He Has to Write Each Copy By Hand

From the New York Times, a creative punishment for a white collar crook:

On Monday, Judge Ricardo M. Urbina of the United States District Court for the District of Columbia, sentenced a former senior pharmaceutical executive to write a book.

Earlier this year the executive, Dr. Andrew G. Bodnar, a former senior vice president at Bristol-Myers Squibb, had pleaded guilty to making a false statement to the federal government about the company’s efforts to resolve a patent dispute over the blood thinner Plavix.

The judge sentenced Dr. Bodnar to two years of probation during which he is to write a book about his experience connected to the case. Dr. Bodnar must also pay a $5,000 fine.

As a writer, the idea that a judge would equate writing a book with punishment is kind of disappointing. But on the other hand, there are probably dozens of things most people enjoy doing that I'd consider punishment. Watching an entire season of American Idol on DVD, for instance. Might plead the Eighth Amendment on that one.

Um, Huh?

When it comes to commentary about yesterday's Supreme Court decision dealing with when a judge has to recuse himself from a case, this is about the weirdest criticism I've seen:

The Supreme Court ruled Monday against free political speech in judicial elections. While self-styled "reformers" cheer, fans of the First Amendment should be alarmed.

Wait, what? What does the First Amendment have to do with it?

Attempting to rule narrowly on due process grounds, the court managed to collaterally damage the First Amendment while crafting an unworkable standard that will chill independent political speech.

I'm still confused. The First Amendment keeps the government from restricting speech. In modern American, speech equals money. But how does this ruling impact your ability to spend and speak at will? Blow your millions on a judicial election. You'll only be deprived of the judge you got elected hearing your case. I still don't see how that's a bad thing.

Apparently the Center for Competitive Politics views the First Amendment as securing the right to purchase a rigged bench. How's that for a living Constitution!

Album of the Day (Special Edition)

Wazoo, by Frank Zappa (2007): Zappa has to be the most prolific posthumous artist outside of rap, as wife Gail and vaultmeister/drummer Joe Travers continue to dig up gems from days gone by. This particular album documents a short-lived big band Zappa put together around the time of Waka/Jawaka and The Grand Wazoo. It only did a few shows with this one in Boston, its last, saved for posterity. That being said, there are only a couple of tracks on here from those two albums, including my new favorite version of "Big Swifty" (because of the middle section). Disc two is largely devoted to an all instrumental version of "The Adventures of Gregger Peccary," which is quite different from the version found on Läther. Excellent quality and excellent performances all around.

Benjamin Smacked Down by The Supremes

This morning, the Supreme Court handed down its decision in Caperton v. A.T. Massey Coal Co., which arose from an infamous West Virginia judicial election. By a 5-4 vote, the Court held that West Virginia Supreme Court Justice Brent Benjamin should have recused himself before hearing the case (twice) in which a major benefactor in his campaign sought to have an adverse verdict against his company reversed.

Benjamin's failure to do so violated Caperton's right to due process of law, which requires recusal when (quoting another case):

the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.

The Court, via Justice Kennedy, stressed the fact that, while Benjamin made a searching inquiry and concluded that he wasn't actually biased in the case, the perception of bias requires an objective, rather than subjective, analysis. To most objective observers, the decision to recuse really isn't that close of a call.

It doesn't even sound like the dissenters (led by Chief Justice Roberts) really disagree on that score. The main thrust of the dissent, unconvincing to my ears, is a parade of horribles about all the questions left unanswered by the Court's decision. The dissenters crave the certainty of a bright line rule, but seem willing to sacrifice (dare I say it) "justice" or "fairness" in the process. In other words, letting the perfect being the enemy of the good.

The take away from this whole case, which now comes back to the WV Supreme Court of Appeals for a third time, is two fold.

First, it seems obvious that when you have judicial elections, the capacity for this kind of shenanigans is enhanced. It can still happen with appointment systems, too, but it would be more attenuated.

Second, it seems equally obvious that judges should not be able to decide recusal issues by themselves. The type of distanced objective analysis needed in cases of potential bias (or just the appearance thereof) is difficult to do on yourself. The best of intentions cannot always overcome the type of nearsightedness inherent in the process. The system should require something more than "trust me," in the end.

A Sad, But Fascinating, Tale

This month's issue of the ABA Journal has a fascinating article about a unique moment of Supreme Court practice, arising from a shameful era in the nation's history.

Nevada Taylor, a 21 year old white woman, was raped one January night on her way home from work in Chattanooga, Tennessee in 1906. Although Taylor said she didn't see her attacker, she nonetheless described him to the sheriff as a "Negro brute." The story raced around town, the citizenry stoked to near frenzy in the next couple of days as no arrest was made. After a reward was offered, a local man identified Ed Johnson, a 19 year old black man, as being in the area of the attack.

Johnson was quickly arrested, which did not quell the mob, which tried (twice) to bust into the local jail and lynch him. Shortly thereafter, he was tried and convicted of the offense and sentenced to death. His attorneys convinced him not to appeal, basically on the theory that if he won, he'd be lunched anyway.

About a month before the sentence was to be carried out, a pair of black lawyers in Chattanooga - Noah W. Parden and Styles L. Hutchins - took Johnson's case. The trial judge was not impressed with their efforts to reverse Johnson's conviction:

But McReynolds quickly rejected the plea, stating that the defense attorneys had missed the deadline under local rules requiring that motions for new trial be filed within 72 hours of a verdict.

Besides, the judge scolded them, “What can two Negro lawyers do that the defendant’s previous three attorneys were unable to achieve? Do you know the law better than this court or the lawyers who represented the defendant? Do you think a Negro lawyer could possibly be smarter or know the law better than a white lawyer?”

Shut down in state court, Parden and Hutchins sought review in the federal courts, an odd place at the time. It took a trip to the Supreme Court, where Justice Harlan entered a stay of execution so the Court could review the case. Amazingly, that order didn't do much:

News of Justice Harlan’s action spread throughout Chattanooga. Dozens of men, armed with guns, stormed the county jail holding Johnson. Leaders of the mob were surprised to find no resistance to their raid. Sheriff Shipp, claiming that talk of a lynching was nonsense, had given all of his depu­ties the night off—all except 72-year-old jailer Jeremiah Gibson. And all the other inmates had been moved off the floor where Johnson’s cell was located.

The siege on the jail began about 8 p.m., with mob leaders using sledgehammers to pound away at the big iron lock that protected Johnson in his cell. Sheriff Shipp actually showed up at the jail amid the riot, but he was told to go into the bathroom and wait. He complied.

It took three hours for the iron lock on Johnson’s cell to fi­nally give way. The leaders of the mob grabbed him and took him to the county bridge that spanned the Tennessee River. They put a noose around John­son’s neck and told him that there was nothing he could do or say to save his life, so he might as well confess.

But when he spoke, according to newspaper reports, Johnson said, 'I am ready to die. But I never done it. I am going to tell the truth. I am not guilty. I am not guilty. I have said all the time that I did not do it and it is true. I was not there.'

Then Johnson uttered his last words: 'God bless you all. I am innocent.'

The statement drove the crowd into a frenzy, and Johnson was lifted into the air by his neck. His body swung for a couple minutes. But he apparently wasn’t dying fast enough, so some in the mob opened fire. One report stated that he was shot more than 50 times. Finally, a bullet pierced the rope and Johnson’s body fell to the wooden planks of the bridge.

'He’s not dead yet!' yelled someone in the crowd.

A man later identified as a deputy sheriff shot John­son five more times at point-blank range. He then pinned a note onto Johnson’s chest that read, 'To Justice Harlan. Come get your n----r now.'

Perhaps more amazing is that was not the end of the story. Teddy Roosevelt's attorney general, after an investigation by the Secret Service, charged Shipp and several others with contempt of the Supreme Court. What ensued, for the only time in the Court's history, was an actual trial, rather than appeal of a case.

For much more detail - including what happened to Shipp and his codefendants at trial and after, not to mention Parden and Hutchins, read the article. It's fascinating, but in a very depressing sort of way.

Are We That Bad?

The question in presidential campaigns is supposed to be "are you better off today than you were four years ago?" Since the World Cup runs on the same quadrennial cycle, you can ask the same question in soccer. Steve Davis over at ESPN thinks the answer to that question is obviously "no," when it comes to the US national team. I'm not quite so cure.

