me a while. Which is why I knocked out another little hunk today. And plan to tomorrow and tomorrow . . .

Teddy Bear Fatwa Comes to An End

Thank goodness, something vaguely like reason has prevailed in the case of a British teacher imprisoned in Sudan because she let he class name a teddy bear "Muhammad." After being convicted last week and sentenced to 15 days in prison and deportation, the teacher was released today after the Sudanese President granted her a pardon. Good on him for stepping up and doing the right thing.

Still, four days in custody for "insulting religion" is four days too long.