Album of the Day

Aqualung, by Jethro Tull (1971): Aside from the most famous opening riff in rock, this album has a lot going for it. It's not quite a concept album, although side 2 takes several broadside swipes at organized religion ("My God" in particular). Side 1 is a series of character sketches, most famously of the titular derelict, who may or may not bear some relation to Charleston's famous street denizen of the same name. The more muscular classic rock tracks are set off nicely by some more pastoral bits. A good listen, overall, if not quite a match for Thick as a Brick.

Representing the Worst of the Worst

At TalkLeft over the weekend, Jeralyn had a post about long-time defense attorney Mickey Sherman's new book, How Can You Defend Those People? In it, he recounts, among other things, conversations he's had with other defense attorneys (including Jeralyn) about what kind of cases they will not handle. Jeralyn had a sample of the responses in her post, which range from the practical (Sherman won't do child rape cases, because he doesn't think he can effectively represent those defendants) to the principled (Ron Kuby won't do hate crimes, David Chesnoff won't represent snitches).

One caveat that is explicit in these responses but not explicitly set out - these folks are all private attorneys and can pick and choose who to represent. PDs are in a different situation and can't generally turn down representation on such grounds. Or at least I've never seen it happen. Perhaps that's why I can't, right off hand, think of a defendant I wouldn't defend on some sort of principled ground. Obviously, if I couldn't do the job for some reason, I'd have to step away. But I have a hard time imagining when that would happen, aside from situations where a friend or loved one was the victim or defendant.

Not Exactly Muskrat Love

You just don't get crimes like this in the Southern District of West Virginia:

A New Zealand man who claimed he was raped by a wombat and that the experience left him speaking with an Australian accent has been found guilty of wasting police time.

Arthur Cradock, 48, from the South Island town of Motueka, called police last month to tell them he was being raped by the marsupial at his home and needed urgent assistance.

Cradock, an orchard worker, later called back to reassure the police operator that he was all right.

'I’ll retract the rape complaint from the wombat, because he’s pulled out. Apart from speaking Australian now, I’m pretty all right you know. I didn’t hurt my bum at all.'

He pleaded guilty in Nelson District Court to using a phone for a fictitious purpose and was sentenced to 75 hours’ community work.

If I ever get to write a brief that involves sexual assault by marsupial and a funny accent as a side effect, I'll retire from the practice of law and find something a little more sane to occupy my time.

Album of the Day

Oxygene, by Jean Michel Jarre (1976/2007): Lately, I've decided to explore electronic music a little bit. Obviously, progressive rock always relied on electronic gizmos, and I am a keyboard player, after all, so you'd think it would be a natural thing to do. Still, I didn't know much about the more purely electronic synth-based stuff.

This seemed like a good place to start, as Oxygene was the seminal work of an electronic music pioneer. On top of that, he rerecorded it last year with modern studio equipment, but still using a dazzling array of vintage 70s synths. As if that weren't enough, he got three other guys to come in and do the whole thing live, with a few improvisatory detours along the day, and filmed it for an included DVD. After a few listens/viewings, I'm really getting into it. On this album, at least, melody takes a back seat to washes of sound, although several parts are propelled by electronic percussion and sequenced parts that gives it some form.

Intresting Graph

Via Volokh, here's an interesting graph courtesy of the Gallup folks. It tracks the answers to a question they've asked for 70 years:

Are you in favor of the death penalty for a person convicted of murder?

In 1937, 59% said yes, while 38% said no. Last year, the numbers were 69% and 27%, respectively. In the 1990s the numbers were the furthest apart, with 80% in favor and 16% against. In only one survey, from 1966, did the yeas (42%) get out polled by the neas (47%).

I agree with Orin over at Volokh that the question itself isn't particularly helpful because it it open to so many interpretations, but the fact that it was asked in the same way over all that time provides an interesting insight into public opinion on the issue.

Album of the Day

Dark Matter, by IQ (2004): IQ had a career that initially paralleled fellow neo-proggers Marillion, first helping to establish the genre then trying to break out to a broader rock audience. They both lost their original vocalist along the way. Neither band made it stick. Where Marillion kept the new singer and forged an evolving sound that slowly moved away from the neo paradigm, IQ got the old singer back and retreated to the neo style they new best. In the years since Pete Nichols returned to the band, IQ have refined and tweaked a basic sound into a finely polished item. As a result, they're at the top of the neo heap by this point. To a certain extent, they've been stuck in a bit of a rut, but they inhabit it awfully well.

MLS al Sud

As I've mentioned before, the Major League Soccer season kicks off this weekend. In anticipation, the New York Times takes a look at where the new faces in the league are coming from. With one high profile exception, teams have used their increased financial flexibility to bring in younger talent from South and Central America, rather than older Europeans on the down slope of their careers.

I think that's a good development. It will take years - hell, decades - before MLS becomes a legitimate destination for rising European talent. I think the best bet for the league is to become the preeminent destination for young talent in CONCACAF and South America. There's a lot of it to be had and MLS, even with low salary caps, can provide some concrete benefits over leagues elsewhere.

Art Brings Truth

Via Appellate Law & Practice, here's a mildly interesting story about some recent artistic additions to the federal courthouse in Boston. Well, "artistic" is in the eye of the beholder, I guess - it's a series of large fiberglass and aluminum panels each painted a different solid color. According to the story, it's the most valuable piece of art in Boston by a living artist. That doesn't necessarily impress:

'This is a gorgeous building, and every time I come in here I think that they belong in a kindergarten,' said Mala Rafik, a Boston civil litigation attorney, shifting her gaze from the courthouse’s breathtaking curved glass wall to a pair of blue and orange panels. 'They’re just colored blocks.'

* * *

Ray Cheng, a longtime cashier at the courthouse cafe, calls them baffling and clutched his chest in mock horror when he heard how much they cost.

'Oh, my God, if it were me, I’d sell it,' he said.

* * *

Robert A. George, a Boston criminal defense lawyer, has barely noticed the panels through the years. 'I’m heading straight to Home Depot so I can make my masterwork on a piece of plywood tonight,' he said.

The idea was to brighten up the joint with the help of several hundred thousand dollars of your money. And somebody took notice:

Whether one likes modern art or not, Kelly’s panels add a dash of cheer. As one court officer standing near the courthouse entrance put it, 'It’s nice to have some paintings here, because there’s so much sadness. There’s a lot of people going to jail.'

Yes, indeed, there are.

Album of the Day

Book of Kells, by Iona (1992): I have a list, on my computer, of albums I need to own. It's a couple of pages long and gets added to regularly. It's been around for a while and sometimes I forget about something that's on there until I dig it back out. I went to the list when filling out an Amazon order and Iona was on top. They're a folk/Celtic sounding group with symphonic prog overtones. I'd heard good things, so I wanted to check them out. Unfortunately, it does very little for me. It sounds like dull ambient new agey stuff, for the most part. The female vocalist is very good and there's some nice bits here and there, but overall it failed to make an impression on me. Oh well - strike one from the list.

McCain on Foreign Policy

There a lot of disagreements that I have with John McCain. But I'll give him credit where due and today's big speech on foreign policy had a couple of interesting bits in it.

First, he:

said that the United States should “close Guantanamo and work with our allies to forge a new international understanding” on how to treat detainees determined to be dangerous.

That would be a huge step in the right direction. I'd love to hear both Obama and Clinton make the same pledge, as a signal to the rest of the planet that we're not completely out of our minds.

The other interesting thing he said was this:

Invoking his family’s military history — his father and grandfather were admirals — and his own service in Vietnam, Mr. McCain said: 'I detest war. It may not be the worst thing to befall human beings, but it is wretched beyond all description.'

Nevertheless, he said: 'We have incurred a moral responsibility in Iraq. It would be an unconscionable act of betrayal, a stain on our character as a great nation, if we were to walk away from the Iraqi people and consign them to the horrendous violence, ethnic cleansing and possibly genocide that would follow a reckless, irresponsible and premature withdrawal.'

When thinking about the war and what needs to be done next, I get tied up on knots.

On the one hand, the profound wastes of lives, money, and resources thrown away over the past five years makes me want to scream and get us the fuck out right now. On the other hand, McCain's got a point - we profoundly messed that country up and we have some responsibility to try and help make things right over there.

I think where I'd part company with McCain is that I don't believe that a US-dominated military solution is possible and that as long as we're there and seen as occupiers things won't get appreciably better. A more multinational diplomatic solution is needed, but I don't have any good ideas on how to implement that. Recognizing that (a) we fucked up going over there in the first place and (b) we need help to get out would be a good first step, but I'm not sure anybody who is kissing up to Duhbya can do that.