The past week was a bit of white knuckle ride for US soccer fans. Last Wednesday, we traveled to Costa Rica, a placed we've never won before, for a World Cup Qualifier and quickly embarrassed ourselves, losing 3-1 (it looked worse than tat). Then on Saturday, playing essentially an away match in Chicago, things started badly with an early goal conceded against Honduras. Thankfully, things improved considerably and, thanks to a Carlos Bocanegra header, the US pulled out a 2-1 win.

The fact is, for all the hand wringing and (justified) frustration with Bob Bradley's personnel and tactical decisions (no Torres or Adu on the bench Saturday, Bob?!?), we're halfway through the final round of qualifying and sitting in a solid second place in the group. We're well on our way to South Africa 2010, even factoring in the sure fire loss to Mexico in the Azteca. The sky is not falling, although it may be a bit cloudy. And hey, at least our players aren't tearing up the turf burying stuff underneath to ward off evil spirits!

I think it's premature to come to the conclusion Davis does before we make it through the Confederations Cup in South Africa, which starts next week. In the space of a week, we'll face defending World Cup holders Italy, South American champs Brazil, and African champs Egypt. If we fall flat on our face, like we did in Germany 2006, I'll agree with Davis. But at least let me have a little hope for a couple more weeks, OK?

Album of the Day

Roxy and Elsewhere, by Frank Zappa (1974):

Zappa
Duke
Underwood
Brock
The Fowler Brothers
Humphries
Thompson

Does it get any better than this? Not by much.

Back of the Line, Twits

Human organs for transplant are not exactly a abundant resource. Thousands of people die every year waiting for a heart, kidney, or what have you. Assuming the donor was willing and wasn't killed to be harvested, why should anybody turn down a matching organ? Superstition, it seems:

Most people have a strong aversion to the idea of receiving a donor organ from a killer, a study suggests.

Those questioned said they would be far happier receiving a transplant from someone with a good moral background, the Cheltenham Science Festival heard.

It follows on from research which found one in three organ transplant patients believe they have taken on some aspects of the donor's personality.

OK, here's the deal. If you are silly enough to think that having the liver of a killer implanted into you will turn you into a killer, you go to the back of the list, all right? We already say that alcoholics can't have new livers and others not willing/able to maintain the upkeep on their new parts don't get one. How about we add a "no irrational twits" clause, too?

For the record, I don't care what you done - I'll take any part of you I need, thank you very much!

Enjoy Retirement, Stanley

The New York Times has a really nice write up about Stanley Drucker, the principal clarinetist for the New York Philharmonic. Drucker is retiring after 60 years with the orchestra, with a final performance of his signature work, Copland's Concerto for Clarinet, Strings, and Harp next week. Drucker is the only clarinetist who has performed that work with the Philharmonic aside from the man for whom it was written, Benny Goodman (Drucker himself was the person for whom John Corigliano wrote his clarinet concerto).

It will mark the end of an era:

In his time he has seen the orchestra turn from a smoke-filled, poker-playing boys’ club to an assembly half populated by women; progress from a part-time job to a year-round occupation; move from Carnegie Hall to Lincoln Center. He lived through its heyday as a recording machine and watched its output dry up to nothing but a dribble of online issues.

He has played for most of the great conductors of his time: George Szell ('not a pleasant guy'), Dimitri Mitropoulos ('a saint'), Leopold Stokowski ('called everybody ‘You, sir’ '), Leonard Bernstein ('Whatever he touched seemed to work').

As a clarinet player, Drucker is one of those "name" players that made my ears prick up. Enjoy your retirement, Stanley - you've earned it!

Mama We're Crazy

I've always thought of lots of my fellow West Virginians as "nuts," in the colloquial sense. Turns out

I was onto something:West Virginians are more likely to have serious psychological distress than residents of any other state, according to a federal report released Thursday.

From 2006-07, more than 14 percent of Mountain State adults experienced serious psychological distress (SPD), an indicator of mental health problems, according to the report by the Substance Abuse and Mental Health Services Administration. The national rate was about 11 percent.

West Virginia also has one of the nation's highest rates of adults who experienced a major depressive episode in the past year, according to the report. About 9 percent of West Virginians did, compared to about 7 percent of the total U.S. population.

Although it makes for a juicy headline (and blog post title!), the numbers don't look that much higher than average, honestly. It does explain some of the phone calls I get, tho'.

Album of Yesterday

The Shaming of the True, by Kevin Gilbert (2000): Posthumous art is always tricky business. It's often hard to say home much of the late genius's work shine through in light of the character of whoever finished up the project (A.I., I'm looking at you here). When he died, Kevin Gilbert left behind this sprawling unfinished rock opera, a tale of a music biz sell out who manages to recapture his soul. Lovingly pieced together by Nick D'Virgilio and others, the finished product is undeniably Kevin's work. It's perhaps not as brilliant as a whole as it might have been had Gilbert lived to see it through, but it's an awesome piece to leave behind as a legacy. It rocks. It cries. It jabs. It laughs. Brilliant.

Twenty Years Ago

The 27th came:




Lyrics
Photos via Wikipedia

The Queen Is Dead

Well, this sucks. Singer Koko Taylor, the "Queen of the Blues" has passed away. Hard to imagine this voice ever going silent:



RIP, Your Highness.

Albums of the Day

The Wake, by IQ (1985) and Doomsday Afternoon, by Phideaux (2007): What do two albums recorded 22 years apart have in common? More than you'd think: (1) I listened to them both today, (2) they'll both be at 3RP this year, which pleases me greatly, and (3) long-time (but now ex) IQ keyboard player guests on one track of the Phideaux album. Of course, they're quite different in other respects. The Wake is a little clunky, in a charming "the band is still finding themselves" sort of way, while Doomsday Afternoon (the second part of an "eco nightmare" trilogy) has the smooth finish of 21st century production. Oh yeah, they both kick ass, too!

Seven More Wonders

In 2007, the UN put together a revised list of the Seven Wonders of the World, with input from Net voters. This year, they're doing the same thing, but with the Seven Natural Wonders of the World. Right now there are 261 nominees (from 222 countries) that will be whittled down to 77, then to 21, and finally to seven.

Go vote for your seven now and let your voice be heard!

And We're Cheap, Too

Last weekend, the West Virginia Legislature finished up a special session that was needed (as it always is) to pay all the bills. Among the bills outstanding was a $21 million back log for payments to court appointed counsel in criminal cases. Not public defenders, mind you, but the private attorneys who take appointments.

Late payments to those attorneys have been a problem for years, but the size of this year's bill has made some legislators really take notice. Among the things they've figured out - PDs tend to do the work less expensively:

Sen. Frank Deem, R-Wood, blamed the office's funding woes on the Legislature's inability to mandate Public Defenders Service offices statewide.

Currently, the offices -- staffed by attorneys paid in the $40,000 to $70,000 range -- cover only 29 of the 55 counties.

* * *

Deem said many court-appointed lawyers make much more than the salaried public defenders, at appointed counsel rates of $45 an hour out-of-court, and $65 an hour in-court.

'In Wood County, some of these [court-appointed] public defenders are making over $200,000 a year,' he said. 'All of this money is going for the court-appointed attorneys.'

Private attorneys are a key component of any good system of indigent defense. PDs have conflicts and limited resources. Besides, while PDs have a specialized knowledge base in criminal law, a broader perspective from a private practice has its advantages as well. But the best systems use both and overload neither.

That's Our Harry

I've never been a huge fan of Senate Majority Leader Harry Reid (D - Sin City). He's not done much with the Democratic majority, which I've put down mostly to being him being a feckless putz. I didn't know he shared Duhbya's fear of reading, too:

'I understand that during [Judge Sotomayor's] career, she's written hundreds and hundreds of opinions. I haven't read a single one of them, and if I'm fortunate before we end this, I won't have to read one of them,' the majority leader told reporters at the Capitol on Tuesday.

I know reading court cases is not everybody's idea of a fun time, but sometimes you gotta' do some work. Such is the burden of leadership, Harry.

