Album of the Day

Dancing, by Mike Keneally and Beer for Dolphins (2000): When this album initially came out, I gushed all over it (as the linked review indicates) and six years later I still love it. If you own just one Keneally album (and if that's all you have, really, you're just being silly) this is it. It covers so much stylistic ground that if this one does nothing for you, none of Mike's stuff will.

Album of the Day

Half Alive in Hollywood, by Mike Keneally & Beer for Dolphins (1996): For all his productivity, Keneally is not exactly big on live albums. In fact, until the release of the upcoming Guitar Therapy Live album (order yours now!), Half Alive . . . was the only official live album in Mike's catalog. And it's a bit of a weird one, as you might expect from the title. It covers two discs, recorded a year apart, in very different situations at the Musicians Institute in Hollywood. Disc One is a "live in the studio" recording of the then three-piece BFD (Keneally, bassist Bryan Beller, and drummer Toss Panos) that was conceived as a learning process for the Institute's engineering students. As such, it's a bit rough and Mike retained the starts, stops, rehearsals, and declarations of impending demise to spice things up. The vocals are also a bit off, as Keneally expected to go back and redo them but never got the chance. Disc Two has the same trio raging in front of a live audience at the MI ("Live on a Stage" it's called) and is a little more cohesive.

I like this album a bunch because (a) it covers material from the supposedly fabulous-but-out-of-print Boil That Dust Speck, which I don't own; and (b) Keneally's liner notes are really funny and show what a neat easy going guy he is.

The Price of Trials

Monday's edition of the Pittsburgh Post-Gazette had an interesting article about an aspect of federal criminal law that most outside of the system don't know about: the great incentive for defendants to give up their right to a trial. It all stems from (as most evil things do in the federal system) from the Sentencing Guidelines. One of the few offense level decreases available in the Guidelines is called "acceptance of responsibility." While it is not directly tied to whether or not you go to trial, in the vast majority of cases it is available only to those who plead guilty.

The theory behind that setup is fairly good - in a system that still at least pays lip service to rehabilitation, it is good to reward a criminal defendant for stepping up and admitting his illegal conduct, as that is the first step on the road to redemption. The reality is somewhat different, however, as the prospect of losing acceptance causes many defendants to not risk going to trial, lest they lose (whether a trial is a "close case" or not is largely irrelevant to whether a defendant gets acceptance - you lose it if you go to trial). As a result, the decision about whether to go to trial is not made on the basis of the evidence available to the Government or what that evidence might prove, but on the risk/reward analysis of going to trial.

Album of Yesterday

Kansas, by Kansas (1974): 1974 was a banner year for prog in Europe, so it's a little odd that the most successful of the American quasi-prog bands was only just getting going then (as was Canada's entry, Rush). Kansas was never really a full-on prog band, throwing in lots of AOR-style rock and blues inflected tunes. Still, when they turned their attention to the more symphonic aspects of their repetoire, like "Journey from Mariabronn" and "Apercu," lots of good things happened. Their straddling of prog and more radio-friendly genres set a template still in use today by several bands.

Album of the Day

Live from Austin TX, by Eric Johnson (2005): For a lot of people, their first exposure to guitar master Eric Johnson was on public TV's Austin City Limits. In fact, legend has it that EJ's first appearance on ACL was seen by Prince, who convinced his record label (Warner Brothers) to sign EJ to a contract. Another appearance, after his major-label debut Tones was released, cemented his status. It's that performance that's cataloged on this CD (there's also a companion DVD). This disc is a clear example of EJ's talent.

Children, Open Your Bibles . . .