Be Sure to Check out Your Significant Other

Consider the plight of an unnamed Kanawha County man. He was in the local regional jail and wanted to get out on home confinement. To do that, he needed a place to go that was acceptable to the powers that be. He listed his girlfriend's home in Dunbar, which would be fine, except:

A man trying to exchange jail time for home confinement at his girlfriend's residence saw his hopes dashed.

A background check resulted in the woman also being locked up.

Police arrested a Dunbar woman on 150 outstanding warrants, a mix of misdemeanor and felony charges ranging from uttering to conspiracy and computer fraud.

* * *

She was served with 94 felony warrants and 56 misdemeanors, ranging from uttering and fraudulent schemes to conspiracy and computer fraud, the press release said.

Among the charges, Brisendine is accused of being involved with a group of people who opened false bank accounts in the area and used them to commit various fraudulent schemes, the press release said.

All that and she's only 20. Quite a catch there, unnamed guy that the police mercifully won't identify!

Talk About Timing

Yesterday I blogged about questions regarding Hillary Clinton's prayer group, The Fellowship. Now comes word that, in Hillary's mind, it's fair game to probe her about that:

Sen. Hillary Rodham Clinton, in a wide-ranging interview today with Pittsburgh Tribune-Review reporters and editors, said she would have left her church if her pastor made the sort of inflammatory remarks Sen. Barack Obama's former pastor made.

'He would not have been my pastor,' Clinton said. 'You don't choose your family, but you choose what church you want to attend.'

OK, Hillary, let's hear it: what drove you to choose to associate with a group that holds the belief that God chooses our leaders? Sort of makes superdelegates look like wimps, huh?

Album of the Day

Intersections [1985-2005], by Bruce Hornsby: With several studio albums, scads of live work, and lots of collaborations under his belt, it was only natural for Bruce to cobble together a pretty neat boxed set. Disc 1, jokingly titled "Top 90 Time," covers the "hits," but often in versions very different from what ended up on the radio. The 15-minute solo piano version of "The Way It Is" that starts things off sets the tone. Disc 2 focuses on solo work, collaborations (with, among others, Branford Marsalis, The Grateful Dead, and The Nitty Gritty Dirt Band), and film songs. It's also got a live version of "Crown of Jewels," recorded at a concert I attended. Discs 3 & 4 are titled "By Request," cataloging fan and artist favs. A decent amount of those discs are live versions, but not as many as I'd hoped for. Still, it's a cool way to round things out and makes a nice compliment to Here Come the Noisemakers. There's also a DVD full of music videos and assorted live performances. If you're in any way a fan of Bruce's latter-day work, you want this set.

You Think Ads Are Bad Now?

There's an episode of Futurama where Fry has an ad for LightSpeed Briefs beamed into his head. He's appalled:

Leela: Didn't you have ads in the 21st century?

Fry: Well sure, but not in our dreams. Only on TV and radio, and in magazines, and movies, and at ball games... and on buses and milk cartons and t-shirts, and bananas and written on the sky. But not in dreams, no siree.

Looks like we won't have to wait for 3000 to get that treatment:

Trolling down the street in Manhattan, I suddenly hear a woman's voice.

'Who's there? Who's there?' she whispers. I look around but can't figure out where it's coming from. It seems to emanate from inside my skull.

Was I going nuts? Nope. I had simply encountered a new advertising medium: hypersonic sound. It broadcasts audio in a focused beam, so that only a person standing directly in its path hears the message. In this case, the cable channel A&E was using the technology to promote a show about, naturally, the paranormal.

I'm a geek, so my first reaction was, 'Cool!' But it also felt creepy.

Creepy is only the beginning. As the Wired article points out, the question of whether we have any right to privacy in our own mind will be a critical question in the coming decades.

Sycophany on the Straight Talk Express

John McCain is famous for his good relationship with the press. That's all fine and dandy to a certain extent, but when will the riders of the Straight Talk Express remember that the value of a free press is that it can confront those who would be king? Afflict the comfortable and all that.

As Glenn Greenwald over at Salon points out, the press is bending over backwards to avoid calling out McCain for his recent conflation of Iran and al-Qaeda. He quotes Chuck Todd from this past Sunday's Meet the Press:

He's got enough of that in the bank, at least with the media, that he can get away with it. I mean, the irony to this is had either Senator Clinton or Senator Obama misspoke like that, it'd have been on a running loop, and it would become a, a big problem for a couple of days for them.

As Greenwald points out:

But Todd's admission that journalists protect McCain because they're convinced he's a true expert in national security is nonetheless extraordinary because it is clearly what journalists -- by their own admission -- are doing.

The reaction, or lack thereof, is an interesting contrast to how Gerri Peev of The Scotsman handled the Samantha Power situation. Remember that Peev reported Power's comment that Hillary Clinton was a "monster," even though Power quickly added "that is off the record." In talking about the matter afterwards, Peev said (via Greenwald):

[TUCKER] CARLSON: What -- she wanted it off the record. Typically, the arrangement is if someone you're interviewing wants a quote off the record, you give it to them off the record. Why didn't you do that?

PEEV: Are you really that acquiescent in the United States? In the United Kingdom, journalists believe that on or off the record is a principle that's decided ahead of the interview. If a figure in public life.

* * *

CARLSON: Right. But I mean, since journalistic standards in Great Britain are so much dramatically lower than they are here, it's a little much being lectured on journalistic ethics by a reporter from the "Scotsman," but I wonder if you could just explain what you think the effect is on the relationship between the press and the powerful. People don't talk to you when you go out of your way to hurt them as you did in this piece.

Don't you think that hurts the rest of us in our effort to get to the truth from the principals in these campaigns?

PEEV: If this is the first time that candid remarks have been published about what one campaign team thinks of the other candidate, then I would argue that your journalists aren't doing a very good job of getting to the truth. Now I did not go out of my way in any way, shape or form to hurt Miss Power. I believe she's an intelligent and perfectly affable woman. In fact, she's -- she is incredibly intelligent so she -- who knows she may have known what she was doing.

As Greenwald points out, Carlson lets the cat out of the bag a bit by emphasizing the value American journalists put on being part of the "in" crowd. There's certainly a fine line to tread, but most of McCain's kid glove reporters seem to have crossed over it long ago.

This Is Sleazy, Too

Back in January, I criticized Markos at DailyKos for trying to organize Democrats in Michigan, where that party's primary was supposedly meaningless, to cross party lines and vote for Mitt Romney in the GOP primary. The theory was that in handing Romney a much needed victory, it would keep the GOP in fits trying to sort out its nominee.

Funny how things work out. Now that the GOP nomination is settled and the Democratic race is off on the long march, one of their beloved bloviators is trying the same tactic. Via TalkLeft, it appears that Rush Limbaugh had launched something called "Operation Chaos," which encourages Republicans to switch registrations to vote in Democratic primaries and vote for Hillary Clinton, on the theory that she will be easier to beat in the general election. As Wired reports, Rush's dittoheads aren't exactly subtle, bragging about falsely swearing about the reasons for switching parties. Technically, it's probably a violation of Ohio election law, but it would be hella difficult to prove (and possibly unconstitutional).

Regardless of the legality of Rush's operation, it's just as sleazy as Markos's Michigan/Romney gambit. As I said back then:

This is precisely the kind of "politics as sport" that turns voters off from the entire process. It places "team loyalty" over ideals of fair play. For the record, the problem is not that Dems would vote in the GOP primary -the dumbass open primary system ensures that - it's the attempted coordination attempting to influence the race. It's perfectly legal (again, thanks to those open primaries), but not at all ethical, in my opinion. And the argument that all's fair because the GOP has done it before doesn't wash - we're supposed to be better than that, right?

Album of the Day

Here Come the Noisemakers, by Bruce Hornsby (2000): When I was talking about Genesis live a few weeks back, I mentioned that they tend to stick pretty close to the studio material. Bruce is pretty much the opposite, reworking, restyling, and extending pretty much everything. What's really impressive, however, is that no matter how far a field Bruce and the band wander, they never lose touch with the core of the song. Given Bruce's song writing prowess, it would be foolish to do otherwise, but it's a fine line to tread without going over. The one exception is "The End of the Innocence," originally recorded with Don Henley. For some reason, that tune live just sits there like a bump on a pickle, ever time I've heard it I wish he'd give it a decent burial.

Looking In Hillary's Religious Closet

Over at Muze's place in the comments, I mentioned that I hoped that one good thing to come out of the furor over Barack Obama's pastor would be a good examination of the religious loons surrounding the other candidates. In order to do my part, I'll pass along this not really new article from Mother Jones about Hillary Clinton's membership in "The Fellowship." What is The Fellowship?