Album of the Day

Brutal Architecture, by Rocket Scientists (1995): Film critics often seem to really hate lots of movies that do well at the box office. Not just rate them as poor, but affirmatively bad. I think one reason for the disconnect between critic and audience is that critics see so many movies, so many of which aren't worth that much, that they vent on some decent pieces of entertainment a little more than they should. Why do I mention that? Because I think my review of this album years ago kind of fit in that category. It's a perfectly enjoyable slice of neo/symph prog, with some really tasty keyboard bits. Often times, that's good enough, but sometimes not good enough to stand out from the crowd.

Not a Problem I Have

One of the nice things about being a public defender is that you don't have to worry about getting paid by your clients. When you do, sometimes weird things happen (via Concurring Opinions):

Oklahoma County District Judge Tammy Bass-LeSure last week allowed Ersland, 57, of Chickasha to be released on $100,000 bail but she banned him from any access to weapons. The hearing today was to see if he had complied with her order.

Ersland told the judge he no longer owns the weapons. Defense attorney Irven Box said he took the weapons and other personal property from Ersland as payment of part of the attorney fees in the case.

Box said he's taken barter as payment before, including comic books. I wonder if he's got a barter to dollars conversion chart in his office?

What Matters

The other big story from the weekend was the murder Sunday of Dr. George Tiller, gunned down at his church, apparently by a militant pro-lifer. Dr. Tiller performed late term abortions. In all the discussion that's ensued, a lot has been made of the fact that the suspect, Scott Roeder, is a fundamentalist Christian. As for what that means and how it plays into the crime, I found this observation from PZ to be worth repeating:

In many ways, though, his religiosity is going to be a distraction. It simply doesn't matter, and the strongest conclusion we can draw from it is that religion fails to provide a reasonable framework for morality, since it is so easily and regularly subverted to rationalize evil. Focus instead on the root of the problem: Roeder was an amoral, obsessed nut who found support for his delusions among a particularly ugly American subculture. Gods don't matter. And when you think gods do, you lose sight of the truth: other people matter.

Quoted for truth, as the kids say.

On Empathy

The big news while I was gone was Obama's nomination of Judge Sonia Sotomayor to replace Justice Souter on the Supreme Court. As with the nominations of Justice Alito and Chief Justice Roberts, I won't make any political commentary about the nomination, as I have business before the Court. However, I did want to pass along one little bit of trivia on the subject of judges and empathy.

Ever since Souter announced his retirement, conservatives have jumped on Obama's statements about empathy being a good quality in a judge. Sounds reasonable to me, but some GOPers apparently want turn any confirmation hearing into an extended Voight-Kampff test:



The trivia is something Ed Brayton dug up, specifically about a judge whose nominating President said "has great empathy" and who said at his confirmation hearing:

So you feel that you have the same fate, or could have, as those individuals. So I can walk in their shoes and I could bring something different to the Court.

That was Clarence Thomas.

I'm Baaack

Yes, friend(s), I've returned from Big Sky country in one piece, including four separate and nerve wracking flights. I'm a horrible flier. If that Air France jet had gone down a day earlier, I would have walked all the way home from Wyoming. I'm not even kidding.

Once I get mine and the girlfriend's pictures sorted out, I'll have a series of posts, The Douglas Chronicles, about the adventure. Until then, regular programing resumes . . .

Gone Ranchin'

I'm trading in the Ranch for a real ranch for the next week or so. The girlfriend's mother and her husband have a ranch out in Wyoming where they raise critters for fiber products. It'll be my first trip to Big Sky country (unless Idaho counts). I'm a bit apprehensive about running into this guy (Photo by Whatknot via Flickr):


It's the world's largest jackelope, allegedly. It will haunt my dreams, I'm sure.

Back in a bit! Yes, before you ask - there will be pictures of me with said critters. Hilarity is sure to ensue.

Album of the Day

Ignis Fatuus, by White Willow (1995): I tend to buy CDs in batches. When I do, sometimes one of them will get a little lost in the shuffle. While others either reach out and grab me at first listen, or turn me off, the lost ones register a "nice" and get shuffled to the bottom of the deck. This Norwegian band's debut album is one of the dozen or so new albums I brought home from 3RP last year. On the first few listens, it was "nice," but not particularly noteworthy. Returning to it over the past year, it's really grown on me, particularly if I'm in the right mood. The music is dark and folky, with lots of atmosphere. The vibe I get is that this would be the perfect album to listen to while curled up by a roaring fire in a cottage on a bluff overlooking the North Sea. If you catch my drift.

When Science Attacks

Well, sort of. This comic from PhD Comics (via Reason) sums up quite well what happens when the media gets a hold of breaking scientific studies:


For a less comic evaluation of the media hype surrounding the unveiling of the "missing link" this week, see Ed's post over at Dispatches from the Culture Wars.

Who Can It Be Knocking At My Door?

Maybe it's the Federal Communications Commission, but the knocking is only a courtesy. They think they can just come in and help themselves (via Volokh):

You may not know it, but if you have a wireless router, a cordless phone, remote car-door opener, baby monitor or cellphone in your house, the FCC claims the right to enter your home without a warrant at any time of the day or night in order to inspect it.

That’s the upshot of the rules the agency has followed for years to monitor licensed television and radio stations, and to crack down on pirate radio broadcasters. And the commission maintains the same policy applies to any licensed or unlicensed radio-frequency device.

It's not at all certain that this would pass Fourth Amendment muster (Conspirator Orin Kerr opines in the article that it would not) and it's never really been tested in court. Still, I wouldn't want to be the one to go through the trouble of proving it.

Indy @ 100

Sunday marks the 93rd running of the Indy 500. Seeing as how the race missed some years during the World Wars, it's actually been 100 years since the first race 'round the Brickyard. It's still not the race it once was, but last year's end to the IRL/Champ Car split helped things immensely. Bump Day produced some actual drama this year, for instance.

I'm looking forward to the race, particularly to see if Paul Tracy can erase the memories of his near win in 2002. USA Today has all the info you need to get ready.

Album of the Day

Sleeping in Traffic, Part 1, by Beardfish (2007): This Swedish quartet came to ProgDay in 2006 and took the place by storm. Since then, they've produced two parts of Sleeping in Traffic and will be back in the States both for NEARFest and as part of Dream Theater's Progressive Nation Tour. I hope I can catch them live, 'cause while they're sound is firmly rooted in 70s prog (with a helping of Zappa here and there), it pretty much scratches every musical itch I have. Chunky guitars, widdly synth solos, occasionally profound lyrics (as on this album's centerpiece, "Roulette"). What's not to love?

On Those Mighty Morphin Power Muslims

What to do with the detainees at Guantanamo when it closes is a difficult issue, I admit. But one part of the debate is just completely insane. I agree with Glenn Greenwald:

The 'debate' over all the bad and scary things that will happen if Obama closes Guantanamo and we then incarcerate those detainees in American prisons is so painfully stupid even by the standards of our political discourse that it's hard to put into words . . .

Contrary to what the GOP might want folks to believe, nobody is arguing for taking all the Gitmo folks, dropping them in the middle of (oh, say) Lincoln, Nebraska with a gun and $20, and saying "have a nice day." The issues involve how to charge, try, and, if necessary, continue to detain these folks. Keeping them locked up, safely away from the general public, won't be a problem. As Digby puts it:

Prisons are what we do. We have more people locked up that any other nation on earth. It's one of our biggest industries. We may be bad at everything else, but locking people up we are really,really good at. The idea that we can't keep a few broken, foreign, torture victims in jail is patently absurd. If you don't believe that the government is capable of protecting a prison from attack by foreign terrorists, anyone who lives near a nuclear power plant should be completely petrified. Talk about a target.

The federal supermax prison out in Colorado currently holds convicted terrorists like Terry Nichols, Eric Rudolph, The Unabomber,Zacarias Moussaoui, Richard Reid, and the guys who perpetrated the first attack on the World Trade Center. Holding bad people in bondage is one thing we do very very well.