The state of Georgia is on the verge of passing a law requiring that schools develop a curriculum to teach the Bible in elective classes, using the "good book" itself as the text. On the surface, it seems like not a bad idea: teach the Bible as an academic subject, not an object of worship, discussing its origins, interpretations, and influence on the world. Heck, one of the most interesting classes I took in college was an Old Testament class. But is that how it will really work? Maybe not:

The trouble is that for the classes to be thoughtful, intellectually rigorous, and educationally valuable, they'd have to deal with lots of things that many students (and others) might find quite troubling. If you teach the Merchant of Venice as literature, you probably ought to discuss criticisms of the moral view that the Merchant of Venice seems to express. If you teach classic-era histories (e.g., Livy) in a class on Roman history, you certainly ought to discuss whether the historians are reliable, and whether they might be repeating myth as truth. If you teach historical legal systems in a class on ancient law and culture, you need to discuss ways in which those legal systems may have been unjust by today's standards, or inconsistent even by their own standards.

Are Georgia voters and legislators prepared to have Georgia high school teachers raise these hard questions about the Bible? If so, great. But if the hope is that the teachers will teach the Bible without the same willingness to critique the work -- and to encourage students to think critically about the work -- that we'd expect in serious classes on other works, then that would be a pretty bad step for the Georgia school system to take: It would suggest that the school system is just trying to reinforce students' existing beliefs, rather than teaching them to analyze historical sources carefully and thoughtfully.

In other words, will the right-wing pols who support getting the Bible back in schools be quiet if the text is taught critically, rather than in a praiseworthy way? I agree with Prof. Volokh and don't expect they'd be too happy about that.

The Only Royals I Like

Congrats to English football team Reading FC (aka The Royals), who won promotion to the Premier League over the weekend. I've followed Reading for a couple of years due to the fact that two Americans, midfielder Bobby Convey and keeper Marcus Hahnemann, played critical roles in the team. Next season will mark the first season of top-flight footy for Reading. You can read more about their, um, illustrious history here.

That's Some Pillow Talk

CNN.com has a weird story from India about a man who divorced his wife - in his sleep. Apparently while he slumbered the man murmured "talaq" three times one night. "Talaq" in Arabic means "divorce," apparently:

When local Islamic leaders got to hear, they said Aftab's words constituted a divorce under an Islamic procedure known as 'triple talaq.' The couple, married for 11 years with three children, were told they had to split.

The happy couple are not going quietly into that good night:

The couple, who live in the eastern state of West Bengal, have refused to obey the order and the issue has been referred to a local family counseling center.

But that might not be necessary, according to Islamic scholars:

'This is a totally unnecessary controversy and the local 'community leaders' or whosoever has said it are totally ignorant of Islamic law,' said Zafarul-Islam Khan, an Islamic scholar and editor of The Milli Gazette, a popular Muslim newspaper.

'The law clearly says any action under compulsion or in a state of intoxication has no effect. The case of someone uttering something while asleep falls under this category and will have no impact whatsoever,' Khan told Reuters.

What I want to know is who turned the husband in? Who exactly would have heard his slumbered saying aside from his wife?

Album of the Day

Roots to Branches, by Jethro Tull (1995): When I was in college, my friend and I went to a local music store for a clinic featuring uber bass player Vic Wooten. Neither of us were bass players, but we figured it might still be cool to see Vic strut his stuff up close. As it turns out, it was a joint clinic with another bassist named Steve Bailey, whom I'd never heard of before. He seemed talented enough, but as we stood in line to talk to Vic, I was confronted with the daunting task of making small talk with this musician who I didn't even know existed 90 minutes earlier. My honesty got the best of me, and I simply told him that I hadn't heard any of his work. At that point, he told me that he was on, what was then, the newest Jethro Tull album, Roots to Branches. Hey, I said, I actually had that one. What I didn't say is that I didn't notice anything all that interesting about the bass playing. But it passed the time and eased a weird interlude.

Thats what I think of anytime I pull this disc out.

What Are We Fighting For?

Remember when we went into Afghanistan after 9/11? While the main motivation was to strike back at the closest thing to a nation that was behind the attacks (and to track down bin Laden - marvel at our lack of success on that note), a secondary benefit of our invasion was to boot out the Taliban and move the country towards something vaguely resembling the 20th century. Well, it looks like it's not taking. Our first experiment with democracy in the Islamic world has created a nation where a Christian man may soon be executed because he has rejected Islam. While the Bush administration hems and haws about what could be done in this situation, the local religious leaders are not standing still:

'Rejecting Islam is insulting God. We will not allow God to be humiliated. This
man must die,' said cleric Abdul Raoulf, who is considered a moderate and was
jailed three times for opposing the Taliban before the hard-line regime was
ousted in 2001.

