Album of the Day

Ghost Reveries, by Opeth (2005): Opeth is a Swedish heavy metal band that found its way into my collection because of its connection to Steven Wilson of Porcupine Tree fame. He produced a couple of their albums (not this one) that were very well received in the prog world and, thus, put them on my radar. I found this album on a Half Price Books expedition with the girlfriend and decided it was worth a few bucks. Musically, it's some very deft, well worked heavy metal. There's some nice dynamic contrasts and some excellent playing. There's a nice use of keys (Mellotron, in particular) to set off the heavy guitar riffs.

Unfortunately, there are the vocals, with a large helping of the death metal growl (i.e. "Cookie Monster" vocals). I know it's supposed to be intense, heavy, and dark, but that techniques just makes me giggle. It sounds too forced and makes actually understanding the lyrics damn near impossible. They don't ruin the album for me, but they do keep me from really enjoying it. If these guys ever do an all instrumental album, I'm all over it.

The Folly of Prayer

I ran across a couple of stories today that deal with the folly and the uselessness of prayer. One is fairly silly and at least won't get anybody hurt. The other is deadly serious and shows the damage that can be done when people get too wrapped up in the idea that some unforeseen sky king is taking their personal calls.

The silly one comes from - where else? - San Francisco, where a minister has organized a prayer service for cheaper gas (via DftCW):

Rocky Twyman has a radical solution for surging gasoline prices: prayer.

Twyman - a community organizer, church choir director and public relations consultant from the Washington, D.C., suburbs - staged a pray-in at a San Francisco Chevron station on Friday, asking God for cheaper gas. He did the same thing in the nation's Capitol on Wednesday, with volunteers from a soup kitchen joining in. Today he will lead members of an Oakland church in prayer.

And why has it come to this?

'God is the only one we can turn to at this point,' said Twyman, 59. 'Our leaders don't seem to be able to do anything about it. The prices keep soaring and soaring.'

Gee, if I didn't know better, I'd say Twyman sounds a little "bitter" and that he's "clinging" to his religion as a result. But I don't want to sound elitist, or anything!

Twyman's stunt will probably be about as effective as the Atlanta prayer circle for rain last year (i.e., not at all), but at least it isn't likely to get anyone hurt, unless is distracts a passing driver.

On the other hand, what Dale and Leilani Neuman did with their prayer strategy was to get a young girl killed (via Pharyngula):

Even as her 11-year-old daughter lay dying on a mattress on the floor of the family dining room on Easter Sunday, Leilani Neumann never wavered in her belief in the power of prayer.

'We just thought it was a spiritual attack and we prayed for her,' Neumann said, according to a police report. 'My husband, Dale, was crying and mentioned taking Kara to the doctor, and I said the Lord's going to heal her and we continued to pray.'

Prayer didn't save Madeline Kara Neumann, who died of untreated diabetes March 23.

The Neumans have been charged with 2nd degree reckless homicide, which carries a maximum sentence of 25 years in Wisconsin. It certainly sounds like they deserve it:

Prosecutors said they looked at the 'progression of the illness' as they weighed charges in the case.

'By that Saturday (the day before the girl's death) you had an 11-year-old child who wasn't eating, so she wasn't getting any nourishment, she wasn't taking in any fluids, she wasn't walking, she was struggling to get to the bathroom,' Falstad said. 'She really was very vulnerable and helpless. And it seemed apparent that everybody knew that. As her illness progressed to the next morning being comatose . . . it just is very, very surprising, shocking that she wasn't allowed medical prevention (attention).

'She had a disease that was treatable and her death could have been prevented,' Falstad said.

Even the parents' description of events is incriminating:

Dale Neumann said on the Friday before his daughter died he noticed she was 'a little more tired,' but that she ate a McDonald's meal without any problems. By Saturday he noted the girl 'seemed to act like she had a fever' while her breathing seemed a little labored.

Meanwhile, Leilani Neumann told police that by Saturday, 'Kara was laying on the couch. Her legs looked skinny and blue. I didn't realize how skinny she was. We took her to my bed where I got her warm. I thought it was a spiritual attack. We stayed by her side nonstop and we prayed.

'I asked Kara if she loved Jesus and she shook her head yes.'

Later Saturday, 'Kara got up to go to the bathroom and fell off the toilet,' Leilani Neumann told police.

Dale Neumann told police he thought his daughter was getting better on Sunday but that at one point he tried to sit her up but she was unable to remain up.

The investigator said he used the term 'unconscious' to describe the girl's condition, according to the report, while Dale Neumann 'preferred to say that she was 'in sleep mode.' '

You know, if I couldn't get me laptop out of "sleep mode," I'd call the fucking Geek Squad, not sit around like Pooh and think really hard about it! What's even more chilling is that Dale doesn't appear to get it:

Dale Neumann told investigators that 'given the same set of circumstances with another child, he would not waiver in his faith and confidence in the healing power of prayer,' according to the interview statement.

Thankfully, the Neumans' other three children no longer live with them. The article raises the possibility that Wisconsin law might provide some sort of religious exemption to child abuse charges. I'd be willing to be that's not the case, at least if the Supreme Court has anything to say about it:

The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death [. . .] Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves.

In other words - you adults are welcome to your own deluded dogma, but don't mess up your kids in the process.

Last week, in a comment to this big religion post over at jedi jawa's place, Red said:

You can't honestly tell me that you believe that not eating meat on Friday is akin to forcing a girl to marry at age 12.