Of course, when the debate gets this insane, leave it to Jon Stewart to nail it:

The Daily Show With Jon Stewart	M - Th 11p / 10c
Guantanamo Baywatch - The Final Season
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Good On Green Day

I'm not a huge Green Day fan, but my estimation of them went up a bit when I heard about their Wal-Mart brush off. Their new album, 21st Century Breakdown, has bad words on it, which means that Wal-Mart won't sell it without editing. Unlike most big name artists, Green Day said, "thanks, but no thanks" and refused to comply. So Wal-Mart won't sell the new album.

Make no mistake, Wal-Mart is completely within its rights to decide what it wants to sell or not sell (it doesn't, contrary to what guitarist Mike Dirnt thinks, have an "obligation to sell people the correct art." But Green Day (and their label) has the equal right to not play by their rules. It's the free market in action.

Maybe I'll have to go pick up a copy of 21st Century Breakdown after all.

Under the Bridge

I know nobody wants to have sex offenders living in their neighborhoods. That's been the impetus restrictions on sex offenders living within x feet of schools, churches, parks, and the like. This leads to problems (maybe unintended) in that (a) these folks aren't going to be in prison forever and need to live somewhere and (b) regulations make it increasingly difficult for them to actually live anywhere. It's a recipe for marginalization, recidivism, and other problems that nobody really wants to deal with.

At the extreme, those restrictions lead to situations like this one, in Miami (via SL&P):

In Miami, a causeway in the middle of Biscayne Bay has become home to one of the county's least desirable populations: sex offenders.

What began a few years ago as a stopgap solution has become de facto public policy. For sex offenders with few resources who want to stay in Miami, there's just one option: an encampment of tents and shacks on the Julia Tuttle Causeway.

This isn't something happening under the radar, either. Probation officers drop recently released defenders off at the camp on a regular basis. There's got to be a better way.

At least they're not living in a van down by the river.

Album of the Day

Who's Next, by The Who (1971): If all albums that arose from the ashes of a failed concept album were this good, the world would be a hell of a place. On the heels of Tommy, Pete Townshend envisioned another concept album, called Lifehouse, a sprawling sci-fi tale of music in a future society linked together in something quite like the Net. The project fell apart, but several of the songs initially meant for it made their way to this album. Although best known for the two classic rock staples that bookend it - "Baba O'Riley" and "Won't Get Fooled Again" - there's an awful lot of excellent stuff in between. Including my personal favorite underrated Who tune, "The Song Is Over." A classic.

Bluebird Afloat Again

Three hundred miles an hour on water
In your purpose-built machine
No one dared to call a boat
Screaming blue

On January 4, 1967 Donald Campbell attempted to set a world speed record for boats on Coniston Water in England. His craft, like the many cars and boats raced by his father and other family members, was called Bluebird.

Campbell's target was 300 miles per hour. His first run averaged 297.6 miles per hour.

At such speeds, things fly

On the return run, at over 320 miles per hour, only 150 yards from the end of the measured mile, disaster struck. The nose of the craft got air, it flipped over, and the nose plowed into the surface of the lake. Campbell was killed and Bluebird sank.

The only reason I know about that story is that Marillion wrote a song about it, "Out of This World" (from whence the above quotes came), for their 1995 album, Afraid of Sunlight. It's a haunting song, which utilizes some of the radio transmissions from the time of the crash:



The song sparked an interest in raising Bluebird from its resting place. That happened, in 2001, with the Steves Hogarth and Rothery (Rothers providing photographic services) along for the ride.

Since then, it's been the goal to get Bluebird restored, repaired, and back on the water. Now they will have the chance, and have been given the green light for a 100 mile per hour run back on Coniston Water:

[Project director Bill Smith] added: 'This means so much to me personally because I started looking for the wreck in 1996 and to my mind it is obvious that Coniston is the right place to attempt to get it back in the water.'

'Gina [Donald Campbell's daughter] will be thrilled. She wants to see her father's memory brought to the fore. She sees this as a fitting memorial.'

Conan the Comedian

The upcoming issue of the New York Times Magazine will have a lengthy article about Conan O'brien and his move to The Tonight Show. It's an interesting piece, not only for the behind the scenes insights as to Conan's last show in New York, but also the whole world of late night TV and the attendant politics. It also relates just how close Conan was to cratering as a late night host back at the very beginning. He only really survived because Greg Kinnear didn't want the job and NBC couldn't find anybody else to replace him with.

That's underscored in the DVD commentary to an episode of The Simpsons that aired after he left the show to take on late night. In the episode, Bart becomes a media phenomenon for a catch phrase he utters after destroying a set during a broadcast of a Krusty the Clown show. As part of his media blitz, Bart goes on Conan's late night show, during which he tries to break out of his one-line shtick (Conan doesn't let him and then announces that "only I may dance"). In the commentary, they talk about the risk they took in putting Bart on Conan's show because they thought Conan would be off the air by the time the episode hit TV. Luckily, it all worked out.

Album of the Day

Karma, by NDV (2001): NDV is Nick D'Virgilio, who, at the time this album was made, was the drummer for Spock's Beard. It would be two more years before Nick took over as front man with the Beard (see yesterday's AotD). On this disc, he covers a lot of stylistic ground, roping into the process a couple of his Beard buddies, the rest of what was then the four-piece Mike Keneally band, and even a posthumous contribution from Kevin Gilbert. It's a little overstuffed, and the obligatory epic at the end is a little forced, but otherwise the album showcases Nick's talents as a writer, arranger, and performer.

Our Jihad

Remember back in the early days of the War on Terra, when Duhbya accidental let slip the "c word" - crusade? He rightly backed away from the term. After all, anything we did in the Middle East wouldn't go over well if the locals perceived it as a holy war. And we'd never do something that unbelievable simple minded anyway, right? Right!?

*Sigh* Unfortunately, it doesn't look that way. The folks at GQ (of all people - via Ed) have gotten their hands on a series of intelligence briefing documents, prepared for the president in the early days of the Iraq War. The cover of each has a Bible quote, apparently in an attempt to buck up morale, or something. See them all here, in their horrible glory.

The highlights are just amazing. One cover displays a verse from 1 Peter 2:15, over top a picture of Saddam Hussein giving a speech on TV, saying:

It is God's will that by doing good you should silence the ignorant talk of foolish men.

As bad as that one is, the next one really takes the cake. Over a picture of American tanks rumbling through the Swords of Qādisīyah arch in Baghdad, a verse from Isaiah 26:2:

Open the gates that the righteous nation may enter, The nation that keeps faith.

Disgusting. Somebody in the administration thought we were doing God's work. Was it Duhbya? Rumsfeld? Some lower level lackey? Does it really matter, at this point?

The Iraq War was discussed, in the highest levels of the government, as a holy war. Maybe Duhbya was onto something when he called for a crusade, after all.

What's Chinese for "NIMBY"?

I've never been a huge fan of amusement parks (I'm scared shitless of roller coasters), but maybe that's because I've never been to one like this:

The park manager, Lu Xiaoqing, had planned to have on hand naked human sculptures, giant models of genitals, sex technique 'workshops' and a photography exhibition about the history of sex, according to China Daily. The displays would have included lessons on safe sex and the proper use of condoms.

Mr. Lu told China Daily that the park was being built 'for the good of the public.' Love Land would be useful for sex education, he said, and help adults 'enjoy a harmonious sex life.'

Unfortunately for Mr. Lu, the local folks were just as squeamish about a sex theme park in their back yard as their American counterparts would be. The Government shut it down before it even opened, but not before half of an oversized female mannequin (the bottom half) was erected, complete with red G-string!

Great Moments In Cop Talk

A colleague of mine told a story once about a story he heard on NPR about a women the NYPD had brought in to be a language consultant. The problem? They were drowning in "cop talk." As the consultant put it (I'm paraphrasing, of course) "every day, millions of people in this city get out of bed, get in their cars, and go to the office, except for the members of the NYPD, who arise from their slumber, egress from their domiciles, and proceed to their place of work."

It really can be that bad. My personal favorite is the euphemistic "escorted the subject to the ground," which really means "we beat him down and jumped on him." As proof of how tortured the language can get, consider this gem from a transcript I was reading this afternoon.

To set the scene, the cop (actually a DEA agent) is testifying about responding to a report of drugs being sold on a street corner. He and his partner have driven up to the area and sighted the suspect. Then he testified:

Once I seen him, I asked to be exited from the vehicle.