Holy shit - if he's a moderate, what must the extremists be thinking?

Album of Yesterday

Crossing the Desert, by Iris (1996): Iris is a side project shepherded by the guitar player from the French band Arrakeen. It came to my attention because he recruited Marillion's Pete Trewavas and Ian Mosley as his rhythm section. The album could basically be categorized as instrumental neo-prog, although with a much more prominent focus on guitar (the Frenchman doubles on keys). No long Banksish widdly synth solos here, and no real extended bits of guitar hero stuff, either. The compositions are all fairly strong, but only a few ("Tap on Top" and the title track) really stand out.

Album of the Day

Dark Matter, by IQ (2004): The latest release from these neo-prog pioneers is just what you would imagine it is - a solid slice of streamlined prog. To be fair, the band does indulge some new influences here and there. But they are at their best when Martin Orford channels Tony Banks, Mike Holmes does Gilmour/Hackett, and Pete Nichols is, well, Pete Nichols. All epic and such. And there's enough of that here to enjoy.

Rich and Stubborn - Bad Combination

When a party in litigation refuses to do something a court orders, the court can hold that party in contempt, placing him in jail until the party submits to the court's will. The idea is not to punish the recalcitrant party, but to make life so unpleasant as to compel the party to change their tune. That usually takes a period of days (months, at most), at which point either the party submits or the court decides that no amount of jail is going to change things. At that point, everybody goes home.

But it doesn't always work that way. Read the story of H. Beatty Chadwick, a wealthy attorney who has been held in contempt for refusing to comply with the order of a divorce court judge for 10 years! At some point, don't you just have to admit that Chadwick's won and go on?

Album of the Day

Children, by Illuvatar (1995): When I first got back into prog, I bought almost everything I could find that was described as "sounds like mid-period Genesis." As a result, I ended up with a sort of neo-prog overload and turned off to the genre for a while. Children was one of the discs I got during that time. I was a little underwhelmed and filed it away. But recently, I've been listening to some of these things with new ears and really enjoying them. Children still isn't the best example of neo I can think of, but it's solid enough to merit repeated listenings.

Album of Yesterday

Spirit Trail, by Bruce Hornsby (1998): When I think of the first phase of Bruce's post-Range days (Harbor Lights through the live album, Here Come the Noisemakers), I usually overlook this one. It's not as paradigm shattering as Harbor Lights or consistently excellent as Hot House, and it's easy to skip over it to the superb Noisemakers. But it's still got some very good stuff on it. Some judicious editing could have improved things by getting it all on one disc.

Album of the Day

Hatfield and the North, by Hatfield and the North (1973): One of the "aha" moments in my prog renaissance in college was when I discovered Hatfield's second album, The Rotter's Club. It is, in a word, brilliant. Light and jazzy with staggeringly complex arrangements and a well voiced sense of humor. More recently, I discovered their eponymous debut album (in the local FYE, no less) and eagerly snapped it up. It's got lots of great moments, but it seems a little more rough and uncohesive compared to the follow-up. Still, it's hard not to like an album with song titles like "Going Up to People and Tinkling," "Licks for the Ladies," "Lobster In Cleavage Probe," and "Gigantic Land Crabs in Earth Takeover Bid." Plus, one of the bonus tracks is an early B-side version of The Rotter's Club's "Fitter Stoke Has a Bath."

Album of the Day

Crafty Hands, by Happy the Man (1978): For a lot of prog fans, Happy the Man are the American prog band. Working in the wake of prog's high water mark in Europe, the band incorporated lots of symphonic and Canterbury influences for this mostly-instrumental album. When it clicks, it's really good ("Ibby It Is" or "Wind Up Doll Day Wind"). Sometimes, however, it gets so laid back as to verge on New Age ("Morning Sun"), which is a bad thing. In addition, none of it strikes me as being distinctly "American" prog in the way, say, that The Dixie Dregs stuff does.