When Clinton first came to Washington in 1993, one of her first steps was to join a Bible study group. For the next eight years, she regularly met with a Christian "cell" whose members included Susan Baker, wife of Bush consigliere James Baker; Joanne Kemp, wife of conservative icon Jack Kemp; Eileen Bakke, wife of Dennis Bakke, a leader in the anti-union Christian management movement; and Grace Nelson, the wife of Senator Bill Nelson, a conservative Florida Democrat.

Clinton's prayer group was part of the Fellowship (or 'the Family'), a network of sex-segregated cells of political, business, and military leaders dedicated to "spiritual war" on behalf of Christ, many of them recruited at the Fellowship's only public event, the annual National Prayer Breakfast. (Aside from the breakfast, the group has 'made a fetish of being invisible,' former Republican Senator William Armstrong has said.) The Fellowship believes that the elite win power by the will of God, who uses them for his purposes. Its mission is to help the powerful understand their role in God's plan.

Say what you want about Jeremiah Wright's tirades, this is some scary shit. So scary, in fact, I'm tempted to think that it's not quite accurate. However, according to this current article in The Nation, the author is a former member who is getting ready to release a more detailed book about the group. I'm inclined to think there's something to it. At the very least, I'd like to see Hillary explain it.

And, just so the GOP doesn't feel left out, what about the Moonies?!

UPDATE: Via Dispatches from the Culture Wars, here's a handy chart (from the author of Bad Moon Rising) comparing Wright and Moon.

Amen, Anonymous Prophet

I don't like baseball. There, I've said it. I think it's boring, the season lasts too damn long, and it monopolizes too much of the sports landscape during the summer months. But, I realize that is an unpopular opinion and reasonable people disagree, which is fine - whatever rocks your boat, of course. But it annoys me to no end when some pompous windbag tries to argue that baseball is the perfect metaphor for life or the United States or anything else. Which is why I was tickled by this comment to this post over at Concurring Opinions by "ex-baseballer":

The US has an unhealthy obsession with baseball, but few manifestations of it as unhealthy as when intellectuals try to wax eloquent about it. See, for example, the Justice Blackmun baseball masturbation opinion for the Supreme Court.

Also, most of the advantages identified in the post aren't unique to baseball. They also describe chess and a bunch of other things. The uniqueness of baseball comes from the fact that it's low-intensity and boring and has more in common with golf or croquet than with basketball/football/hockey, yet people insist that it's a sport.

Also, I'm not sure what this business is about 'all sorts of abilities can find a place somewhere...' If your abilities don't include throwing and catching, you're pretty much out of luck. Baseball players nowadays are either big and strong like Barry Bonds, fast and agile like Ichiro, some combination of both, or they're pitchers. Every other 'sport' has a roughly equal number of preferred body types. Basketball needs Kobes as much as it needs Shaqs.

For whatever reason, baseball has become part of American culture in a way that no other sport is. Because of that, there will always be a group of people who think that it's some kind of transcendent embodiment of all that is right and good in the world. Few things trigger the gag reflex more quickly than when these people speak up about it.

Amen, brother.

Did I mention that the new Major League Soccer season kicks off on Saturday?

Album of Last Friday

Legend, by Henry Cow (1973): Henry Cow is one of those groups that you always hear talked about in frightening terms - "weird," "avant garde," etc. Heck, they're pretty much the genesis of the Rock in Opposition movement, after all. Which is why I was a bit surprised - pleasantly, I have to say - at how "normal" (in prog terms, mind you) their debut album is. It takes what was by then a distinct Canterbury sound and turns it on its ear. There's definitely some more out there bits, but for the most part it's really not the kind of music you'd use to clear a room. I enjoy it quite a bit, but it's never made me wonder what happened next to wander into their more experimental phases.

Album of the Day

The Rotters Club, by Hatfield and the North (1975): The other day over at Progressive Ears, someone was arguing that Phil Miller was the only guitar player who would have worked with Hatfield and the North. Listening to this album a couple times in the days since, I think he's right. Stylistically, HatN have a very light touch, and the typical glory seeking guitar hero would have ruined that balance. Miller's deft touch allows his guitar to dance on top of, around, and in between Dave Stewart's tasty keyboard work as a perfect compliment. When he comes to the fore, it works musically. Miller's playing is just one part of this brilliant prime slice of Canterbury prog.

The First Set of Numbers

With the Democratic presidential race still too close to call, West Virginia is in a position where our votes may actually count for something this time around. In fact, the past two days has seen both Hillary Clinton and Barack Obama make appearances in the Charleston area (one of my coworkers got holed up with Obama in a downtown eatery today, in fact).

With that in mind, we've gotten our first poll of the race in WV, courtesy of Rasmussen Reports. For the Obama fans, it ain't pretty:

Looking down the road to May 13, Senator Hillary Clinton holds a huge lead over Senator Barack Obama in the West Virginia Presidential Primary. The first Rasmussen Reports telephone survey of the race shows that Clinton attracts 55% of the Likely Democratic Primary Voters while Obama is supported by 27%. Eighteen percent (18%) are not sure.

* * *

By a 48% to 31% margin, the West Virginia voters believe Clinton will be the stronger general election candidate against John McCain.

Note, however, that this survey was completed before Obama's big speech in Philly the other day, so that may change things slightly.

Count me in the 18% undecided. I really can't develop strong feelings one way or the other. Every time one of them gains an upper hand in my mind, something else causes me to have second thoughts. Either one will be a better choice than McCain, but I'd really like to get excited - even a little bit - before the primaries are over.

What's In an Old Name?

Last year a group bought the old state mental hospital in Weston, an historic old building. The plan, apparently, is to rehabilitate and restore it into some sort of historical tourist attraction. As part of that plan, the new owners have reverted to the building's original name, the Trans Allegheny Lunatic Asylum. Some folks are not happy about this:

Several mental health organization leaders have fired off letters this week to the contractor who now owns the former Weston Hospital.

They say the new name - which was the name of the hospital in the 19th century - is discriminatory and promotes misunderstandings about mental illness.

'It's very derogatory,' said Scott Miller, director of the Mountain State Direct Action Center, a disability rights group. 'We don't call people lunatics. Asylum is just not the term anymore.'

The West Virginia Mental Health Consumers Association also is protesting the hospital's new name.

The new owners, for their part, are appealing to history and the need to confront it head on, not paper over it:

the facility's historical consultant, Edward Gleason, said the original name was selected 'to provide a realistic and honest depiction of the era,' and it's 'essential to include the terminology of the times, however offensive.'

Educational exhibits showcasing the 'renaissance in psychiatry' are in the works, Gleason said.

'In America, we strive to present our history as it really was, blemishes and all,' Gleason wrote. 'We are not the Soviet Union, which invented the past by altering names, places and events, to support what had been judged politically correct by contemporary powers.'

OK, so the Soviet Union reference is a little over the top, but it's a good point, right? Well, yeah, except that that concern for history doesn't cover everything:

Jordan paid $1.5 million for the 455,000-square-foot sandstone hospital building and a surrounding tract of 300 acres that includes a forest, farmland and coal mines once operated by the mental hospital.

Earlier this month, Jordan's company announced plans to hold mud-bog racing and other motor sports events on a hillside beside the hospital in downtown Weston.

Last Saturday, the Jordan family opened the facility for tours and performed a sound check for a proposed mud-bog truck race.

See, mud bog truck races don't sound all that historically relevant to a 19th-century mental hospital to me.

If, on the one hand, you justify the old name as a resort to historical accuracy, it seems to me that keeping the grounds historically accurate should be part of the deal. But if you want to run mud bog races there, use one of the newer less hurtful names. Make sense?

Careful Where You Click

Via TalkLeft, here's a disturbing story about your Government's latest online crime fighting scheme. Like any good online business, the Government is craving link hits:

The FBI has recently adopted a novel investigative technique: posting hyperlinks that purport to be illegal videos of minors having sex, and then raiding the homes of anyone willing to click on them.

Undercover FBI agents used this hyperlink-enticement technique, which directed Internet users to a clandestine government server, to stage armed raids of homes in Pennsylvania, New York, and Nevada last year. The supposed video files actually were gibberish and contained no illegal images.

A CNET News.com review of legal documents shows that courts have approved of this technique, even though it raises questions about entrapment, the problems of identifying who's using an open wireless connection--and whether anyone who clicks on a FBI link that contains no child pornography should be automatically subject to a dawn raid by federal police.