Now, c'mon, do you really think he asked his partner to be "exited from the vehicle"? I seriously doubt it. Good for a chuckle, though (and it will be quoted verbatim in the brief).

Album of the Day

Feel Euphoria, by Spock's Beard (2003): I had actually gotten tired of the Beard by the time Neal Morse went to the Lordy, but I had to come back and check out their first effort without him. The result shows that the Nick D'Virgilio led version of the band can do it on their own, but there's a certain magic missing from the old days. That being said, there's some good stuff here and the band continues to be a dynmic live act. I'm just not necessarily along for the ride anymore.

Test Away

I understand that prosecutors aren't required to roll over every time a defendant seeks a new trial, claiming actual innocence. I also understand that DNA, while a wonderful tool, is not a criminal justice magic bullet. But I'd like to think we'd all agree that knowing what the DNA says about a case is relevant to the overall equation.

To the contrary, this article in today's New York Times chronicles the difficulty some defendants have had seeking DNA testing in their cases. In some instances, the prosecution's objections are maddeningly circular:

In a case before the Pennsylvania Supreme Court, for example, Lynne Abraham, the Philadelphia district attorney, argued that the defendant, Anthony Wright, was not entitled to DNA testing because of the overwhelming evidence presented at trial, including his confession, four witnesses and clothing stained with the victims’ blood that the police said was found at Mr. Wright’s home. The Pennsylvania DNA statute requires the courts to determine if there is a “reasonable possibility” that the test would prove innocence.But here's the thing.

If the DNA contradicts that evidence, it might show that the other evidence is simply not reliable. We know, from countless death row exonerations, that an inconsistent DNA analysis can lead to investigation that shows that eyewitnesses were wrong or that a defendant's confession was coerced.

DNA evidence is the closest we can come, in some cases, to "objective truth," at least on some issues. It's value as a jumping off point for other facets of the case should lead to its testing without such obstruction.

A Tribute Too Far

I'll admit, I've never quite really gotten the "tribute band" concept, wherein some group of musicians gather together to recreate a dead band's live show, sometimes down to the stage design and period instruments.

Don't get me wrong. If The Musical Box was performing somewhere nearby, I'd go see them, but, really, if I want to listen to note perfect versions of Genesis tunes, I've got all the albums (including live ones), so why bother? I mean, even Beethoven's Ninth gets played in slightly different ways from orchestra to orchestra, why should "Firth of Fifth" be any different? But at least with a group like Genesis, you're dealing with a fairly set structure, musically speaking.

This one, I just don't get at all. Because the girlfriend and I saw Adiran Belew at Club Cafe a while back, I get regular emails from them about upcoming shows. On Thursday, they'll play host to Strange Design which, according to their website is known for:

[r]ecreating Phish shows in their entirety

I'm not particularly a Phish phan, but wasn't part of their appeal the fact that no two shows were the same? The constantly shifting setlists and extensive improvising made each performance unique, right? Doesn't recreating any single one of them seem pretty much pointless? Maybe I'm reading this wrong, but it doesn't seem likely.

I appreciate the desire of folks to hear their favorite music played live, even if not by the original artists, I just don't get the slavery to "authentic" recreations. Wouldn't it be better to hear that music through new ears?

Richmond Reflections

I was in Richmond all last week (hence the light blogging), making a pair of oral arguments in front of the Fourth Circuit. For wildly different reasons, they'll both go down in my brain as particularly memorable.

My argument on Tuesday morning involved a sentencing issue. At the time my client was sentenced, the courts were still grappling with how post-Booker sentencing worked, and the district court went on at length about how it couldn't figure out how to apply a sentence below the Guidelines, as was appropriate to the facts and history of the client. In the two plus years that the case languished on appeal, the Supreme Court clarified a lot of things. Prior to the argument, I filed a supplemental brief laying out the recent developments in the law. For some unknown reason, the Government didn't reply, even though they'd asked to do so.

By the time the case was set for oral argument, it was pretty clear that my client needed a new sentencing hearing. After sitting through a mind numbing argument on a civil case (enlivened only by the fact that it sounded as if Foghorn Leghorn represented the plaintiff), I strode to the lectern, opened my notebook, and launched into my introduction. Before I even really moved on to any argument, the presiding judge cut me off and said, basically, "it certainly looks like this case needs to remanded for resentencing. Let's see what the Government has to say."

50 seconds! My argument lasted 50 seconds! The countdown clock on the lectern never even made it all the way through the 14th minute! My co-counsel said that I looked a little bit hurt, as if I had some brilliant points I'd worked up, but all for naught. That's somewhat true, but sometimes you just got to sit down and shut up. The panel grilled the Government for about 10 minutes, to no avail. They didn't even ask if I had any rebuttal. Safe to say, I think we won that one.

Friday morning's argument was a little different. For one thing, although the main issue (another sentencing issue) was pretty strong, it actually had arguments on both sides. For another, as my co-counsel and I walked to court, there were two empty school busses parked outside and a line snaking out the door. The possibility of a fully gallery rattled through my brain. We wound our way through the line of school kids and slipped through the metal detector.

I should say, at this point, that in the Fourth Circuit they do not tell you who is on the three-judge panel before which you'll be arguing. I think the theory is that it keeps attorneys from tailoring their arguments to a particular judge, but it's not a standard practice, as far as I know. The first time you get a chance to find out who is on your panel is after getting past security by checking out the docket sheets.

When listing the judges on each panel, they all have titles before their last names - Judge, Senior Judge, etc. - so I tend to skim over that and check out the names. Sometimes, a judge from outside the Fourth Circuit, or from one of the district courts, is sitting by designation, so the names aren't all familiar. That was the case on my panel, as the first name on the list was "O'Connor."

"Hmm," I thought, "there's no O'Connor on the Fourth Circuit. Wonder where he's from?" So I scanned back to the title - "Justice." Wait a sec - "Justice O'Connor"? Holy shit, I was going to argue in front of Sandra Day O'Connor! Since her retirement from the Court, O'Connor has sat on several circuit courts, so it's not unknown for it to happen, but I certainly wasn't expecting it. That probably explained the presence of the school kids, all of whom crammed into the court's en banc courtroom for our slate of arguments.

The argument itself went pretty well. The same presiding judge I had on Tuesday was presiding again, and even recognized me ("Weren't you here yesterday?"). Justice O'Connor seemed very sympathetic to the argument I was making, as did one of the other judges, so I have high hopes for this one as well. Regardless how it turns out, however, it'll be a day I long remember.

This Creeps Me Out

I can't quite put my finger on why, but somehow training Boy Scouts to be the next generation SWAT teams just isn't right:

The responding officers — eight teenage boys and girls, the youngest 14 — face tripwire, a thin cloud of poisonous gas and loud shots — BAM! BAM! — fired from behind a flimsy wall. They move quickly, pellet guns drawn and masks affixed.

'United States Border Patrol! Put your hands up!' screams one in a voice cracking with adolescent determination as the suspect is subdued.

It's part of the Explorers program, which allows girls (but probably still not atheists or gays) and has existed for decades for kids interested in becoming cops and firefighters.

Maybe it's the picture in the piece, with a bunch of kids made up like they're about to take down a drug den. Or the girl who waxes poetic about how she loves her gun. It's just . . . creepy!

Still, there's some interesting truths sticking out here and there:

In a simulation here of a raid on a marijuana field, several Explorers were instructed on how to quiet an obstreperous lookout.

'Put him on his face and put a knee in his back,' a Border Patrol agent explained. 'I guarantee that he’ll shut up.'

One participant, Felix Arce, 16, said he liked 'the discipline of the program,' which was something he said his life was lacking. 'I want to be a lawyer, and this teaches you about how crimes are committed,' he said.

Yes, Felix, you pay attention. You'll learn all about how to violate a person's civil liberties! I wonder if they have a badge for that?

A Question

Would you buy a legal argument from this man?


Let's hope so, or I'll be out of a job!

Photo of your humble narrator, in cynic mode prior to last month's autocross, courtesy of Martin Valent.

How's That for Injustice

This story (via) borders on the unbelievable, but it appears to be legit.