E tu, Howard?

I've never been a huge fan of Howard Stern. His radio show wasn't on the air around here (when it was actually "on the air") and the bits of it I saw on E! were more dumb and juvenile than actually funny. I did like his autobio Private Parts, however, particularly as it played up his struggle with "the man" and his fight to allow obnoxious jerks everywhere to be, well, obnoxious jerks. I put him in the same pantheon of First Amendment heroes as Larry Flynt - scumbags who provide objects lessons in how and why freedom of speech works. Alas, it was all an act on Howard's part. During his current anti-CBS media tour, Howard told (of all people) Sean Hannity that:

'I believe in censoring anyone who is my enemy. He also added, 'I believe in censorship when it benefits me.'

This in reference to a spat with another pair of NYC shock jocks whom he perceived as a threat and had the station (they and Howard were on the same station) place a gag order on them prohibiting them from talking about Howard or his show. Seems that Howard didn't learn the most important lesson about free speech - it's only really free if other people have the right, too.

Album of the Day

Red Queen to Gryphon Three, by Gryphon (1974): How can you not like a band that has a member solely dedicated to playing bassoon and krumhorn? Gryphon's four-track instrumental concept album (think chess) is a great medieval-tinged symphonic prog work. Jaunty bassoon runs abound. Maybe krumhorn runs do, too, but, honestly, I don't know what one sounds like!

Constitutional Nose Thumbing

Last month I chastised a state lawmaker for voting in favor of a law of questionable constitutionality under the theory of "let the courts settle it." I still think that voting in such a way is an abandonment of the legislator's oath to uphold the Constitution. So what of South Dakota's recent anti-abortion law, that runs headlong into Roe v. Wade? Are the mouthbreathers in the Black Hills on any better footing? Michael Dorf over at FindLaw says yes. He makes a fairly convincing case that the only way for anyone to legitimately challenge Roe (or any other constitutional status quo) is to act in a way that forces the courts to deal with the issue. I'm not completely convinced, but it's an interesting theory.

Talk About a Sore Loser

Long ago I decided to not care all that much about subjective awards that are given out in my world. Such awards exist, both professionally and in other areas, in my world, and while I'd be happy to take one home and stick it on my mantle (if I had a mantle), I don't get upset if someone else wins. The nature of the beast with such things is that there is no "right" answer and there are no real winners and losers, only favorites and things you don't like.

So I'm a little surprised that someone who writes for a living gets so worked up about that kind of stuff. The writer in question is Annie Proulx, whose short story was the basis for the film Brokeback Mountain. Proulx attended the Academy Awards with the rest of the Brokeback gang and, naturally, was surprised when it didn't win best picture. In fact, she seems rather pissed about it, rechristening the best-picture winner Crash as "Trash"* in a post-Oscar piece for UK's The Guardian. First, she notes the presence of anti-gay activists outside the theater and implies that they are in some way indicative of the Oscar voters on the inside. Second, she chastises Los Angelinos for being "out of touch . . . with the shifting larger culture and the yeasty ferment that is America these days," before making staggeringly un-hip statements about the best-song winner "It's Hard Out Here for a Pimp."** Finally, she ridicules Crash again for being "a safe pick of 'controversial film' for the heffalumps."

Look, she's got every right to feel pissed because her film got passed over (although flipping through the IMDB entry for Brokeback it doesn't appear she had anything to do with the actual film). And she's got every right to say the Academy got it wrong with Crash (I certainly would agree), but the way she goes about it makes her seem like a spoiled brat whose tee-ball team lost the big game. Grow up and get over it.

*From my own perspective, I was a bit surprised by the Crash victory. I'd only seen one other best picture nominee at the time (Munich), but felt Crash was a distant second on my ballot. It's an overhyped mishmash of Short Cuts and Do the Right Thing, IMHO (the 1996 Cronenberg flick of the same name is much more interesting, if also a lot creepier). In fact, I liked The Constant Gardener, which I finally saw last weekend, much better than either Crash or Munich, so what do I know?