My response (basically) was that what's important in comparing the two isn't the end result, but why you get to that result (i.e., 'cause God said so). Similarly, it's tempting to look at these two examples of prayer gone wild and say they're not comparable. And, when it comes to result, they're not. But in intent, they're exactly the same. They both call upon a unseen nonexistent force to intervene in your life. There's no proof it works and demonstrative proof that it doesn't work (i.e., your daughter dies a slow horrible death), yet it doesn't change your opinion of its efficacy.

If I had an imaginary friend that I asked to do things for me over and over again without any return, I'd be committed. But if I call him "God," it's all OK. Well, it's not OK, especially when people get hurt as a result.

Enlightenment from the Rubble

One of the many atrocities committed by the Taliban during their reign in Afghanistan was the destruction of the ancient massive Buddhas carved into the face of a cliff wall in the Bamyan Valley. Ironically, in their religious fervor to stamp out non-Islamic influences, the Taliban apparently uncovered something of equal significance.

Ever since the Taliban fell, scholars have been studying ancient paintings on the cave wall that came to light after the Buddhas were destroyed. That study has upset one of the foundations of modern art history:

Although caves decorated with precious murals from 5th to 9th century A.D. also suffered from Taliban attacks on this World Heritage Site, they have since become the focus of a major discovery, revealing Buddhist oil paintings that predate those in Renaissance Europe by hundreds of years.

Scientists have proved, thanks to experiments performed at the European Synchrotron Radiation Facility in Grenoble, that the paints used were based of oil, hundreds of years before the technique was 'invented' in Europe, when artists found they could use pigments bound with a medium of drying oil, such as linseed oil.

In many European history and art books, oil painting is said to have started in the 15th century in Europe. But the team that used the ESRF, an intense source of X rays, found the Bamiyan paintings date back to the mid-7th century AD.

I'm not generally a "turn lemons into lemonade" kind of guy, but I'm pleased to see that even the blind bigotry of the Taliban's campaign of destruction can't hide the fact of Bamyan's significance.

Album of the Day

Ars Longa Vita Brevis, by The Nice (1968): The Nice are one of the seminal proto-prog bands, bridging the gap between the psychedelia of the late 1960s and the full-on prog heyday of the early 70s. The driving engine of the band was Keith Emerson, who would, of course, go on to form the first prog supergroup - Emerson, Lake, & Palmer. As with ELP, The Nice was a bass-drums-keys (organ, mostly) trio, mixing up short vocal-led tracks with extended classically based instrumental workouts. As you might expect from the "proto" tag, it all sounds a bit half-baked, at this point. The shorter tunes on Side One are mostly forgettable, although I enjoy "Happy Freuds" quite a bit. Side Two contains the epic title track, which wanders a bit too much for my tastes. Overall, I'm glad I have this album for historical reasons, but I don't pull it out all that often.

Why We Do What We Do

Over at his place, Gideon takes apart a holier-than-thou prosecutor who has defense attorney "lie promoters" in his sight. In the process, Gideon lays out a pretty good explanation of why defense attorneys do what we do:

Defense attorneys are not partners in this pursuit of justice - we are defenders of the Constitution and of individual liberties. We are not charged with coming at the truth, but rather ensuring that the Government does not willy-nilly imprison individuals. There is a reason that the burden of proof rests with the State and defendants need not lift a finger at trial.

There's more, of course. It's a good read, if you're curious about how we can represent "those people."

Album of the Day

Of Queues and Cures, by National Health (1978): Holy cow, I've been doing this for five years and this has never been AotD? That's hard to believe, given that it's one of my favorite albums of all time. This is the sophomore effort from the Canterbury group, formed out of the ashes of a couple of different earlier groups. It's a late-era classic (along with the first UK album), the exception to the rule that prog was being killed off by the punk uprising. OK, so they band never had any appreciable commercial success, but they produced and LP for the ages. A classic.

An Army of One (True God)

Over the weekend, the New York Times had a disturbing article about religious discrimination in the military. The target? Atheists, of course:

When Specialist Jeremy Hall held a meeting last July for atheists and freethinkers at Camp Speicher in Iraq, he was excited, he said, to see an officer attending.

But minutes into the talk, the officer, Maj. Freddy J. Welborn, began to berate Specialist Hall and another soldier about atheism, Specialist Hall wrote in a sworn statement. 'People like you are not holding up the Constitution and are going against what the founding fathers, who were Christians, wanted for America!' Major Welborn said, according to the statement.

Major Welborn told the soldiers he might bar them from re-enlistment and bring charges against them, according to the statement.

Hall has sued, but his experience is apparently not isolated:

Mikey Weinstein, a retired Air Force judge advocate general and founder of the Military Religious Freedom Foundation, said the official statistics masked the great number of those who do not report violations for fear of retribution. Since the Air Force Academy scandal began in 2004, Mr. Weinstein said, he has been contacted by more than 5,500 service members and, occasionally, military families about incidents of religious discrimination. He said 96 percent of the complainants were Christians, and the majority of those were Protestants.

Complaints include prayers 'in Jesus’ name' at mandatory functions, which violates military regulations, and officers proselytizing subordinates to be 'born again.' After getting the complainants’ unit and command information, Mr. Weinstein said, he calls his contacts in the military to try to correct the situation.

'Religion is inextricably intertwined with their jobs,' Mr. Weinstein said. 'You’re promoted by who you pray with.'

Given our current entanglements in the Middle East, the idea that the military might be encouraging rash proselytization might bring more trouble than just a few lawsuits from slighted heretics.