There are some legal challenges underway in these prosecutions, but it's hard to generate a lot of sympathy for folks in that situation, at least as set forth in the CNET story. After all, if the link promises kiddie porn and you click on it, that's a pretty good sign of intent and kills any entrapment defense. The real problem is that if someone with a clever mind gets a hold of the FBI's links and disguises them in some way, folks could be innocently duped into clicking on them. The situation is ripe for abuse and/or mischief.

Oh, and to all those folks with unsecured wireless networks bleeding out into the outside world - take note that if someone free rides on your network and clicks on one of the FBI's links, the knock is going to come at your door, not theirs.

The Pentagon Goes High Tech

This past weekend on 60 Minutes, there was a story about a technological development that sounds like something out of a story by the late Arthur C. Clarke. It seems that the Pentagon has developed a ray gun as a non-lethal alternative to bullets and such:

It's a gun that doesn't look anything like a gun: it's that flat dish antenna which shoots out a 100,000-watt beam at the speed of light, hitting any thing in its path with an intense blast of heat.

An operator uses a joystick to zero in on a target. Visible only with an infrared camera, the gun, when fired emits a flash of white hot energy -- an electromagnetic beam made up of very high frequency radio waves.

* * *

He squeezes off a blast and the first shot hits like an invisible punch. The protestors regroup and he fires again, and again. Finally they’ve had enough. The ray gun drives them away with no harm done.

Officially called the 'Active Denial System,' it does penetrate the body, but just barely.

What happens when the beam hits a person?

'It's absorbed in the top layer, 1/64th of an inch, which is about three sheets of paper that you’d find in your printer,' Col. Hymes explains.

'And it’s hitting what inside that 1/64th of an inch?' Martin asks.

'Well, right within that 1/64th of an inch is where the nerve endings are,' Hymes says.

You have to feel the ray gun to believe it, and there's only one way to do that. Martin, who voluntarily became a target, described the sensation of being hit by the ray gun like scalding water.

This seems like a positive development. A damn near idea solution to the problem of crowd control in occupied territory. Non-lethal, no lasting injuries - what could possibly go wrong?

Well, two things, for now. For starters, the military doesn't really want to use it. They are, according to one ex-Marine who was in charge of developing non-lethal technologies, only concerned about "[h]ow many people we could kill and how fast we could do it." For another, there's the problem of lethality creep. Tasers were initially developed as non-lethal military devices, but they've become used so often and so poorly that they're killing people.

If all goes according to plan, the ray gun will make it to Iraq sometime this summer.

Album of the Day

Darktown, by Steve Hackett (1999): From the very beginning of "Omega Metallicus," with it thumping bass and drum loops and angry guitar, it's clear that Darktown is not your older brother's Steve Hackett album. Hackett adopts some more modern production techniques (loops, serious synth programming, etc.) and combines them with his typical varied group of tunes to produce an album that is dark, brooding, and (in places) gorgeous. I think this is one of Hackett's best vocal albums, with him handling the duties on most tracks, occasionally with the aid of various studio technology. At once, it doesn't sound a thing like the guy who spent the 70s in Genesis and turning out solo albums like Voyage of the Acolyte. But at the same time, it sounds exactly what that guy would sound like if he modernized a bit without losing his adventurous spirit.

Bummer on a Galactic Scale

One of the giants of sci-fi's golden age, Arthur C. Clarke, has died. He was probably most well known for 2001, both the novel and the film that spawned it, a collaboration with Stanley Kubrick. When the collaboration was suggested, Kubrick reportedly questioned the wisdom of teaming up with "a recluse, a nut who lives in a tree." Clarke responded in kind, that he was "frightfully interested in working with enfant terrible."

Of course, Clarke's long career went well beyond one book:

In addition to the "2001" series, some of Clarke's best-known works are "Childhood's End" (1953), "The City and the Stars" (1956), "The Nine Billion Names of God" (1967), "Imperial Earth" (1975) and "The Songs of Distant Earth" (1986). His 1973 novel "Rendezvous With Rama" is reportedly being adapted for film, with actor Morgan Freeman as producer and star.

* * *

Clarke won the Nebula Award of the Science Fiction Writers of America in 1972, 1974 and 1979; the Hugo Award of the World Science Fiction Convention in 1974 and 1980, and in 1986 became Grand Master of the Science Fiction Writers of America. He became an honorary fellow of the American Institute of Aeronautics and Astronautics in 1976, and was awarded British knighthood in 1989.

He will be missed.

Album of the Day

Ice Cream Genius, by H (1997): "H" is the working name of Marillion vocalist/reserve keyboardist Steve Hogarth (it helps to distinguish him from the band's other Steve, guitarist Rothery). While I like H in his role with Marillion, I've never really warmed up much to this, his lone solo album to date. In spite of assistance from some very talented guys (XTC's Dave Gregory and Porcupine Tree's Richard Barbieri, among others), most tracks just never really get going. Although the spacious ambient tones of "The Evening Shadows" are a good start, things rarely progress from there (the industry satire "You Dinosaur Thing" aside). Kind of disappointing - evidence that sometimes the parts of the whole aren't as interesting separated out on their own.

How Much Lying Before It's Criminal?

Bullshitting your personal history is almost a national pastime. Heck, we lawyers even have a nice word for it - "puffery" - and it generally won't get you in trouble. Sure, you shouldn't do it under oath, that's perjury. But what about just out in the world - are certain lies so grave that the telling of them should be a crime?

That's the topic of Adam Liptak's column in today's New York Times. It's about Xavier Alvarez, a California resident who told a local government agency - on which he now serves - that he was a retired Marine and had received the Congressional Medal of Honor in 1987. Only he hadn't. And now he's facing years in prison, charged with violating the Stolen Valor Act of 2005. That's right - Congress has passed a law making it a felony to claim to be something your aren't.

Alvarez, who is represented by the FPD in Los Angeles, has moved to dismiss the charge on the ground that the statute violates the First Amendment:

Some First Amendment experts worry that criminalizing speech about symbols is a dangerous business and is reminiscent of laws against flag burning that the Supreme Court has held unconstitutional.

'If the government cannot under the First Amendment compel reverence when it comes to our nation’s highest symbol,' asked Ronald K. L. Collins, a scholar at the First Amendment Center in Washington, 'why then can it compel reverence when it comes to lesser forms of symbolic expression?'

* * *

Free speech experts say the motion is unlikely to succeed.

'On the other hand,' Eugene Volokh, a law professor at the University of California, Los Angeles, wrote on his blog, The Volokh Conspiracy, 'the legal issue is not as clear as one at first might think.' He cited the somewhat muddy Supreme Court jurisprudence in this area and an October decision of the Washington Supreme Court that struck down a state law making it illegal for politicians to lie about candidates for public office.

'The best remedy for false or unpleasant speech is more speech, not less speech,' Justice James M. Johnson of the Washington Supreme Court wrote. It is hard to muster much sympathy for Mr. Alvarez. But it is easy to envision cases in which laws to protect symbols are misused.

It seems to me that Congress might actually have a legitimate interest in protecting the value of military honors. The speech at issue isn't illegal because it represents a particular point of view, but because it makes a demonstrably false factual assertion. That might be the key. Regardless of whether it can constitutionally enact that kind of law, one wonders if they have better things to do with their time.

Guns Along the Potomac (Update)

Just to follow up on yesterday's Heller post, there's lots of coverage out there about today's oral argument. Here's an effective AP story that summarizes things, that does a good job of capturing the atmosphere outside the Court this morning:

While the arguments raged inside, dozens of protesters mingled with tourists and waved signs saying 'Ban the Washington elitists, not our guns' or 'The NRA helps criminals and terrorists buy guns.'

Members of the Brady Campaign to Prevent Gun Violence chanted 'guns kill' as followers of the Second Amendment Sisters and Maryland Shall Issue.Org shouted 'more guns, less crime.'

Meanwhile, Jeralyn at TalkLeft and Mike O'Shea over at Concurring Opinions have some thoughts on the proceedings. Mike is predicting a 5-1-3 decision, with a majority (Roberts, Scalia, Thomas, Kennedy, and Alito) ruling in Heller's favor; Breyer concurring in the finding of an individual right, but concluding that the DC regs are reasonable; and a dissent (Stevens, Ginsburg, and Souter) adopting DC's position. We'll see.

And, of course, SCOTUSBlog is all over Heller and has helpfully indexed all their oral argument coverage here.