** Again, I've not seen Hustle & Flow, but from what I've read the pimp song is the only one of the three nominees that actually played a role in the film from which it came. Sounds like it won by default. Like rap or hate it, it's about time the Academy recognized it's existence, don't you think?

Album of Yesterday

Lex Rex, by Glass Hammer (2002): Glass Hammer is sort of a prog Steely Dan - basically two guys in the "band" who do all the writing and most of the playing/vocals, with help from a semi-regular cast of guests. I decided to check the band out after hearing raves following their performance at NEARFest a couple of years ago. Lex Rex was the current album at the time and, from what I've read, pretty indicative of their stuff. And for what it is, it is very good. That is, this is absolutely traditional break no new ground symphonic prog. In fact, they remind me a little of an American version of The Flower Kings with slightly better lyrics. Speaking of lyrics, as the Ground and Sky reviewers mention, there is a very discernible Christian theme to the lyrics on this disc, but I wasn't put off by that. I'm a little bit more weirded out that the keyboard player is a dead ring for Comic Book Guy from The Simpsons, but that's just me.

Album of the Day

Live at the Troubadour, by Kevin Gilbert & Thud (1999): Kevin Gilbert's all-too-brief life has produced several excellent posthumous releases. I've raved about The Shaming of the True before, but this live disc has it's charms, too. The material is largely drawn from Gilbert's solo album Thud (hence the name of the band), but also includes a few killer extra tracks, including a cool cover of Zeppelin's "Kashmir" (complete with tabla, no less), a more muscular version of Toy Matinee's "The Ballad of Jenny Ledge," and the ultimate middle finger to Sheryl Crow in "Miss Broadway."

Album of the Day

Gentle Giant, by Gentle Giant (1970): The debut album from this English prog band showed just a little bit of the complexity they'd explore on later releases. What was evident from this album is how comfortable the band was shifting between styles. They manage to put together a collection of tunes that don't really sound all that similar (or are, at the least, unique).

It's Where They'd Least Expect It

There are a few really dumb places to commit crimes. A police station would be a good start, as would a convent (then the prosecution witnesses would be the proverbial busload of nuns). A courthouse isn't much better. But that's what one woman did in the northern part of the state. After paying a fine for a speeding charge in the Upshur County Courthouse, she very casually picked up an eight-foot carpet on her way out. She would have gotten away with it, if it wasn't for those meddling surveillance cameras:

Deputies immediately scanned video surveillance of the hallway in the
communication center. They produced a picture of a woman with her hair pulled
back and showed it to all of the employees in the building.

'To do it in a public building, especially now with today's technology,' [Deputy] Miller said. 'About everybody has a security camera in their courthouse.'

When they described the woman's appearance to Beth Miller, a magistrate court deputy clerk, she immediately remembered processing her citation.

The would-be carpet thief was tracked down and charged with petit larcency.

Ward, Better Have a Talk With the Beav

I have seen some weird political commercials in my time, but this one (via Crooks & Liars) really takes the cake. It's by a GOP Congressional candidate from North Carolina who claims that all the various bogeymen of the left (liberals, gays, activist judges - you know the drill) are responsible for sucking the country into "The Twilight Zone." Complete with the theme song from the TV show! And it ends with a video clip depicting the "good ol' days" - from Leave It to Beaver.

How do these people run the country? Oh right, I forgot - we're idiots.

Album of Yesterday

Archive, 1967-1975, by Genesis (1998): The first of the two multi-disc archive box sets from Genesis is by far the more impressive. At four discs, it contains a tantalizing amount of archival material. Two discs are given over to a full live (mostly) version of The Lamb Lies Down on Broadway, complete with Gabriel's narration. A third disc contains more live stuff, from the Selling England by the Pound tour, including "Supper's Ready," again with Gabriel's narrative intro. The fourth disc is mostly demos of early songs, some of which appeared on From Genesis to Revelation, but without the tarted-up Jonathan King arrangements.