State of Disaster

West Virginia's history is dotted with massive industrial disasters, from the Hawks Nest Tunnel to numerous mine explosions. So how is is that I never heard about Willow Island (h/t to Mountain Laurel @ Appalachian Greens)?

Willow Island is the site of a power plant in Pleasants County (on the Ohio River north of Parkersburg). Thirty years ago yesterday, it was the site of the worst construction disaster in American history:

At about 10 a.m. on April 27, 1978, workers began raising the day's second bucket of concrete up 166 feet to Lift 29. Each day, they poured another 5-foot lift to build the second of two 430-foot cooling towers for the new Pleasants Power Station at Willow Island.

But on that Thursday morning, 30 years ago today, something went terribly wrong.

The cable hoisting that bucket of concrete went slack. The crane that was pulling it up fell toward the inside of the tower. Scaffolding followed. The previous day's concrete, Lift 28, started to collapse.

Concrete began to unwrap off the top of the tower. First it peeled counter-clockwise, and then in both directions. A mess of concrete, wooden forms and metal scaffolding crumbled to the ground.

Fifty-one construction workers were on the scaffold at the time. They all plunged to their deaths.

The Charleston Gazette is doing a series about the disaster, its aftermath, and what's changed in intervening decades.

Industrial disasters are a fact of life. Thankfully, they're much rarer today than even thirty years ago. Why? Because of those evil big-government types that pushed through regulations improving workplace safety conditions.

Remember that next time some politician is ranting about big government and the socialistic evils of OSHA or some such. Remember that, back when we left such things to the the better angels of industrialists' natures, people died. By the dozens. People who just went to work to do a job and never came home again.

Those weren't the good ole' days and there is no need to return to them.

UPDATE: Situations like this always put me in mind of, perhaps, the last great Genesis tune:

And You Thought Hillary's Campaign Was Poorly Run

At least she's managed to not address a birthday celebration for Adolph Hitler put on by the "National Socialist Workers Party." That's what one GOP Congressional hopeful in Indiana did (via Dave @ Orcinus):

U.S. Congressional candidate Tony Zirkle is facing criticism from one of his primary opponents, and a host of people on the Internet, for speaking at an event over the weekend that celebrated Adolf Hitler's birthday.

Zirkle confirmed to The News-Dispatch on Monday he spoke Sunday in Chicago at a meeting of the Nationalist Socialist Workers Party, whose symbol is a swastika.

When asked if he was a Nazi or sympathized with Nazis or white supremacists, Zirkle replied he didn't know enough about the group to either favor it or oppose it.

I know politicians as a rule are wont to equivocate and avoid taking stands on tough issues, but c'mon?!? You can't come out against the Nazis!

Oh, but the epic level stupid continues:

"This is just a great opportunity for me to witness," he said, referring to his message and his Christian belief.

He also told WIMS radio in Michigan City that he didn't believe the event he attended included people necessarily of the Nazi mindset, pointing out the name isn't Nazi, but Nationalist Socialist Workers Party.

'cause, you know, "Nazi" isn't derived from "National Socialist German Workers Party," or anything.

Just in case you're inclined to give Zirkle the benefit of the doubt, consider this post by Orac at Respectful Insolence, wherein he discovers that Zirkle is crusading against the "porn dragon" (which, as somebody points out, would be a tremendous name for a band), which is apparently enslaving white women across the country. His sources? Such redeeming folks as David Duke, the Klan, and "Jew Watch." Priceless.

Album of Last Friday

The Clever Use of Shadows, by Nathan Mahl (1999): Every now and then, some band comes out of nowhere to really shine at one of the big US prog fests (NEARFest and ProgDay). For the 1999 version of NEARFest, Nathan Mahl did just that. Although the band had been around for a while (this YouTube clip dates from 1982), it took 15 years to release this, its second album. It was worth the wait, a tour-de-force mostly instrumental slice of fusion-influenced classic prog. I even like the two vocal tracks, but that's a minority opinion. A fun listen.

Album of the Day

Guilty Until Proven Rich, by Mind Gallery (1995): With a title like that, how can I not like this disc? Well, I do, but it's a little hard to love. Mind Gallery is a Canadian quartet that's setup in standard prog fashion, sans vocalist. A lot of their music would fit neatly in the neo-prog ghetto, but the lack of vocals don't really allow it (instrumental neo is sort of pointless). In fact, they remind me a bit of a lot of Steve Hackett's instrumental work, which isn't a bad comparison. Unfortunately, the production is a bit dated, particularly the synth patches, as they sound very digital and very late 80s. I'd like to hear some tunes reworked with some nice warm analog (or VA) synths.

The Comedian Gets It Right

I'm honestly still on the fence on the Presidential election at this point. Neither Clinton nor Obama have "closed the deal" with me. Which is appropriate, I guess, because neither one of them can really win this thing outright, anyway. The only way to win outright is to capture a predetermined number of delegates which neither one is likely to do before the Superdelegates weigh in. It's a race to a certain point, not just a matter of who ends the process with the most delegates.

That being the case, the Clinton folks need to stop moving the goalposts. The criteria for what matters and what's important has shifted underfoot for months. But don't take my word for it:



Yeah, OK, he's a comedian making a joke. But he's right.

Ah, I Hit The Trifecta

I know that Schadenfreude is unbecoming, but I'm already going to hell, anyway, so what the fuck.