A 20-year old British woman named Samantha Orobator was arrested in Laos for allegedly smuggling heroin into the country. She has been imprisoned, awaiting trial, ever since. If convicted, she faces death by firing squad. In the intervening five months, she got pregnant. Given that she's been in jail the whole time, the logical conclusion is that she's been raped while stashed away in "one of Asia's most squalid jails."

She's been given a choice:

The 20-year-old goes on trial this week and will be asked to declare publicly that she was not raped in Phonthong prison, one of Asia's most squalid jails.

If Orobator co-operates, she will be transferred from Laos to a UK prison under a new treaty signed between the two countries on Thursday. If not, her trial will be postponed and she will return to jail in Laos.

If she faces trial again after the birth of her child, she will not have the immunity from execution that pregnancy gives her under the Laos penal code.

In other words, if she's willing to lie about being raped, she can save her life. How civilized. That would never happen in the United States, would it? Oh:

In 1987, a jury in Billings, Mont., found that an 18-year-old named Jimmy Ray Bromgard had raped an 8-year-old girl. On the witness stand and afterward, Mr. Bromgard insisted he was innocent.

Judge G. Todd Baugh said this suggested a lack of remorse, and he sentenced Mr. Bromgard to 40 years.

In prison, Mr. Bromgard declined to participate in group therapy sessions for sex offenders.

'I would have had to admit my guilt,' he said. 'I'd rather sit there in prison for all my life than admit my guilt.'

That decision did not sit well with the parole board, which denied his application for an early release in 2000, citing his refusal to take part in the sessions.

It turns out Mr. Bromgard was telling the truth. DNA evidence cleared him, and he was released from prison last month. He is now 33 and spent about half of his life in prison.

No, no, I'm not saying one is as bad as the other. But they both suck pretty bad.

So who is the father of Orobator's unborn child? The Laotian authorties have a theory:

Laotian leaders are sensitive to suggestions Orobator might have been raped in jail.

'We don't want the world to blame us,' Mr Nuanthasing said.

Asked who fathered the baby, Mr Nuanthasing said: 'It is a mystery - maybe it is a baby from the sky.'

Hey, it's worked before.

Here Come the Sex Police

And they're carrying decibel meters. What the hell? Leave it to the Brits:

At the end of April, Caroline Cartwright, a 48-year-old housewife from Wearside in the north east of England, was remanded in custody for having 'excessively noisy sex.' The cops took her in after neighbors complained of hearing her 'shouting and groaning' and her "bed banging against the wall of her home.' Cartwright has, quite reasonably, defended her inalienable right to be a howler: 'I can't stop making noise during sex. It's unnatural to not make any noises and I don't think that I am particularly loud.'

OK, that's not the whole story, which is actually worse. Cartwright was actually arrested for violating an "Anti-Social Behaviour Order," a civil order obtained by a fussy neighbor because of Cartwright's prior sexual escapades. The order prevents her from making "excessive noise during sex" in the whole of the UK! A violation is a crime.

For fuck's sake - literally - everyone has had to deal with their neighbors noisily gettin' it on at some point in their lives. You know what? You roll over, stuff a pillow in your ear, and get on with your life. You don't call the fucking police! Sex isn't really supposed to be polite (unless that's your kink). If there's one place you should be able to let yourself go and let go of your troubles, it's in bed. Otherwise, what's the point?

Album of Last Friday

Head, by Thieves' Kitchen (2000): Last year, Thieves' Kitchen made a splash with The Water Road, an album a couple of lineup changes and several stylistic jumps away from this, their debut. Head is a pretty standard up tempo symphonic prog album, although a little busier than most. Honestly, large hunks of it are forgettable, if pleasant enough going through. But the two epics that booked the disc, "Mute" and "T.A.N.U.S.", are worth a listen. Certainly a change from the more laid back pastoral style they favor these days.

Album of the Day

The Allegory of Light, by Syzygy (2003): This is one of those discs I got a couple of weeks ago to get ready for this year's version of 3RP. This is the only release by this American band (there's an Australian band by the same name), which is second on the lineup for Sunday. After a couple weeks listening, this album has moved up from "meh" to "pretty damn good" status in my book. It's mostly instrumental, with lots of nice guitar and synth breaks scattered throughout. It's a little rough around the edges (particularly when vocals are involved), but there's a lot of good going on. Look forward to seeing them play live.

In Which I Defend Justice Scalia

Supreme Court Justice Antonin Scalia has found himself in an odd brouhaha about privacy on the Internet. This ABA Journal article sets out the basics.

During some public remarks, Scalia scoffed at the idea that anybody had any real privacy interest in the wealth of information floating around online:

'Every single datum about my life is private? That’s silly,' Scalia [said]. . . .

Scalia said he was largely untroubled by such Internet tracking. 'I don’t find that particularly offensive,” he said. “I don’t find it a secret what I buy, unless it’s shameful.'

* * *

Considering every fact about someone’s life private is 'extraordinary,' he said, noting that data such as addresses have long been discernible, even if technology has made them easier to find.

Following those comments, a law prof at Fordham gave his students an assignment he does every year - go out and collect as much personal information (legally) about a particular person using publicly available sources. Some years, the prof uses himself as a target. This year, he used Scalia. The result:

His class turned in a 15-page dossier that included not only Scalia's home address, home phone number and home value, but his food and movie preferences, his wife's personal e-mail address and photos of his grandchildren, reports Above the Law.

The collection of data, which has not been made public, prompted a reaction from Scalia:

'Professor Reidenberg's exercise is an example of perfectly legal, abominably poor judgment. Since he was not teaching a course in judgment, I presume he felt no responsibility to display any,' the justice says, among other comments.

Some commentators have seen Scalia's response as hypocritical, as he expresses displeasure about the prof's data gathering class.

I have to admit, I don't see it. Scalia's initial remarks, to me, seem to express the truth of the matter that lots of "private" information is out there about most folks and the access to it means it simply is not private. Some of it has information that has always been "public," in the sense that it's freely available down in the courthouse records, but is just more accessible due to online compilation sources.

Scalia's reaction has nothing to do with the legality of the prof's project. It expresses displeasure, but due to the fact that the prof chose to have the data collected, not that he could. In other words, I don't see the hypocrisy. This isn't a situation where someone rails against "frivolous" lawsuits and then, when minorly injured, sues someone under shady circumstances. This is more like someone stating (correctly) that a law making it illegal to insult someone's mother would not pass First Amendment muster then being pissed that someone said something nasty about his mother. One doesn't necessarily have anything to do with the other.

That being said, I think the prof's project is a valuable one, because I don't think most people don't realize how much stuff is out there floating around about them. Any maybe Scalia didn't really realize that, either, and that's why he's honked off. Maybe that's true, but I'm willing to give him the benefit of the doubt. On this one, at least.

When Will the Time Be Right?

Maybe not before 10pm, if you're hocking boner pills on broadcast TV.

In his dissenting opinion in the recent "fleeting expletives" case, Justice Stevens wrote in a snarky footnote:

It is ironic, to say the least, that while the FCC patrols the airwaves for words that have a tenuous relationship with sex or excrement, commercials broadcast during prime-time hours frequently ask viewers whether they too are battling erectile dysfunction or are having trouble going to the bathroom.

It appears that someone was listening. Per Prawfsblawg, Representative Jim Moran (D-Va) has introduced legislation that would:

insist that the FCC treat treat as indecent and bar from network airwaves 'between 6 a.m. and 10 p.m . . . any advertisement for a medication for the treatment of erectile dysfunction or for male enhancement.'

As Marc points out, that is probably not the reaction Stevens hoped to provoke.

While I'm generally opposed to the idea of the FCC playing taste police on TV, as long as we're adding to the list of things verboten on the tube, can we add all commercials for toilet paper and related products, especially the ones with the bears shitting in the woods? If I never hear about the dangers of ass lint again, I will be a happy man.

LOL Me Up, Scotty

Funny but true?



I LOL'd. And I say that as someone who actually likes the slowest and least action packed entry in the series the best!

Album of the Day

Beyond Reality, by Cast (1996):Last year, I wrote that I finally figured out that Swedish symph proggers The Flower Kings were like comfort food for the prog soul – not particularly innovative or challenging, but very good at what they do, which is channel the 70s greats. Along those line, but perhaps as a nice spicy burrito is to a plate of Swedish meatballs, Mexico’s Cast fits the same bill. Though more rooted to the mid-period Genesis sound than the Kings, they channel it equally well. Enjoyable going down, but ultimately not something that leaves a huge lasting impression. Sometimes, that’s just what you want.