Album of the Day

... and Then There Were Three..., by Genesis (1978): Golden Era Genesis (Trespass through Wind and Wuthering, generally) is usually considered the deepest source/influence on neo-prog, particularly the early 80s version of it cooked up by Marillion, IQ, and their ilk. But listening to this album today, I came to the conclusion that this is actually the first neo-prog album. The songs are generally shorter than in the Gabriel/Hackett days and stick closer to the traditional verse-chorus format, but there are still plenty of instrumental diversions (from Banks, in particular) and it does a pretty good job of melding the "prog" and "pop" sides of Genesis's career. Is that a good thing? Dunno. I like the album, tho', quite a bit.

Dumb All Over

Just when you thought the defeat of the "Intelligent Design" movement heralded a return to the importance of science in public life, this country proves you wrong. A new Gallup poll finds that 57% of Americans believe that "God created human beings in present form." Another 31% go for the "God guided man's evolution" theory, while only 12% believed that God had nothing to do with it (or, indeed, doesn't exist at all). Gallup has been asking this same (or similar) question since 1982, when only 42% of the population bought the Genesis (not the band, either) story - although there were no questions about which of the two stories win out.

To quote Brother Zappa:

An' the book says:He made us all to be just like him.
So...If we're dumb...
Then God is dumb...
(an' maybe even a little ugly on the side).*

Cue guitar solo.

* "Dumb All Over," from You Are What You Is

First a Goat, Now a Dolphin

A couple of weeks ago I talked about a story from Sudan in which a man was forced to "marry" (pay a dowry, actually) a neighbor's goat with which he was caught having sex. That was a sort of shotgun wedding betwixt species, but apparently force isn't involved every time.

Consider this story from the Bangkok Post about a British woman who is now officially wed to a dolphin - and not a pro football player from Miami, either. Seems that Sharon Tendler (she's keeping her maiden name, obviously) vacationed at an Israeli resort for 15 years, during which she developed a strong attraction for a dolphin at the resort. The 41-year old woman married the 35-year old porpoise in front of a throng of curiosity seekers/well wishers:

Last week Tendler finally plucked up the courage to ask the dolphin's trainer
for the mammal's fin in marriage.

The wedding took place Wednesday, with the bride, wearing a white dress and watched by amazed spectators, walking down the dock to where the groom was waiting in the water.

She kissed him, to the cheers of the spectators and then, after the ceremony was sealed with some mackerels, was tossed into the water so she could swim away with her new husband.

I didn't realize bride tossing had survived into the 21st century. Lest any of you think untoward thoughts about this new couple:

'I'm the happiest girl on earth,' the bride was quoted as saying. 'I made a
dream come true. And I am not a pervert.'

Whatever you say, Mrs. Flipper. So, how long before the wingnut fundies, fresh off their anti-choice victory in South Dakota, propose a revised Defense of Marriage Amendment to cover human/dolphin unions?

Albums of a Couple of Days

My hectic schedule (as well as a sick day yesterday) is conspiring to stifle my blogging. So here's a quick bit of Album of the Day info from today and last Friday.

Peter Gabriel (aka Melt), by Peter Gabriel (1980): For a long time I'd relegated Gabriel's studio albums to secondary status to the live stuff, as I felt they were overly produced and sterile. I still think that about Security, but this third eponymously named album actually works as an overly produced and somewhat sterile album. Maybe it's just because there are two tracks ("Games Without Frontiers" and "Lead a Normal Life") that I don't have in any live version that I really love. Or maybe it's something else - who knows?

Foxtrot, by Genesis (1972): Generally when I think of this period of Genesis, I'm partial to Selling England by the Pound (which I also listened to today), but Foxtrot really kicked my ass this afternoon. All of a sudden, the tunes that seemed liked dead spots to me ("Time Table" and parts of "Supper's Ready" - I prefer the live version) came alive. Combined with the dynamic opening of "Watcher of the Skies" and my personal favorite underrated Genesis tune, "Can-Utility and the Coastliners," and it's a really great 45+ minutes.