You've no doubt heard of Expelled, Ben Stein's new polemic about the evils of evolution. Supposedly an expose about a plot by the scientific-industrial complex ("Big Science," in the film's parlance) to silence the voices of brave scientists who buck the theory of evolution, it apparently goes off the rails and draws a line from Darwin to the Holocaust. Which I suppose was necessary, as said plot doesn't actual exist so you couldn't make much of a movie about it, but that's not really the point.

The point is that at every turn, the makers of Expelled have fallen flat on their creationist faces and I'm enjoying it mightily.

For one thing, the film's reviews have been completely atrocious. At Rotten Tomatoes, it's gotten an average of 10% (out of 100, of course), which you'd think a test pattern could beat. But don't take my word for it. How about USA Today, which gave it half a star (out of four) and said:

There's plenty of rhetoric and posturing, but not much truly intelligent debate, in this controversial documentary about evolution. Co-writer and host Ben Stein is startlingly one-sided in his unnatural selection of experts.

Or The Onion's AV Club, which handed out a rare "F" grade, and said:

Expelled is a classic bait-and-switch, presenting itself as a plea for freedom in the scientific marketplace of ideas, while actually delivering a grossly unfair, contradictory, and ultimately repugnant attack on Darwinists, whose theory of life is first described, in frustratingly vague terms, as 'unintelligible' and 'a room full of smoke,' then as a pathway to atheism, and finally as a Nazi justification for the Holocaust.

Or Entertainment Weekly, which hands out a "D" grade, and says:

Regardless of your personal views, Expelled's heavy-handed bias (a visit to Darwin's home gets the same eerie music as a tour of Dachau) is exasperating. By the time the camera zooms in on the word 'Creator' in the Declaration of Independence, the whole debate seems less urgent than getting out of the theater.

And, finally, the New York Times:

One of the sleaziest documentaries to arrive in a very long time, 'Expelled: No Intelligence Allowed' is a conspiracy-theory rant masquerading as investigative inquiry.

* * *

Mixing physical apples and metaphysical oranges at every turn 'Expelled' is an unprincipled propaganda piece that insults believers and nonbelievers alike. In its fudging, eliding and refusal to define terms, the movie proves that the only expulsion here is of reason itself.

Ouch! And that's just the actual film critics! Folks who have no vested interest in anything other than seeing better movies. The scientific critiques are even more withering, if that's possible.

But that's just one way in which the film has flopped. It's also committing the ultimate Hollywood sin - it's not making money.

It launched on 1000 screens (the widest documentary release ever) and had a heavy PR program. In a prerelease article in the LA Times, the executive producer suggested that it might beat the record documentary opening weekend of $23.9 million for Fahrenheit 9/11. Not quite - it brought in just under $3 million - one seventh of it's hoped for haul. Not something likely to shift a debate that most people realize isn't really necessary in the first place.

And that would be enough, but the cherry on top is that the filmmakers have pissed of Yoko Ono. And she's coming after them:

John Lennon's sons and widow, Yoko Ono, are suing the filmmakers of 'Expelled: No Intelligence Allowed' for using the song 'Imagine' in the documentary without permission.

* * *

Ono, her son Sean Ono Lennon, and Julian Lennon, John Lennon's son from his first marriage, along with privately held publisher EMI Blackwood Music Inc filed suit in U.S. District Court in Manhattan seeking to bar the filmmakers and their distributors from continuing to use 'Imagine' in the movie.

They are also seeking unspecified damages.

The Expelled guys are claiming fair use, but that sounds like a post hoc rationalization rather than a winning legal strategy. We'll see. Of course, given how poorly the film's performed, there won't be any profits from which Yoko and crew can get any damages!

* Tee Hee! *

Maia Sez: Yup, it's unbecoming. But these schmucks deserve it!

Well, Golly, That Sure Sounds Like Justice

From CNN.com comes some detail about the attorney who will represent one of the highest of high profile defendants - Khalid Sheikh Mohammed, alleged mastermind of the 9/11 attacks. Is he a seasoned capital litigator? Nope:

Prescott Prince is a small-town lawyer who has never taken a death penalty case to trial.

Well, that's great. I can't imagine there are lots of capital trials in practices focusing on admiralty and maritime law. He'll have the assistance of some more experienced counsel, but still, it underwhelms.

But that's OK. The trial in front of a military tribunal will be a fair and just process right? Well . . .

No civilian court, he says, would accept confessions obtained after a defendant was mistreated. But the CIA admits Mohammed was waterboarded, a controversial interrogation technique that involves simulated drowning.

'I take the position that this is mock execution. ... Colloquially speaking, at least it's torture,' Prince said.

The fact that whatever Mohammed said during such duress could be used at trial is alarming to Prince.

'That's not the rule of law. That's just insanity.'

So, let's see - we've got inexperienced (though well-meaning, from all accounts) counsel, evidence extracted by torture, all in a case taking place basically in secret. That's truth, justice, and the American way, kids - 21st century style!

What Religious Discrimination Really Looks Like

It's not uncommon in the US for both sides of the culture wars to cry oppression. Christians, in spite of being an overwhelming majority in this country, can find oppression and discrimination around every corner, even though they're the ones policing the street. Atheists, other non believers, and other minority religious folks often take great umbrage at the presence of Christian symbols or speech in the public square, even if it's only a reflection of the great majority of the populace. Are there acts of discrimination on both sides? Yes, but it's mostly nibbling around the edges.