Ebert on Death

And life, the universe, and everything, in the latest post over at his place. I don’t agree with all of what he says, but I appreciate his point of view. And I join in this idea:

I know it is coming, and I do not fear it, because I believe there is nothing on the other side of death to fear. I hope to be spared as much pain as possible on the approach path. I was perfectly content before I was born, and I think of death as the same state. What I am grateful for is the gift of intelligence, and for life, love, wonder, and laughter. You can't say it wasn't interesting. My lifetime's memories are what I have brought home from the trip. I will require them for eternity no more than that little souvenir of the Eiffel Tower I brought home from Paris.

As I’ve said before, to quoth Buckethead, “I ain’t afraid to die. I just don’t want to be around when it happens, baby.”

The UK Says "No" to Weiner/Savage & Phelps

The UK has recently garnered some attention for turning some folks away at the border, denying them entry to the country based on their social/political views. The first big one was Dutch filmmaker Geert Wilders, due to his film Fitna. Now the Home Secretary has released the names of 16 folks denied entry – a “least wanted” list, if you will. The list includes a few American loony luminaries:

The list of the 16 'least wanted' includes radio talk show host Michael Savage, real name Michael Weiner.

'This is someone who has fallen into the category of fomenting hatred, of such extreme views and expressing them in such a way that it is actually likely to cause inter-community tension or even violence if that person were allowed into the country,' Ms Smith told BBC Breakfast.

Also named are American Baptist pastor Fred Waldron Phelps Snr and his daughter Shirley Phelps-Roper, who have picketed the funerals of Aids victims and claimed the deaths of US soldiers are a punishment for US tolerance of homosexuality.

Now, I’m a First Amendment stickler. I don’t want the government to rip Weiner/Savage off the air because of what he says or drop the hammer on the Phelps clan for their horrific protests. You can't legislate taste or class. And I would be equally critical if the Brits criminally prosecuted them. But when it comes to the decision about who gets to come into your country, there’s more leeway. So I’ll take a little smug satisfaction in the UK’s smackdown of those idiots.

Clarkson Comes Around

When it comes to my entertainment passions – soccer, road racing, prog – my natural cynicism sometimes gives way to the naïve certainty that the only reason those things aren’t more popular is simply because people haven’t given them an honest try. They’re so obviously wonderful, after all, who could resist their charms? Occasionally, some anecdote comes along that bolsters that rare bit of faith I have.

Jeremy Clarkson is best known in the US as the acerbic host of Top Gear. In the UK, he’s also a bit of a pop culture figure, with a regular column in British newspapers. In a recent entry, he chronicled his conversion from football (er, soccer) hater to devoted fan.

He started here:

Over the years I have argued that football is a stupid game in which 22 overpaid nancy boys with idiotic hair run around a field attempting to kick an inflated sheep’s pancreas into some netting while an audience of several thousand van drivers beat one another over the head with bottles and chairs.

And wound up here:

So there we are, then. I am now a football fan. I know this because in one afternoon I learnt I’m not a football fan at all. I’m a fan of Chelsea. Chelsea are the only team that can play. Chelsea players have by far the most impressive reproductive organs. Stamford Bridge is my church. The men who play there are my Gods.

Er, OK, so maybe he's not embraced the totality of the beautiful game yet. But it's a start! So, c’mon, American soccer haters – if a professional curmudgeon like Clarkson can come around, so can you!

UPDATE: Oh, my. I just finished watching Chelsea's Champion's League semifinal from today. Jeremy must be so amazingly pissed!

"Grand Theft" Defined

Breaking into a house is one thing, but stealing the whole damn thing? That takes guts:

Police in Greece say robbers near Athens have stolen everything including the kitchen sink, lifting a prefabricated home off its foundation and spiriting it away. Police said the owner went to visit his 750-square-foot (70-square meter) vacation home Monday in the coastal area of Rafina, 15.5 miles (25 kilometers) east of Athens, and discovered it was missing, along with its contents.

Not exactly a palatial estate, but an impressive heist nonetheless.

Album of the Day

A Favor to the Muse, by The Mandrake Project (2006): At every prog festival, there seems to be one band on the bill that nobody's ever heard of who wows the crowd and becomes the talk of the fest. At last year's inaugural 3 Rivers Progressive Rock Festival, it was this local group who were the breakout success. I, for one, was completely knocked out by their performance. Thankfully, their debut album captures what that show was like quite well. The band create a series of lengthy instrumental pieces, some using repetition to a hypnotic and trance-like effect, that seem to build one layer upon another until they reach a fabulous climax. Can't wait to get my hands on their new album.

On "Religious, Superstitious Nonsense"

A federal district court decision from California last week has been widely discussed around the blogosphere. I first picked it up from over at PZ's place, but it's since shown up at Dispatches from the Culture Wars, DailyKos, and Volokh. I understand the interest in the case, but I think a lot of folks are missing a couple of key details that might explain the result.

The case is about a high school student who thought his AP European History teacher was saying naughty things about religion. Needless to say, the conservative Christian student didn't like this. Armed with a tape recorder, he capture 20 statements from his teacher to which he objected. He sued, arguing that the teacher's disrespect for religion violated the First Amendment's Establishment Clause.

The district court finally ruled, concluding that 19 of the statements were OK, in the context of the AP Euro History class. But one of the statements, the judge concluded, violated the First Amendment (emphasis mine):

The Court turns first to Corbett's statement regarding John Peloza. This statement presents the closest question for the Court in assessing secular purpose. Peloza apparently brought suit against Corbett because Corbett was the advisor to a student newspaper which ran an article suggesting that Peloza was teaching religion rather than science in his classroom. Corbett explained to his class that Peloza, a teacher, 'was not telling the kids [Peloza's students] the scientific truth about evolution.' Corbett also told his students that, in response to a request to give Peloza space in the newspaper to present his point of view, Corbett stated, 'I will not leave John Peloza alone to propagandize kids with this religious, superstitious nonsense.'

The court concluded that there was no "legitimate secular purpose in this statement" and it therefore violated the Establishment Clause.

The commentary has round criticized the court's decision, and maybe they're right. It does seem a bit odd. But there are two points that I think people are overlooking when making those criticisms:

First, the full statement found by the court to be problematic is that “I will not leave John Peloza alone to propagandize kids with this religious, superstitious nonsense”. Lots of folks (mostly in comments, but still) are leaving out the word "religious," focusing only on “superstitious nonsense.” How can calling creationism “superstitious nonsense” violate the First Amendment? It depends on what the word “religious” means.

If the teacher really meant “creationism, which is religious, happens to be superstitious nonsense,” the focus is on the discrete doctrine, not “religion” as a whole. On the other hand, if he meant “creationism is a religious belief and is therefore superstitious nonsense,” that takes aim at religion in all its forms. Now, I happen to agree with the second meaning, but that’s taking sides in an epoch-long debate, in which the First Amendment prevents the Government from taking sides. I think the judge probably construed the teacher’s meaning in the second, rather than the first way. The first reading would be less problematic.

Second, all of the 19 other statements which the kid alleged were improper were made in the context of the teacher’s discussion of his area of teaching – AP European History. By contrast, the “religious, superstitious nonsense” line came during a discussion of an ongoing dispute involving another teacher and his attempts to shoehorn creationism into the science curriculum. I think the judge may have been giving the first teacher great latitude when he was speaking in the course of teaching, but found the “nonsense” comment to be an example of him stepping outside that protective bubble. I could be wrong, but that’s the sense I get.

The bottom line is that the Establishment Clause, as currently (and correctly, IMHO) interpreted, requires the Government to be neutral on religious questions. It's just as wrong for a teacher to wax on about the wonders of Jesus in class as it is for him to belittle a religious belief as insane woo. It works both ways. The court in this case may have erred in the factual analysis, but his principles are sound and I don't think the outcome is as clear as some other think.