Album of the Day

Flower Power, by The Flower Kings (1999): Perhaps the worst (tho' somewhat aptly) named band in my collection. It's hard to sound macho when you sign off web forum posts with "NP: The Flower Kings." Band leader Roine Stolt comes from the Jon Anderson school of hippy-dippy love fests, so the lyrics are, at times, painful. The music, however, is fairly solid modern symphonic prog. There is, however, too much of it on this album. Two discs, each with well more than an hour of material. Some judicious editing would have really tightened things up and, hopefully, left things like "Magic Pie" on the cutting room floor.

Ah, Nancy, You Fibber, You

Last week I ripped on CNN/CourtTV legal harpy Nancy Grace for (indirectly) calling me a Nazi. So, I think it's only fair that this article in the New York Observer pretty much calls her a liar. It seems that the story Grace tells about the murder of her fiance and the ensuing trial (what the article nicely refers to as her "origin story") contains a fair amount of puffery. Oh yes, she gets the big picture right, but whiffs on these details:

• Griffin was shot not by a random robber, but by a former co-worker.

• The killer, Tommy McCoy, was 19, not 24, and had no prior convictions.

• Mr. McCoy confessed to the crime the evening he was arrested.

• The jury convicted in a matter of hours, not days.

• Prosecutors asked for the death penalty, but didn’t get it, because Mr. McCoy was mildly retarded.

• Mr. McCoy never had an appeal; he filed a habeas application five years ago, and after a hearing it was rejected.

Why are the details important? Because, they "form the basis of Ms. Grace’s crusade against an impotent, criminal-coddling legal system." In other words, the facts that underlie her contempt for the criminal justice system are false. Her contempt, therefore, is misguided. Given her penchant for overstatement when discussing the cases of the day, I'm hardly surprised that she's not up to snuff on the details of a 25-year old crime.

Album of the Day

Live Art, by Bela Fleck and the Flecktones (1996): I'm fairly sure that I rave about this album every year, so I won't go on at length this time. Suffice to say that across these two discs is enough brilliant musicianship that if you've never even heard of Bela and his pals, you should go right out and buy this right now!

Sentencing Is Hard Work

About this time last year, a Federal district court judge, in imposing a sentence under the new post-Booker advisory sentencing scheme, proclaimed what you might have thought would be obvious: post-Booker sentencing is going to require a lot more work from all involved - prosecutors, defense attorneys, probation officers, and judges. A year later, it seems to me that the Government has largely slipped out of shouldering its share of the load.

In the pre-Booker days, sentencing was very mechanical and legalistic in an overwhelming majority of cases. A probation officer would prepare a Presentence Investigation Report ("PSR") that set forth the defendant's offense(s) and related illegal conduct. Base offense levels would be calculated, enhancements and reductions recommended, and Criminal History Categories set. After the PSR was disclosed to the parties, each would submit objections. Some of the objections got resolved before sentencing, while others required judicial intervention. But once that issues were settled, the sentencing process largely went on autopilot. A Guideline sentencing range was announced and the district court imposed sentence. There was rarely any argument over which specific sentence within the range was appropriate and, once imposed, the length of the sentence itself was not subject to appeal. The work load at sentencing skewed to the defense, but was largely shared by all concerned.

Now, in a post-Booker world, things follow largely the same script, until you wind up with the sentencing range. Since those ranges are now only advisory (presumptions be damned), the parties now have to convince the district court about what particular sentence is appropriate. The district court then must impose a sentence that is "sufficient, but not greater than" necessary to achieve the Congressional purposes of sentencing and the appellate courts review the results. In short, where the process once went on autopilot, it now requires significant input from the parties.

Defense attorneys have, by and large, stepped up to the plate. Lengthy sentencing memos are filed, character witnesses are called, and sentencing hearings become more detailed affairs. You'd think the Government would become equally engaged and try to come up with similar methods to assist the district court.