For a look at what real religious discrimination looks like, take a look at what's going on in Russia. As this New York Times article discusses, the Eastern Orthodox church is exercising growing exclusive power due to its increased ties to the Putin regime:

It was not long after a Methodist church put down roots here that the troubles began.

First came visits from agents of the F.S.B., a successor to the K.G.B., who evidently saw a threat in a few dozen searching souls who liked to huddle in cramped apartments to read the Bible and, perhaps, drink a little tea. Local officials then labeled the church a 'sect.' Finally, last month, they shut it down.

The term "sect" is quickly becoming code for a dangerous organization that is not tied to the state. It's a mutually beneficial partnership between church and state, allowing each to gather power:

Mr. Putin makes frequent appearances with the church’s leader, Patriarch Aleksei II, on the Kremlin-controlled national television networks. Last week, Mr. Putin was shown prominently accepting an invitation from Aleksei II to attend services for Russian Orthodox Easter, which is this Sunday.

The relationship is grounded in part in a common nationalistic ideology dedicated to restoring Russia’s might after the disarray that followed the end of the Soviet Union. The church’s hostility toward Protestant groups, many of which are based in the United States or have large followings there, is tinged with the same anti-Western sentiment often voiced by Mr. Putin and other senior officials.

The government’s antipathy also seems to stem in part from the Kremlin’s wariness toward independent organizations that are not allied with the government.

Orthodox preachers take to the state-controlled airwaves to denounce Protestant heretics. Meanwhile, government officials hassle non-Orthodox churches with regards to the required paperwork to operate. And the message is sinking in:

'As a Russian Orthodox believer, I am against the sects,' said Valeriya Gubareva, a retired teacher, who was asked about Protestants as she was leaving a Russian Orthodox church here. 'Our Russian Orthodox religion is inviolable, and it should not be shaken.'

Like other parishioners interviewed, Ms. Gubareva said she supported freedom of religion.

Of course she does! The members of the favored group rarely openly oppose free speech or free worship. The key is to make those folks - and everyone - realize that the only way be be assured of that freedom is to extend it to everyone, even those whose beliefs you find odd, wrong, or dangerous.

Album of the Day

Shack-man, by Medeski Martin and Wood (1996): I picked this disc up on a whim a while back, on someone's theory that MMW is one of those non-prog groups that prog fans would dig. I've never been overly thrilled with it, but it is enjoyable on its own terms. And MMW's terms include a deep and abiding groove, with a tight rhythm section providing the foundation for a lot of chunky Hammond work. It's all good, but it's certainly not great. Oddly, the tune the sticks most in my head is the arrangement of a gospel tune, "Is There Anybody Here That Love My Jesus."

Safe in Hell

Yeah, well, I sort of figured:

The Dante's Inferno Test has banished you to the Sixth Level of Hell - The City of Dis!

Which is what, exactly?

Sixth Level of Hell - The City of Dis

You approach Satan's wretched city where you behold a wide plain surrounded by iron walls. Before you are fields full of distress and torment terrible. Burning tombs are littered about the landscape. Inside these flaming sepulchers suffer the heretics, failing to believe in God and the afterlife, who make themselves audible by doleful sighs. You will join the wicked that lie here, and will be offered no respite. The three infernal Furies stained with blood, with limbs of women and hair of serpents, dwell in this circle of Hell.

At least the music will be good*:

Where will you end up in Dante's Inferno ?

Not that I believe in such a place, of course.

* I'd prefer an online version of the The Bears's "Safe in Hell," but this will do

What Should a Voter Know? (Redux)

Earlier this month I blogged about a Virginia group seeking an injunction in federal court to prevent the enforcement of some of West Virginia's campaign finance laws. As I predicted, they were successful, at least in part:

U.S. District Judge David A. Faber prohibited state officials from enforcing election laws that would have required the Center for Individual Freedom, a Virginia-based organization, to disclose its funding sources on certain kinds of political ads.

'The court has reviewed those provisions of West Virginia law and determined that they appear to be vague,' Faber wrote. 'Because of this vagueness, it is fair to say that the Center has been discouraged from engaging in speech safeguarded by the First Amendment.'

His decision left intact rules that prohibit anonymous 'express advocacy' advertising on television and radio - that is, ads that directly encourage voters to support or oppose a particular candidate. However, the injunction allows the center to run issue-driven ads without disclosing its funding.

It will be interesting to see what kind of ads result, given that "issue" ads don't seem to have as much application in judicial elections (the state Supreme Court election is the group's target) as they do in expressly political elections. After all, judicial candidates can't promise to rule a certain way on a certain issue, so how do you tie a supposedly generic issue ad to a specific candidate?

There's No Pleasing Some People

Usually, when people - drunk people, in particular - interact with police, they'll do whatever it takes to keep from going to jail. But, there are always outliers:

Officers found a man there requesting to be taken to the "drunk tank," the complaint said.

Police identified him as John William Cornwell, 47, of Jackson Street.

Cornwell was handcuffed and taken to CARES - the detoxification facility - to sober up, the complaint said.

After arriving there, Cornwell began flirting with the intake officer and refused to blow into a portable Breathalyzer to determine his level of intoxication, the complaint said.

The officer told Cornwell he needed to undergo a breath test to remain at CARES, or he would be charged with obstruction, the complaint said.

Cornwell then told the officer to take him to jail, the complaint said.

He finally took the breath test (and blew a .288!) and continued to demand to be taken in, but the cop wouldn't do it. But don't worry:

He then became upset and began cursing, refusing to allow the office to remove the handcuffs, the complaint said.