Album of the Day

Red Queen to Gryphon Three, by Gryphon (1974): Progressive rock is often derided for being pretentious and overly cerebral. Certainly, this album would be evidence of that. A concept album about chess? You betcha'! Thankfully, it's all instrumental, so we're spared lyrics about castling, Alekhine's gun, or hanging pawns. But the last movement is called "Checkmate." And there's bassoon. Lots of bassoon. Rock and roll bassoon. And krumhorn. It's great!

Guns Along the Potomac

Tomorrow, the Supreme Court hears oral argument in the most anticipated case of the term, DC v. Heller (people started lining up at 5:35 yesterday afternoon to get a seat). Heller marks the Supreme Court's first direct interaction with the Second Amendment since 1939 and holds the potential for radically shifting American law.

The Second Amendment is short, but complicated:

A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

For years, the general consensus (outside of NRA circles) was that the Second Amendment provided a "collective right," based on the "well-regulated Militia" language, that limited a constitutional right to bear arms to groups of folks (i.e., the National Guard), but not the people themselves. Recently, the "individual right" theory has gained traction, even among folks who are generally supportive of gun control. The theory goes that the militia language limits, if anything, the type of firearms an individual could possess, but creates an individual right because (at least originally), every man in the country was part of the militia.

Heller involves DC's famously strict gun control regulations. So strict, in fact, that it pretty much limits legal handgun ownership to the police. Several people sued, arguing that the Second Amendment guaranteed them the right to possess firearms for their own protection. The DC Circuit ruled in their favor, joining the Fifth Circuit in adopted the individual rights theory. DC sought review from the Supreme Court.

I don't think there's much doubt that the Court will affirm the lower court and strike down DC's regs. The two interesting questions really are (1) how many justices will sign on to that opinion? and (2) what type of individual right will they recognize? In other words, will the Court produce a narrow opinion (or a series of opinions) that limits things to the DC regs or will it sweep much more broadly than that? It's not an academic concern:

Dennis Henigan, a lawyer for the Brady Center to Prevent Gun Violence, says his group does not support a D.C.-style law. 'We do not favor a ban on handguns or long guns,' Henigan said.

But he worries about the effect of the court saying the 2nd Amendment should be viewed like the 1st Amendment. 'This could be an invitation for the lower courts to actively scrutinize all the regulations and laws involving guns. That's our real concern,' Henigan said.

There are registration rules and waiting periods for some gun purchases. The sale of new machine guns and some 'assault rifles' are prohibited by federal or state laws. In some crimes, being caught with a gun -- for example, tucked under a car seat -- can add years to a prison term. Henigan foresees defense lawyers challenging these extra punishments as unconstitutional.

Certainly, those challenges will come, but it's not at all clear they'd be successful. Consider that many states - West Virginia included - have specific provisions in their state constitutions that explicitly provide for an individual right to bear arms. As this survey of the law in 2006 shows, most state courts have applied a very lax standard of review in such cases, upholding virtually any restriction on gun rights.

Regardless, Heller will certainly keep the issue in the public eye, with decision from the Supremes coming just in time for the general election campaign.

Clearing Up the Fuckin' Law

The Supreme Court was busy today, granting review in a bunch of new cases, including a couple of interesting criminal cases. But the one that will gain the most attention is FCC v. Fox Television Stations, et. al, or what will become known as the fleeting expletive case. In 2006, the FCC ruled that Fox stations violated regulations on profanity when Cher and Nicole Richie, those paragons of modern culture, said "fuck" and "shit," respectively, during some meaningless award shows. No fine was imposed, but the FCC ruled that even a fleeting one-time-only use of the F or S bombs violated decency standards.

Fox appealed:

No fines were imposed. But Fox challenged the decision in court, arguing that the government's decency standard was unclear, violated free-speech protections and that the rulings had contradicted earlier findings.

The appeals court sided with Fox, saying the FCC had 'failed to articulate a reasoned basis' for its 'fleeting' indecency standard and expressed skepticism about whether the courts would find it constitutional. It sent the matter back to the agency for further consideration.

The FCC petitioned the Supremes to review the case. It will be the first time in 30 years that the Supremes have addressed the issue of broadcast indecency, dating back to the Pacifica case and George Carlin's seven dirty words. Boy, that cries out for a YouTube embed, don't you think?



Of course, it doesn't really stop with those seven (can't embed this one). Hopefully the Supremes will sort it all out for us.

Best Ever? I Dunno . . .

Bob over at DoD is right. Property forfeiture cases make for some great case names and I'll admit - U.S. v. Approximately 64,695 Pounds of Shark Fins has a certain ring to it. But best case name ever? I'm not so sure. Obscenity cases have produced some good ones, too. My favorite - US v. 37 Photographs. Of course, it would be more accurate if it was accurately styled US v. 37 Dirty Photographs, but that's just nit picking.

Some Nice Autocross Publicity

Tomorrow marks round two of the SWVR SCCA autocross season for 2008 (our January even got cancelled due to bad weather). Yours truly will be on hand in the Legal Eagle Racing/Dead Stock Motorsports Mazdaspeed 3, looking to match last month's result.

I say that as preface to this really cool article that I overlooked in Friday's USA Today about amateur motorsports in general and Mazda-fueled autocross in particular:

Like any other working stiff, Jason Isley commutes to the office in his sporty coupe during the week.

But come Friday, he wrestles the baby carrier out of the back seat of the Mazda RX-8, wrenches on a set of extra-grippy tires and slaps some magnetic racing numbers on the sides. Plop on a helmet, and the transformation is complete: family man to top-performing race car driver.

* * *

Isley started racing in 1993 after he traded in his Pontiac Firebird for a Chevrolet Corvette. He eventually turned to a Sports Car Club of America series called autocross, which involves racing against the clock through a cone course rather than against other drivers.

Along the way, he met his future wife when she came to race her Mazda Miata in 1994. They and daughter Jessica, 2, live in the Ladera Ranch section of Orange County, Calif.

Autocross rewards driving finesse and the car's handling more than flat-out power. Isley says his wife has beaten him three times in events in which they have both participated.

An embarrassing side note - at one event, my brother forgot to get the baby seat out of the back of his Neon before his first run. He heard a dreadful "thump" when he went 'round the first corner and thought he'd broken something expensive! It was amusing.

As for Mazda:

Few automakers are as deeply involved with amateurs as Mazda.

'We're here to help people race,' said Robert Davis, a senior vice president for Mazda's North America operation, at a press event here last month. 'Our core values are to have as many people racing Mazdas as possible.'

Mazda claims 9,000 racers and says more of its cars zoom around road-race tracks on any given weekend than any other nameplate.

Zoom zoom, indeed.

Album of the Day

Lift Your Skinny Fists Like Antennas to Heaven, by Godspeed You Black Emperor! (2000): This was my introduction to "post rock," which doesn't seem like a very descriptive term to me. I'd file it generally under "progressive rock" in the original meaning of the term, not the stylistic label that's used mostly these days. Four long tracks (sprayed over two discs), all instrumental, with a few bits of spoken word or found vocal samples here and there. For the most part, the music develops languidly and is punctuated by some stark dynamic contrasts. I can't say it really sticks in my mind, but it's an intriguing enough of a listen.

A State of Sloth

Apparently, West Virginia now has a "state fossil." And while it's cool, I guess, to have it be the bones of a prehistoric beast that is orders of magnitude larger than its modern descendants, couldn't we have picked something a little more vigorous?

Now prepare yourself for one of West Virginia's newly acquired symbols: The Megalonyx jeffersonii.

The Mega-what?

In generic terms, you could call it an extinct ground sloth.

No, really, we're "open for business," it just takes us a while to answer the door.

Album of the Day

Live at the Troubadour, by Kevin Gilbert (1995): This live album is basically Gilbert and a band (called Thud) performing tunes from his solo album at the time (also called Thud), with a few extras thrown in. The tunes are more raucous and laid back at the same time, with Nick D'Virgilio (of Spock's Beard/Mike Keneally fame) rocking the drums on "Waiting" and grooving with a guest tabla player on "Joy Town." Among the extras are a decent, but not great, version of the Toy Matinee tune "The Ballad of Jenny Ledge;" Gilbert's sarcastic shout out to his ex Sheryl Crow, "Miss Broadway;" and a fabulous cover of Zep's "Kashmir."

A New Toy!

Since I got back into the music stuff my synth arsenal has consisted solely of virtual synths. They're neat, powerful, sound pretty good, and the price is right. But they lack something that "real" hardware have, mostly in on-the-fly flexibility. So, after some advice/prodding from my dealer . . . er, "engineer" at Sweetwater, I've jumped in the hardware synth world.


