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.