The officer left the cuffs on and charged Cornwell with obstruction, the complaint said.

Ahh - everybody loves a happy ending.

Maia Sez: Never argue with cops - even if you're right, you never win.

The Ultimate (Petty?) Larceny

You just don't get headlines like this in the states:

Penis theft panic hits city..

No kidding:

Police in Congo have arrested 13 suspected sorcerers accused of using black magic to steal or shrink men's penises after a wave of panic and attempted lynchings triggered by the alleged witchcraft.

* * *

Rumors of penis theft began circulating last week in Kinshasa, Democratic Republic of Congo's sprawling capital of some 8 million inhabitants. They quickly dominated radio call-in shows, with listeners advised to beware of fellow passengers in communal taxis wearing gold rings.

Purported victims, 14 of whom were also detained by police, claimed that sorcerers simply touched them to make their genitals shrink or disappear, in what some residents said was an attempt to extort cash with the promise of a cure.

Sounds like a great cover story for some insecure types, right? Who knows:

'It's real. Just yesterday here, there was a man who was a victim. We saw. What was left was tiny,' said 29-year-old Alain Kalala, who sells phone credits near a Kinshasa police station.

At least they didn't turn him into a newt.

Album of the Day

Volume One, by Mastermind (1990/1996): It's rare to find prog reviews in anything resembling the mainstream press. Sure, the 70s staples (and Marillion, occasionally) show up, but not much else. So I remember quite vividly sitting in a movie theater lobby in Charleston while home from college, flipping through the local weekly, and finding a review of the 1996 rerelease of this album (I have the 1990 version). It was a pretty fair assessment of an album that sounds a bit like what ELP would sound like if Keith Emerson left and John Petrucci joined up and wired his guitar into Emerson's left behind synths. What I specifically recall is the incredibly apt description of "Long Distance Love Affair" - that "it has to be heard to be believed." And it wasn't a complement!

Know Your Judicial Candidates

As this blurb from today's Gazette points out, the traditional poll of WV State Bar members about the various judicial candidates across the state is out. You can see the whole report here.

The big news is that, of the four candidates for Supreme Court, current Chief Justice Spike Maynard came got the lowest score for "overall qualification for office," a 2.4 (out of 5). To be fair, though, the spread from Spike to the highest qualified (my former law prof Bob Bastress and Menis Ketchum) is only 0.6 of a point. Still, it's the difference between barely "adequate" and "good," so make of that what you will.

The report also contains results for local circuit judges, so be sure and track down your home town jurist!

Maia Sez: I'd vote for Bob, if I wasn't a dog. And if I didn't live in Pennsylvania.

The Revolution Will Be Co-Opted

Yeah, OK, so nobody every really seriously thought much would come of the Ron Paul "revolution," which has turned out to be more like the Whiskey Rebellion than the War of Independence. Still, it's a little surprising to see a group of Paul supporters trying to rally the faithful behind John McCain for the fall. Because, you know, if there's one thing that galvanized the Ron Paul movement, it was the promise of an infinite US military deployment in the Middle East!

Album of the Day

Somewhere Else, by Marillion (2007): After the rousing success of Marbles, it was probably inevitable that the follow up would come up short. Still, Somewhere Else took a lot of abuse when it came out last year, probably more than it deserves. It certainly comes up short, but it's hardly unlistenable. If anything, it seems a bit like Marillion on autopilot. Everything that makes them great is there, but just not in sufficient volume. Very few tunes maintain a high quality the whole way through (the title track and "The Wound"), but they almost all have redeeming value. Except "Most Toys," which just sucks.

I Guess BTSOOI* Is Out of the Question, Then?

Sunday's New York Times has an interesting article about an odd intersection of workplace regulation and art. Seems that EU workplace regs limit the amount of noise to which a worker can be exposed and that's causing a problem for various symphony orchestras:

The cancellation is, so far, probably the most extreme consequence of the new law, which requires employers in Europe to limit workers’ exposure to potentially damaging noise and which took effect for the entertainment industry this month.

But across Europe, musicians are being asked to wear decibel-measuring devices and to sit behind see-through antinoise screens. Companies are altering their repertories. And conductors are reconsidering the definition of 'fortissimo.'

Alan Garner, an oboist and English horn player who is the chairman of the players’ committee at the Royal Opera House, said that he and his colleagues had been told that they would have to wear earplugs during entire three-hour rehearsals and performances.

'It’s like saying to a racing-car driver that they have to wear a blindfold,' he said.

The situation is causing some serious rifts:

Although Switzerland is outside the European Union, an extraordinary noise-related argument between the conductor and the Bern Symphony Orchestra disrupted the opening night of Alban Berg’s 'Wozzeck' in March.

The piece called for 30 string players and 30 wind and percussion players, all crammed into a too-small pit. When the stage director complained in rehearsals that the music was too loud, the conductor didn’t order the orchestra to play more softly, but instead asked for a cover over the orchestral pit to contain the noise, said Marianne Käch, the orchestra’s executive director.

That meant the noise bounced back at the musicians, bringing the level to 120 decibels in the brass section, similar to the levels in front of a speaker in a rock concert. The musicians complained. The conductor held firm. But when the piece began, 'the orchestra decided to play softer anyway in order to protect themselves,' Ms. Käch said.

That made the conductor so angry that he walked off after 10 minutes or so, Ms. Käch said. Told that there had been 'musical differences' between the conductor and the orchestra, the perplexed audience had to wait for the two sides to hash it out.