This is an Alesis Micron, an analog modeling synth. That means it is a digital synth designed to sound like and be handled like classic analog synths like the Minimoog, Prophet-5, etc. It uses the same sound engine as the larger (and now discontinued) Ion, but packs the editing features away behind a solitary knob.


The main knob is used to tweak the oscillators, filters, etc., while the other knobs and sliders are used to tweaks the sounds live. While the Micron gets the Ion's engine, it adds some sequencing features that give it even more flexibility. I've only been able to play with it for about half an hour, but it's seriously fun. I'm a born knob twiddler! I also procured a Firewire based audio interface to allow the Micron to interface with ACID, so look for some Micron-fueled tunes sometime soon.

And, apropos of nothing aside from the fact that it's my blog, here's a cute pic (it was on the camera when I transferred the Micron pics) of the one-eyed wonder pup getting some much needed attention.

Weird News Roundup

Every now and then there's just a perfect swirl of weird news items that cry out for a little attention.

First up, from today's Daily Mail is just, well, disgusting:

A 35-year-old woman who sat on her boyfriend's toilet for so long that her body was stuck to the seat by the time he called police had a phobia about leaving the bathroom, the boyfriend said.

'She is an adult; she made her own decision,' said her boyfriend, Kory McFarren. 'I should have gotten help for her sooner; I admit that. But after a while, you kind of get used to it.'

The case drew nationwide attention after Ness County Sheriff Bryan Whipple said it appeared the Ness City woman's skin had grown around the seat in the two years she apparently was in the bathroom.

Gee, with such a supportive boyfriend, I can't imagine why she wouldn't come out!

Second, in the wake of the Spitzer scandal, it's come to the attention of the powers that be in Rhode Island that prostitution isn't illegal in that state, under certain circumstances:

'A lot of people don’t realize that prostitution is legal in Rhode Island if you do it indoors,' State Police Inspector Stephen Bannon testified. In an accompanying letter, State Police Supt. Col. Brendan P. Doherty noted that under current law, 'persons are free to solicit sex for money in newspapers and/or over the Internet as long as the conduct that is agreed upon takes place in private.'

Lawmakers are moving to change the law.

Finally, there is the tale of the amazing disappearing Cuban soccer team:

The day after five members of Cuba's under-23 national soccer team left their hotel with the intention of defecting, two more players disappeared Wednesday night.

Yendry Diaz told ESPN International on the phone that he and Eder Roldan also had left the Cuban team.

Diaz and Roldan are with friends in Tampa, but intend to join their fellow defector teammates in Lake Worth, Fla., according to the Miami Herald.

The original five -- Jose Manuel Miranda, Erlys Garcia Baro, Yenier Bermudez, Yordany Alvarez and Loanni Prieto -- left Tuesday after a 1-1 draw against the United States in an Olympic qualifying tournament in Tampa.

For the record, the Cubans only brought 18 players to the tournament in the first place, meaning they're down to 11 under the best circumstances. Tonight against Honduras, they were down to 10 due to a suspension from the US match.

As they say, I'm not making any of this up.

Album of the Day

Playing the Fool, by Gentle Giant (1976): Seems like I'm on a bit of a roll when it comes to live albums. This one, recorded on the band's tour following Free Hand, is a dazzling display of musicianship. Given the complexity of their tunes in the studio, I figured they'd have to dumb things down to make them work live. Thankfully, no, although some of the tunes got rearranged a bit. The reworked "On Reflection" benefits from an extended recorder intro (yup, you read that right), while "So Sincere" devolves into a full group percussion frenzy. And, of course, everybody plays multiple instruments (sometimes on the same tune), so they retain the sonic variety that marks the studio albums. This album, along with the recently released archive videos from around the same time, really drives how what an impressive live act these guys were.

Socialized Lawyering?

Via this post from Gideon, there are a couple of interesting posts dealing with the question of universal legal services. We're on the verge of some form of universal health care (hopefully), so why not legal services? It's an interesting idea.

First, over at Simple Justice deals with the civil side of the equation. Scott points out that:

As society has increasingly looked to the law to resolve its problems, and made every facet of life increasingly complex from a legal standpoint, the need for legal advice and representation to navigate life has increased significantly.

Let's face facts, one can't deal with a broken vacuum cleaner without understanding the warranty terms, maintenance requirements, terms of sale, etc. The cute TV commercials about how every company loves you may draw you in, but when you have a problem (as happens to all of us on a regular basis), you need a lawyer. On a more significant scale, how many subprime borrowers now in default say that they had no lawyer when they closed a deal that any competent lawyer would have told them was insane.

That being the case, there's a good swath of the public that can't afford to acquire regular legal services, but are not poor enough to qualify for legal aid (or have problems that legal aid is precluded from dealing with). We're already moving towards a system similar to what exists in medical care now, with legal insurance plans gaining in popularity. But as the medical insurance problems show, that's not necessarily a long term solution.

Second, over at Norm Pattis's new blog, he takes up the issue of the state providing an attorney for anyone charged with an offense serious enough to warrant prison time. There's a certain symmetry to that idea:

I fail to see why the same state that elects to bring charges does not offer to foot the bill for the defense. Liberty is at issue. The state is perhaps that most amazing of all human artifacts. It is created to assure life, liberty and happiness. To serve these noble ends it is sometimes set loose on individual citizens, empowered to take everything from them, even their very lives.

Yet the state errs. Innocent men and women are charged with crimes; folks who have committed crimes are often overcharged or charged with crimes they did not commit. Why should the cost of this be borne by private individuals?

Norm recognizes a similar gap in the criminal justice system, in which those who don't qualify for a PD similarly don't have the resources to hire effective private counsel.

Would providing lawyers to anyone who needed them in either situation be a viable option? It's hard to say. We obviously do it already, to a certain extent, with PDs and legal aid. But the funds expended on those organizations are small and almost constantly under attack. Expanding either one, particularly in the criminal arena, wouldn't be politically popular.

Of course, what's made the march towards universal healthcare more urgent is than it has been in a while I think is that there's a large group of respectable middle class people - employed child raisers who are doing all they should in the world - who fear (rightly or wrongly) being wiped into poverty by a single medical crisis. Any movement on universal legal services will only come when those same folks feel the same way about their legal affairs.

Album of the Day

Archive 1967-1975, by Genesis (1998): Yeah, yeah, I know - more Genesis. Sorry, folks, that's the way it works in the A-Z. Expect the same when I hit the Marillion, Rush, Yes, and Zappa parts of my collection, too. Having said that, there's not much to say about this one that I haven't said before.

Follow the Money

There's a fantastic old series of Bloom County cartoons that takes dead aim at the "war on drugs."Oliver Wendell Jones, boy genius/hacker, created a successful hair growth tonic derived from the sweat of Bill the Cat. It's successful, to an extent, until an unforeseen side effect emerged - those who used it would be prone to fits of uncontrolled "ack"ing. The Government, sensing the danger that Oliver's Cat Sweat Scalp Tonic posed to the general public, declared it a controlled substance and illegal to possess or sell. Immediately, the black market in scalp tonic boomed and the boys began to make big bucks (Milo, remembering what his mother taught him, sent the Government a letter thanking them for pumping up their business).

One strip in that series I thought rang particularly true. A tough looking youth, bundled up against the cold, stands on a street corner behind a sign that says "illegal cat-sweat scalp tonic - $12,000 a bottle," when a well dressed woman with a clipboard steps up:

WOMAN: Hello, young underclass youth . . . I'm from the Government. We'd like to know why you prefer a life of crime making $20,000 a week selling scalp tonic when you could be working honestly at McDonald's.

YOUTH: Allergic to french fries.

WOMAN: Oh! We have a program for that!

The point is obvious. Despite moralistic platitudes, crime indeed does pay, and quite well in some instances. There is a strong economic incentive for folks without a lot of other options to sling drugs to make money. The perverse part, of course, is that it is the very illegality that creates the black market that leads to that incentive.

One way of dealing with that issue? Legalization, as argued in this The Times (of London) column. It makes a lot of sense. What we're doing now certainly isn't working.

Album of the Day

The Way We Walk (Vols. 1 & 2), by Genesis (1992/1993): Since Red brought up the band's arrangements of older tunes, here's good opportunity to pimp one. These two discs were compiled on what was once thought to be the band's last meaningful tour, in the wake of We Can't Dance. Rather than put out a full set in a 2-CD package, the band split the tunes up. Volume 1 is dubbed "The Shorts" and contains the radio-friend pop fodder (for the most part - "Mama" is really pretty dark, when you think about it), while the expanded proggier stuff is cataloged on Volume 2, aka "The Longs." The highlight of Volume 2 was the "old medley" for that tour, including Red's favs, "Firth of Fifth" and "I Know What I Like." While I understand the frustrations of some folks that the old stuff got relegated to w single 20-minute ghetto, it's a pretty good rip.