Huntin' for Jesus

Holy smoke, I hope this isn't right (via PZ):

A former Afghan prime minister has called for an inquiry after Al Jazeera broadcast footage showing Christian US soldiers appearing to be preparing to try and convert Muslims in Afghanistan.

* * *

In one recorded sermon, Lieutenant-Colonel Gary Hensley, the chief of the US military chaplains in Afghanistan, tells soldiers that, as followers of Jesus Christ, they all have a responsibility "to be witnesses for him".

'The special forces guys - they hunt men basically. We do the same things as Christians, we hunt people for Jesus. We do, we hunt them down,' he says.

'Get the hound of heaven after them, so we get them into the kingdom. That's what we do, that's our business.'

Unlike PZ, I understand why we have taxpayer funded chaplains in the military. Men and women sent halfway 'round the world to do high stress jobs should not be deprived of spiritual support, if they so choose.

That being said, my understanding of military chaplains is that they are, regardless of their particular woo variant, sort of Swiss Army Holy Men, helping out soldiers of all faiths (or, indeed, none). They certainly shouldn't be preaching to the guys with guns about how to "hunt people for Jesus," particularly in the middle of a non-Christian nation! Jeez, even Duhbya seemed to grasp that "crusade" was not the right word for what we were doing there.

Regardless of what else we're doing over there, we shouldn't be selling Jesus at the point of a gun.

Careful With Those Pix, Granma

Over at Reason's blog, Radley Balko has the sad tale of the unfortunately named Donna Dull, a 59-year old grandmother who was arrested and charged with producing kiddie porn. How was this loathsome sexual predator caught? A photo developer at Wal-Mart turned her in when she left a roll of film with pictures of her 3-year old granddaughter taking a bath. Charges were eventually dropped, but only after a special prosecutor took over from the local DA, who still thinks he was on the right path.

The more to the story, in Balko's words:

So in sum, if you don't want to get arrested and charged for taking nude photos of your infant or toddler, make sure you know what criteria your local prosecutor uses when navigating that 'gray area' between a cute butt and a criminally alluring one (note: you probably don't want to actually pose this question to him). Also, if you find yourself under investigation after dropping off a roll of film at the CVS, you might want to bake the prosecutor some cookies, since it appears that his 'gut' will be the final arbiter of whether you're a doting parent or an accused child pornographer.

Finally, even if the nude photos you've taken of your kids pass the clear-as-mud 'cute butt,' 'gut feeling,' and 'reasonable people can disagree/that's when it comes to us' tests, and are deemed innocent as a basket of puppies, you could still be in violation of the law if the state determines that the clothed to unclothed-but-innocent ratio in your family photo albums is inappropriate.

Got all that? Good.

Because they promise, you really have nothing to worry about.

I share his sarcasm. The whole article is worth reading, if just to see how hard it is for a prosecutor to admit he was wrong.

On Your Feet

Today's Wall Street Journal (of all places) has an interesting article on one of the more obvious transatlantic differences between sports fans. Americans, by and large, prefer to sit, while Europeans, by and large, prefer to stand and be active during games.

The explanation? We're full of ourselves, basically:

It goes back to 'the middle ages, when the nobility sat and the common plebs stood,' says Rod Sheard, senior principle of the leading sports architecture firm Populous and designer of the Emirates. 'All of America is nobility. Everyone thinks they're king in America.'

Indeed, 19th-century baseball fans in the U.S. quickly developed higher standards for comfort than British soccer fans, says Steven Riess, author of 'Sport in Industrial America, 1850-1920.' 'I think there was a sense of entitlement for American leisure clients that they didn't have in Europe.'

An interesting theory, but is has a couple of holes.

For one thing, there are plenty of American sports where large portions of the crowd are standing and active, mostly in college sports. I spent plenty of time standing in the middle of students sections in high school and college, but I'm not really interested in doing that now.

For another, the divide seems to be less American v. European than soccer v. football/baseball/basketball. American soccer games do, in fact, have decent sized sections of standing, chanting, active fans. The article quotes the leader of La Barra Brava, one of the DC United supporter groups, who says "sitting down is kind of boring" and admits that he doesn't actually watch the game, but spends his time leading the crowd.

That begs the question - is there something about soccer that might lend itself to a more active crowd? Consider that a soccer game is two halves of constant action. It's easy to get up, work yourself into a lather, and maintain that during a 45-minute run of play. Football and baseball (even basketball), on the other hand, are all more relaxed affairs, with built in stoppages and start/stop action. Does cricket have the same sort of active fans as English football does? I doubt it. The rhythm of the game doesn't lend itself to that kind of sustained passion.

In the end, it doesn't really matter all that much. During the two DC United games I've been to, it was a blast to watch and listen to La Barra Brava and the Screaming Eagles do their thing. But that was from the perspective of someone sitting on his ass with a drink in hand. To each his own, eh?

Album of the Day

A General Observation, by Boud Deun (1998): Liner notes can sometimes tell you a lot about a band, but maybe not so much in the case of the Virginia quartet's excellent live album:

In 1964 four young lads from Liverpool, England set out to become the world's greatest rock band. 30 years alter, Boud Deun was formed in Warrenton, Virginia. Coincidence? You be the judge.

One band played guitar, bass, and drums. The other band played guitar, bass, and drums . . . and violin. One band sang wonderful 3 and 4 part hormines. The other band, didn't sing at all. And finally, one band had 23 number one songs. The other band had 1 song 23 people seemed to really like. Simple chance? To the uninitiated perhaps, but to the trained musicologist, a cunning ploy by the four lands from Liverpool to change the course of popular music forever, and for Boud Deun to exploit their ideas for every penny they're worth.

OK, it does tell you they had a sense of humor. It doesn't tell you that they purveyed an blistering style of instrumental rock/fusion that really owes not at all much to the Beatles, unless by "Beatles" you mean "Mahavishnu Orchestra." Regardless, a brilliant band.

Cool Covers

Over at Prawfsblawgs (of all places), Marc rips of an impressive list of favorite cover songs. My attention was drawn to a link of a Peter Gabriel cover of a Vampire Weekend tune that references PG, which is sort of neat.

I've got several cool and obscure covers in my collection. Two that immediately spring to mind were recorded for tribute albums but didn't make it on, for various reasons. One is echolyn's rocking version of the first album Genesis tune "When the Sour Turns to Sweet," which Sony (to whom the band belonged at the time) wouldn't let onto the Magna Carta Genesis tribute. The other is Kevin Gilbert's reworking of "Kashmir" (an even better version resides on the Live at the Troubadour album), which didn't make it onto the big label Zeppelin tribute.

Bela Fleck has a penchant for Beatles covers. Bruce Hornsby works a lot of covers into his live shows, from old Bill Evans standards to Dylan and Dead tunes to a sweet version of "Comfortably Numb" with his own "Fortunate Son." Then there's the bluegrass version of "Super Freak" he did with Ricky Skaggs.

But the best cover in my collection is a Zappa one, because it comes with a good back story. During a concert in Helsinki, Finland in 1974 (memorialized on You Can't Do That on Stage Anymore, Vol. 2), Frank solicited requests and someone called out for the Allman Brothers's classic "Whippin' Post." The band didn't know the tune (Frank asks the guy to hum a few bars, but he can't, to which Frank responds "it must be a John Cage piece") and ripped off into "Montana," instead. Several years after the fact, Frank made due on that request:



Not as killer as the 1988 band's version of "Stairway to Heaven," but still pretty cool.

One Jury Duty Strategy

Homer Simpson once advised that

[g]etting out of jury duty is easy. The trick is to say you're prejudiced against all races.

That's one strategy. Here's another, from a disgruntled Montanan. When asked to explain why he couldn't do jury duty, he wrote (including grammar oddities):

Apparently you morons didn't understand me the first time. I CANNOT take time off from work. I'm not putting my familys wellbeing at stake To participate in this crap. I don't believe in our 'justice' system and I don't want to have a goddam thing to do with it. Jury duty is a complete wast of time. I would rather count the wrinkles on my dogs balls than sit on a jury. Get it through your thick skulls. Leave me the F__k alone.

I can't recommend such, um, candor with the court, but I have to admit that it worked in that case. The guy avoided both jury duty and a contempt charge. I wouldn't bet on other judges to have quite the same sense of humor, however.