In the end, the orchestra agreed to return and finish the performance at the loud levels. For subsequent performances, a foam cover that absorbed instead of reflecting the sound was placed above the pit, and the conductor agreed to tone things down.

Surely, somewhere, some enterprising composer/performance artist is going to work that dispute into a new work!

Maia Sez: I think most "music" is too loud, especially the kind JDB likes!

* BTSOOI is a technical marching band/drum corps dynamic term ("Blow The Shit Out of It").

Well Timed Irony

Joseph Rowntree was an English Quaker philanthropist (and chocolatier) who set up the Joseph Rowntree Foundation to fight social ills such as slavery and the opium trade. So it might come as quite a shock to him to find out that his Foundation has found a new scourge upon the planet:

A poll by the Joseph Rowntree Foundation uncovered a widespread belief that faith - not just in its extreme form - was intolerant, irrational and used to justify persecution.

Pollsters asked 3,500 people what they considered to be the worst blights on modern society, updating a list drawn up by Rowntree, a Quaker, 104 years ago.

The responses may well have dismayed him. The researchers found that the 'dominant opinion' was that religion was a 'social evil'.

Many participants said religion divided society, fuelled intolerance and spawned 'irrational'educational and other policies.

And really, it's not too hard to fathom why. The Pope, in his recent tour of the United States, was supposed to confront the sex abuse scandal that has rocked the Church. But, in typical fashion, he just ended up passing the buck (h/t to Crime & Federalism):

In a speech delivered after evening prayer, the pontiff berated the bishops for their poor handling of a scandal surrounding sexual abuse of children in the church.

But he urged efforts 'to address the sin of abuse within the wider context of sexual mores" as well as a reassessment of "the values underpinning society.'

'What does it mean to speak of child protection when pornography and violence can be viewed in so many homes through media widely available today?' the pontiff said on the first full day of his US visit.

'Children deserve to grow up with a healthy understanding of sexuality and its proper place in human relationships. They should be spared the degrading manifestations and the crude manipulation of sexuality so prevalent today.'

Shorter version - blame society. Which is funny, because society wasn't the multinational organization that shifted abusive priests around like some sort of ecclesiastic shell game. It wasn't society that operated a cover up worthy of the largest crime families (or Republican presidential administrations). Hell, if there's one thing society is big on punishing severely, it's child rape!

Geez, maybe South Park had it right after all.

Even the Stupid are Outraged!

Wow, this China hosting the Olympics thing is really getting some people upset:



Image shamelessly purloined and a tip of the hat to PrawfsBlawg, which points out that, in fact, that Nazi Germany hosted both Olympic games in 1936!

Damned If You Don't . . . (Update)

Last month, I blogged about a murder case in Illinois in which two lawyers for another man kept secret his confession to the murder for 26 years. Friday's Chicago Tribune has an update on the case. Alton Logan, the man convicted of the murder who has always maintained his innocence, has been granted a new trial and released on bond. For the first time in more than a quarter of a century, he is a free man. But it's not clear he'll remain that way:

In testimony Friday, a former employee at the McDonald's restaurant on the South Side where security guard Lloyd Wickliffe was slain identified Wilson from a photo as the gunman.

Gail Hilliard, a CTA bus driver who was an 18-year-old college student working an evening shift the night of the murder, said she was about to make a milkshake for a drive-through customer when she heard a commotion at the counter, turned and saw a shotgun-toting man enter the restaurant.

She first identified the man as Wilson in a 1999 interview with attorney Richard Kling. Hilliard was interviewed by police after the slaying but did not give a statement, said Vincenzo Chimera, a lawyer with the Illinois attorney general's office.

That office, which is prosecuting the case, will make the decision whether to go to trial again.

Additional new evidence came from Joseph Prendergast, 63, a semi-retired teacher who tutored Wilson in prison for several months in 1982 and 1983. Prendergast, who came forward recently after reading a story about the case in the Tribune, testified Friday that Wilson told him at the time that he had shot a shotgun inside a McDonald's.

Also Friday, prosecutors called to the stand Alvin Thompson, 56, a security guard wounded the night of the shooting. He again identified Logan as the gunman.

According to Chimera, Logan has been identified in court testimony 18 times as the gunman. He argued to the judge that Hilliard's identification of Wilson came years after the crime and that Prendergast didn't hear Wilson specifically confess to the 1982 murder.

As I argued in the initial post, it's worth noting in analyzing what the two attorneys for Wilson did by sitting on his confession that it's not as simple as "he said he did it, so the other guy must be wrongly convicted."

Credit Where It's Due

I've slagged off on Danica Patrick before, as she became an icon of American motorsports without ever winning a race. Well, I can't do that anymore. On this last (ever, hopefully) split weekend for American open-wheel racing, Danica won the rain delayed Indy Japan 300 at Honda's Twin Ring Motegi oval late last night. Good for her.

Maia Sez: You go, girl!

Dog is My Co-Pilot

The girlfriend is off traveling on business this week, so I have a small, four-legged house guest with me:



That's right, Maia, the One Eyed Wonder Pup will be hanging with me this week. She may even contribute some words of wisdom to a post or two.

Maia Sez: Hola, todos!