Wrap Up With Stanley

That's a wrap for my Monday's With Stanley series. For those who came in late and want to catch up, here's the whole run of them:

• The Ultimate Trip (2001)
• Sex, Moogs, & Violence (A Clockwork Orange)
• Jack Goes Apeshit (The Shining)
• Unnaturally Trained Killers (Full Metal Jacket)
• Dr. Tom's Erotic Walkabout (Eyes Wide Shut)
• It's a MAD MAD MAD MAD World (Dr. Strangelove)

Hope y'all enjoyed them.

Monday's With Stanley - It's a MAD MAD MAD MAD World

Imagine, for the sake of argument, that I have a big bomb. OK, a really big bomb. So big that, should I drop it, it would eradicate you from the face the planet. In response to this threat, you develop your own really big bomb that can eradicate me from the face of the planet. We're both aware of those facts, so we maintain an uneasy peace, made possible by the glory of Mutual Assured Destruction. For decades, the world lived with MAD, as the US and the Soviet Union played the game out during the Cold War. Artists all over the world tried to makes sense of it in serious contemplative works. Stanley Kubrick decided that the only thing to do was laugh about it.

Dr. Strangelove or: How I Learned to Stop Worrying and Love the Bomb started out life as a serious contemplative project. He wanted to make a Cold War thriller and Peter George's novel Red Alert was recommended as a possible adaptation. As Kubrick and George worked on a screenplay, however, the surreal comedic aspects of MAD became evident. Interesting legal sidestep: George would later sue the authors of Failsafe for plagiarism, as it's an awful lot like Red Alert. They settled out of court.

Kubrick's comic nightmare is kicked into action by General Jack D. Ripper, a paranoid commander of US bomber wing. Ripper orders his bombers, which are nearly constantly stationed a couple of hours from their Soviet targets, to proceed with an attack. Why? Because of a communist plot to dilute the "precious bodily fluids" of Americans. Needless to say, the Soviets are not attacking. The functionless voice of reason to Ripper's paranoia is a British officer, Lionel Mandrake (Peter Sellers, in the first of three rules), who tries unsuccessfully to recall the bombers.

The action shuttles between Ripper's office, where Mandrake tries to come to terms with the General's insanity; one of Ripper's B-52s heading towards its Soviet target (commanded by a bravura Slim Pickens as the ultimate Texas cowboy); and the War Room, where the president (Sellers again) tries to stop the inevitable, with aid from the not altogether helpful General Turgidson (George C. Scott), who thinks this presents an opportunity to win a war, and the mysterious ex-Nazi scientist, Dr. Strangelove (Selllers once again).

Needless to say, it doesn't end well. By the time Pickens famously rides one of his bombs to the ground like an oversized bronco, the world as we know it will cease to exist. Along the way, we get Turgidson's helpful sense of scale (pushing his scheme to launch a full attack with "acceptable" American casualties of "no more than 10 to 20 million killed, tops ... depending on the breaks") and the president's famous plea to Turgidson while he squabbles with the Soviet ambassador, "Gentlemen, you can't fight in here! This is the War Room."

As you can tell just by the names of the characters, Strangelove is broad satire. It takes all the stereotypical characters one might find in such situations if they were dramas and turns them to 11. Yet, Kubrick never loses sight of the fundamental absurdity of the era. What's more, for all the dark humor, it points out how unbalanced or just ineffective leaders can make a bad situation even worse. Which is partly why Strangelove is as funny - and as terrifying - today as it was back then.

UPDATE: In his original New York Times review of Strangelove, Bosley Crowther wrote:

Stanley Kubrick's new film, called "Dr. Strangelove or: How I Learned to Stop Worrying and Love the Bomb," is beyond any question the most shattering sick joke I've ever come across.

That's about right.

Fun With ESL

The Charleston area isn't exactly overrun with recent immigrants, but they are there. And every now and then, they open a Chinese restaurant and provide some wonderfully amusing mangled English:

Happy Hours
4:00 pm - 9:30 pm
Beer 1 Piece $1.45
Dine In Only

That's from a restaurant menu hanging around in the kitchen at the office. Honest.

What Is an Appeal?

In a comment to my post last night about a legal ethics dilemma, Dr. Bernstein asked:

it would seem that if Kunz and Coventry had notified Logan's lawyer after the jury decision, the decision might have been accepted for appeal, further criminal investigation with the new facts and perhaps the jury verdict overturned

The good doctor brought to mind one of the fundamental misunderstandings most non-lawyers and the media have when it comes to the court process - just what exactly is an "appeal?"

In the media, and in most laypersons minds, an "appeal" is any court proceeding that happens after trial (or sentencing) where the losing party seeks to have the trial court's decision overturned. In fact, "appeal" is a legal term of art and applies only to a relatively limited type of proceeding.

An appeal, strictly speaking, is a review of the lower court's decision to see if legal error has occurred. It is based only on the record produced before the lower court. That means that a court in a direct appeal cannot consider new evidence or even old evidence that wasn't presented to the lower court. As a result certain issues cannot be addressed on appeal, ineffective assistance of counsel foremost among them.

When the word appeal gets thrown around in the press, particularly as it relates to death penalty cases, more often they're really talking about some type of collateral proceeding, usually a habeas corpus proceeding. After a criminal defendant has exhausted his direct appeals (to the US Supreme Court, if she desires), she can file what is technically a civil action challenging her conviction. Since that is a new proceeding, new evidence can be presented and a new record which can then be reviewed in an appeal of the court's decision. That's where issues like ineffective assistance of counsel or newly discovered evidence can be hashed out.

So, to finally answer Dr. Bernstein's question: probably not. On direct appeal, anyway, the court would be limited to the record created at trial, which did not include any evidence about Wilson's confession. It could have been developed in a habeas proceeding, but the same problems with privilege would apply there.

Danmed if You Don't . . .

Over at Volokh Conspiracy there's a spirited discussion going on about an issue that I wish I'd thought up when I was putting together my law school ethics project. The basic facts, taken from a CBS story which was featured on 60 Minutes tonight are:

Alton Logan doesn't understand why two lawyers with proof he didn't commit murder were legally prevented from helping him. They had their reasons: To save Logan, they would have had to break the cardinal rule of attorney-client privilege to reveal their own client had committed the crime. But Logan had 26 years in prison to try to understand why he was convicted for a crime he didn't commit....

Lawyers Jamie Kunz and Dale Coventry were public defenders when their client, Andrew Wilson, admitted to them he had shot-gunned a security guard to death in a 1982 robbery. When a tip led to Logan's arrest and he went to trial for the crime, the two lawyers were in a bind. They wanted to help Logan but legally couldn't....

The lawyers did get permission from Wilson, to reveal upon his death his confession to the murder Logan was convicted for. Wilson died late last year and Coventry and Kunz came forward. Next Monday, a judge will hear evidence in a motion to grant Logan a new trial.

The thrust of the 60 Minutes piece (which doesn't include any commentary from any legal ethics experts or anything) and many of the VC comments is that Wilson's attorneys let an innocent man rot rather than risk their careers or the risk the life of their obviously guilty slimeball client client. The reality isn't that simple, of course.

For starters, just what rules are we talking about? For a WV perspective, Rule 1.6 of the WV Rules of Professional Conduct only allows disclosure if (1) the client consents, (2) the client is about to commit a crime, or (3) in a dispute between the lawyer and client. Some states provide an exception to prevent another person's death, though not Illinois, where this drama played out. A small number (perhaps only Massachusetts) throw in sever bodily injury, but it's not clear whether wrongful conviction would fall under that heading.

Even assuming that Wilson's attorneys had "done the right thing" and betrayed their client's confidence, it's not clear it would have made a difference. For one thing, as Wilson's attorneys point out, it's unlikely that Wilson's confession to them would have ever made it into Logan's trial. The only reason they're able to come forward now is that Wilson allowed them to breach privilege when he died. Had they breached the confidentiality at the time of Logan's trial, Wilson surely would have asserted privilege to stop his lawyers testifying in open court.

For another, even assuming the confession would make it into court, it's not clear it would have spared Logan his fate. According to the 60 Minutes story, three eyewitnesses testified that Logan was the killer, while several of his family members testified that he was home with them at the time of the murder. Obviously, the jury weighed that testimony and concluded that the eyewitness testimony was more credible. Would Wilson's admission have swayed them? Possibly, but not necessarily. Given the way he revealed it to his attorney, it doesn't sound like he was quite right in the head. A jury, particularly one that bought into the testimony of several eyewitnesses, might conclude it was false (for whatever reason).