Alas, such is not the case. In my experience, the Government makes exactly one argument at sentencing: "the advisory Guideline range in this case adequately reflects the nature of the offense and the defendant and a sentence within that range will fulfill the purposes of sentencing." In other words, ignore Booker, don't think about a specific sentence, and just deal with the Guidelines. What startles me is that the Government's argument doesn't change, even with the advisory sentencing range does.

I just filed a brief in a case in which the defendant pleaded guilty to being a felon in possession of a firearm. The PSR calculated a sentencing range of 24 to 30 months, largely based on an offense level increase because the defendant possessed the firearm in connection with another felony offense. The defendant objected to that adjustment, which would mean a lower sentencing range. The Government, in a bare-bones sentencing memo, just repeatedly asserted that a Guideline sentence would be appropriate. At sentencing, the district court upheld the defendant's objection, lowering the sentencing range to 15 to 21 months. When it came time to argue for a specific sentence, what was the Government's line? "Impose a Guideline sentence." No difference, in spite of the change in the range.

The Government is slavishly devoted to the Guidelines. The appellate courts, including the Fourth Circuit, are unfortunately enabling that devotion by declaring that Guideline sentences are presumptively "reasonable" and therefore OK. Maybe the defense bar should stage an intervention of some kind with the Government? At least then they'd shoulder some of the load we're carrying in the brave new post-Booker world.

The Constitution Is Not a Technicality

Yesterday's Baltimore Sun had an article entitled "Technical move cuts U.S. prison sentences," with a subtitle of "Defendants get Md. convictions dropped to trim federal time." (Thanks to Doug Berman for the pointer). Given those grave words, you'd think that violent Maryland convicts were walking out of prison, going straight to court, and using some arcane loophole in the law to have their conviction wiped off the books. Unfortunately, many people will get that impression, read no further, and be outraged. A little further reading shows that the folks being talked about are indeed having convictions erased, because their Constitutional rights have been violated.

The procedure, called a writ of coram nobis, is a last ditch post-conviction effort to seek a remedy for illegal convictions. Things like:

But Pettiford already convinced Baltimore Circuit Judge Evelyn O. Cannon to throw out his guilty pleas for cocaine distribution. She ruled that Pettiford - once viewed as a notorious symbol of the city's crippled courts - was wrongly penalized when he was ordered to serve a year behind bars as a condition of his probation.

Or:

Lawlor's client, Ernest Ellis, successfully argued before a Prince George's County judge that his cocaine possession conviction in 1997 should be thrown out because he was not told about his right to a jury trial and his maximum possible sentence.

Or:

Last year, Judge Kaye A. Allison ruled that Henderson knowingly pleaded guilty in 2001, but that his rights had been violated because there was no evidence on the record that his lawyer told him that he was presumed innocent.

The real outrage here is that these people served time in prison that they should not have, but it took too long to have their convictions overturned. But, of course, nobody cares much about that. The outrage generator in this situation appears to by the US Attorney for the District of Maryland, how rightfully points out that fewer prior convictions mean lower sentences for future Federal prosecutions.

Why is that a problem? It isn't, unless your job satisfaction is measured by how long you can send somebody away, regardless of the justice of their personal history. The Constitution, and the rights that it ensures, are not technicalities, even in Dubya's America.

Know Your World Cup Teams

As the World Cup Finals in Germany draw ever nearer, it's never too early to start becoming familiar with the 32 teams involved. CNNSi's Grant Wahl is previewing two teams per week leading up to the tournament. You can find his archive here.

Album of Yesterday

Tales from the Big Bus, by Fish (1997): I have a tendency to dig relentlessly through the cutout bins at CD stores in hopes of finding some obscure treasure (as my girlfriend discovered this weekend!). It's because of things like this. This 2-CD official bootleg (basically) from Fish's Sunsets on Empire tour was sourced from a small chain CD shop in a local mall. To my knowledge, it was never actually release in the United States, so I have no idea how it got here. It's the full show from Koln, Germany from that tour, so it therefore includes lots of piscine babblings, some of which are in German! Still, it's a fun listen and gives you an idea of how Fish, when he's on his game, can get a crowd right in the palm of his hand.