Thus, when thinking about the ethical/moral duties of Wilson's lawyers, one has to consider the realities of what might have happened had they breached privilege. Folks who don't deal with the criminal justice system assume that because someone else admitted they did the crime that the system would have released Logan without further ado. Sadly, it just doesn't work that way. As Logan put it on 60 Minutes, there's a rush to convict, but the system takes its own sweet time fixing mistakes. There's also a built-in bias towards affirming convictions, whether on direct appeal or in other proceedings, that's exceedingly difficult to overcome (ask me how I know!).

While the ethical angle makes for juicy TV, the more wide-ranging issue in Logan's case would appear to be that it is yet another example of a wrongful conviction being secured with faulty eyewitness testimony. We need to break down the false assumption that eyewitnesses are the best source of information. Even if they are completely certain about what they think they saw, frequently they aren't. No dishonestly required - we're just not very good at accurately recording information in high-stress situations. Like, say, when someone's getting killed nearby.

Album of Last Friday

Seconds Out, by Genesis (1977): One of the criticisms some folks have about groups like Genesis (or Rush or Marillion) is that their live shows consist mostly of performing songs as they were played on the album, without any improvisation or stretched out jams. That's true (for the most part), but that doesn't mean that something isn't added in the live setting. For proof of that, see disc two of this set, which presents ripping versions of "Supper's Ready," "Cinema Show," and "Dance on a Volcano/Los Endos." The first two showing how well Phil Collins could do stepping into Gabriel's vocal shoes. I'm not sure what it is, but the energy of those versions render the studio versions pale by comparison. "Cinema Show," in particular, is about my favorite 11 (or so) minutes of music ever.

A Tune for My Coworkers

Last Friday was Leap Day, February 29. It was also the day of one of our biweekly full staff meetings at the office. At those meetings, one victim, er . . . "lucky employee" is responsible for presenting an Interesting Tidbit about anything whatsoever. Given the date, the lucky Pat K., one of our investigators, last week shared some Leap Day/Year trivia. In the mix was some sheet music Pat found online for the "official" Leap Year song - the "Leap Year Polka." With apparently too much time on my hands (or things on my mind - you be the judge), I decided to take the tune, program it in a MIDI file, and see what it sounded like.

Now you can too.

A few caveats.

First - I am not Jimmy Sturr. My polka experience is, shall we say, limited. It doesn't help that MIDI programming skills are fairly basic and everything sounds very mechanical.

Second - I doubt J. Tosso, who wrote this piece, ever intended it to be played on Mellotron, electric piano, clavinet, and MiniMoog.

Third - I neutered the bass line, which had some really nasty chords in it, by forgetting to switch my virtual MiniMoog from "mono" to "poly." I like it this way better, honestly.

Anyway, enjoy - and Happy Leap Year!

Album of the Day

Trespass, by Genesis (1970): If you'd been one of the few people to buy Genesis's debut album in 1969, their follow-up would have been a pleasant surprise. From Genesis to Revelation is a fun listen with full hindsight engaged, but it didn't offer much of a hint of where the band would go in the next five years. On Trespass the band broke out of the 3-minute pop song format and started exploring the more elaborate arrangements that would characterize their golden years. It's not all completely satisfying, but the high points would have given a 1970 fan hope for the future. While it's mostly more acoustic and pastoral that would become typical, dynamic closer "The Knife" hints and the more aggressive tone that Steve Hackett and Phil Collins would bring to the band on the next album.

The High Price of Death

When it comes to capital punishment, you've basically got three groups. One one side, there's folks like me who oppose the death penalty in all its forms and in all cases on philosophical/moral grounds. On the other side are folks who, for their own philosophical/moral grounds, believe that capital punishment is a requirement of a just society. In the squishy middle are those folks who generally support the idea of capital punishment, but have practical concerns about its application.

The group in the middle might want to consider a new study out of Maryland comparing the costs of prosecuting death penalty cases versus life-in-prison cases. Bottom line - it ain't cheap:

The death penalty has cost Maryland taxpayers at least $186 million more in prosecuting and defending capital murder cases over two decades than would have been spent without the threat of execution, according to a study to be released today.

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Paid for by the Baltimore-based Abell Foundation and prepared by the Urban Institute, a national, nonpartisan research organization in Washington, the study estimates that the cost of reaching a single death sentence costs the state an average of $3 million, which is $1.9 million more than a non-death penalty case costs, even after factoring in the long-term costs of incarcerating convicted killers not sentenced to death.

And for that money, taxpayers don't even get that much in return:

In addition, because most death sentences in Maryland are overturned and eventually reduced to life without parole, state residents are often saddled with the high cost of a capital case and the bill for housing a convicted killer for life, the study found.

This report comes at a time when the Maryland legislature is considering following New Jersey by doing away with capital punishment. I hope they do, regardless of the reason why.

Beware What You Read

Holy cow, this is frightening. Via Concurring Opinions, the story of a university student-cum-janitor who was charged by the school with "racial harassment." His crime? He read a book that dealt with racial issues during his off-time at his janitorial job. Was it Mein Kampf? The Clansman? Nope - Notre Dame v. the Klan: How the Fighting Irish Defeated the Ku Klux Klan, by Todd Tucker. From the Borders blurb:

In 1924, students of the University of Notre Dame and members of the Ku Klux Klan faced off in a violent confrontation in South Bend, Indiana. This shocking and true hidden chapter in Catholic and American history is recounted in Notre Dame vs. The Klan, the story of two uniquely American institutions that rose to power amidst rampant anti-Catholicism and collided during a riotous weekend. In defeating the Klan, Notre Dame helped Catholics overcome widespread prejudice and take place as accepted members of mainstream America. Told from the perspectives of the then-president of Notre Dame, the former Grand Dragon of the KKK, and a Notre Dame student who participated in the riot, the book details the rise of Notre Dame- from its humble roots in a small village in France to its reputations as an academic leader and football power-and the parallel trajectory of the KKK in Indiana.

Sounds like a stirring story of people standing up to bigotry. Hardly the stuff of "racial harassment."

Part of the problem appears to be that nobody - the allegedly offended coworkers nor the university's investigator - would listen to the guy explain what the book was about. I can see where a book with "Klan" in the title might raise some eyebrows, but a friendly conversation should have dispelled any animus.

The university later rescinded its disciplinary decision, but without conceding how silly it was in the first place or clarifying that reading a book at work wasn't some kind of offense. Regardless, this is the kind of thing that people opposed to civil rights laws and litigation use to show how such things go too far. The university should loudly own up to its error.

More on this issue over at The Volokh Conspiracy.

More Loony Spotting

Remember my post last month about a Catholic school that wouldn't let it's boys basketball team play in a game refereed by a woman? Said "could not be put in a position of authority over boys because of the academy's beliefs." That academy, in turns out, "is owned and operated by the Society of St. Pius X." What does that mean, exactly?

Well, consider this article (via Pharyngula) from The Catholic Herald ("Britain's Leading Catholic Newspaper" it proclaims) about Richard Williamson, one of the four ordained bishops of the Society. He's got quite the world view:

A senior bishop of the Lefebvrist Society of St Pius X (SSPX) has endorsed the Protocols of the Elders of Zion, a notorious anti-Semitic forgery that enjoys widespread currency in neo-Nazi circles.

Richard Williamson, one of four bishops ordained by Archbishop Marcel Lefebvre, told The Catholic Herald that the document - which supposedly reveals a Jewish plot to dominate the world - was authentic.

* * *

In 2000 Williamson endorsed the Protocols on an official SSPX website. He wrote: 'God put into men's hands the Protocols of the Sages of Sion... if men want to know the truth, but few do.'

He's also a 9/11 conspiracy nut and believes that the Catholic Church was taken over by secularists after Vatican II. But, really, he's just all around nuts.

His take on - wait for it - The Sound of Music:

Can you imagine Julie Andrews in The Sound of Music staying with the Captain if the romance went out of their marriage? Would she not divorce him and grab his children to be her toys? All the elements of pornography are there...

He must have the director's cut or something.

Or, how about his take on women in general:

A woman can do a good imitation of handling ideas, but then she will not be thinking properly as a woman. Did this lawyeress check her hairdo before coming into court? If she did, she is a distracted lawyer. If she did not, she is one distorted woman.

Explains a great deal about the basketball game, doesn't it?

BTW, I am so going to start referring to my boss as a "lawyeress!"