Album of Last Friday

Afraid of Sunlight, by Marillion (1995): This was the first Marillion album I bought when it was new. I wasn't really familiar with the Hogarth era at the time and, aside from the title track and "King," the album failed to make any impression on me. Not enough going on. It wasn't until later, when I really immersed myself in the album, that it started to grow on me. Yeah, I could do without "Beautiful," but other than that, I wouldn't toss any other tune out the door. In fact, the run from "Afraid of Sunrise" through to the end of "King" is about as good as Marillion gets, from either era. A minor classic, not as epic as Brave or Marbles.

A Late Charging Darkhorse in the Democratic Race?

Well, not quite, but voters in Idaho will at least have an alternative Obama and Clinton when they go to the polls on May 27. In a cunning strategy, the candidate is a step ahead of most politicians - he's already in jail:

Keith Russell Judd is serving time at the Beaumont Federal Correctional Institution in Texas for making threats at the University of New Mexico in 1999. He's scheduled for release in 2013.

Judd, 49, qualified for the May 27 ballot by submitting a notarized form and paying the required $1,000 fee, state Secretary of State Ben Ysursa said. As a result, Democratic voters will be able to choose among Barack Obama, Hillary Clinton and Judd.

'We got conned,' Ysursa told The Spokesman-Review of Spokane, Wash.

Will Judd play the role of spoiler in a close spud-flavored primary? Probably not. But the Dem race is so fucked up as is, why not bring in a prisoner to liven things up!

h/t to Doug at SL&P

Album of the Day

Brave, by Marillion (1994): A little while ago, jedi jawa posted about bridges and the people who jump off them (and I see that someone jumped off the New River Gorge Bridge yesterday), which, of course, put me in mind if Brave. It's a concept album, inspired by a BBC radio report vocalist/lyricist Steve Hogarth heard about a girl who was found wandering the Severn Bridge between England and Wales. She was mute and nobody knew anything about her, so they were pleading for information on the radio. Brave takes that incident as a jumping off point, trying to answer the "how did she get there" question, taking in along the way observations about the state of the modern world, obsessive love, child abuse, and media sensationalism. Musically and lyrically, it was a stunning return to form for the band after the so-so pop leanings of Holidays in Eden. The highpoint of H-era Marillion, at least until Marbles came along.

Album of the Day

Script for a Jester's Tear, by Marillion (1983): Holy cow - it's been 25 years since the most successful of the founding neo (i.e., "new") prog bands released their debut album. It's not all that new any more, but the prog mini revival that Marillion rode (along with groups like IQ, Twelfth Night, and Pallas) has had a long-lasting influence on the genre. As for the album itself, well, it's a little underdone. I like Conrad's line in the other Ground & Sky review that it "gets its indelible charm from its naivety." The band would go on to develop a richer and more interesting style, but the tunes on Script certainly served notice of what they could do.

Let the Killing Resume

After months of waiting, today the Supreme Count handed down its decision in one of the biggest cases of the term, Baze v. Rees. As I blogged back in January, Baze involves the issue of whether the standard 3-drug cocktail procedure used in lethal injections violated the prohibition against cruel and unusual punishment in the Eighth Amendment. Not surprisingly, the Court held that it didn't, 7-2, so the 30+ states with the death penalty and the federal government are free to crank back up their machineries of death once more.

What's bound to make more waves in the press than the actual decision itself, it how Justice Stevens came out swinging in his concurrence at the concept of capital punishment itself:

The thoughtful opinions written by THE CHIEF JUSTICE and by JUSTICE GINSBURG have persuaded me that current decisions by state legislatures, by the Congress of the United States, and by this Court to retain the death penalty as a part of our law are the product of habit and inattention rather than an acceptable deliberative process that weighs the costs and risks of administering that penalty against its identifiable benefits, and rest in part on a faulty assumption about the retributive force of the death penalty.

* * *

I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents 'the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.' Furman, 408 U. S., at 312 (White, J., concurring).

That's at pages 46 and 55 of the PDF on the Court's website (some formatting stuff omitted).

It's not the first time a Justice has issued such a call - in one of the Court's decisions last term involving gender discrimination in the workplace, Justice Ginsburg used her dissent to urge Congress to revise the statute to adopt the dissenters' interpretation of the applicable statute. It provoked some criticism at the time, but given that anything not in "the Court's" opinion is legally powerless, I don't see the harm.

More to the point, is Stevens right? Have we, as a nation, simply coasted along with regards to the death penalty, letting institutional inertia keep it going? Maybe. For all the bluster and bravado of people when they talk about the desire for executions, juries are returning death verdicts less and less often. Lots of states with the death penalty on the book never actually enforce it. On the other hand, earlier this year New Jersey became the first state in a long while to ditch the death penalty altogether.

That being said, assume the nation had a great debate about capital punishment and its retention was subject to some sort of national referendum - would the result be the abolition that Stevens (and I) hope for? I'm not optimistic. "Tough on crime" always sells when it comes to elections, and nothing's tougher on crime than the death penalty. 'course, I'm cynical about the democratic process any time it deals with criminal justice issues, so maybe I'd be pleasantly surprised.

You Are What You Eat . . . or Drink . . . etc.

Did you ever get the feeling that, increasingly, political campaigns are packaged like any other consumer product? Well, turns out, you're right! As this article in today's New York Times explains, it comes down to microtargeting:

If there’s butter and white wine in your refrigerator and Fig Newtons in the cookie jar, you’re likely to vote for Hillary Clinton. Prefer olive oil, Bear Naked granola and a latte to go? You probably like Barack Obama, too.

And if you’re leaning toward John McCain, it’s all about kicking back with a bourbon and a stuffed crust pizza while you watch the Democrats fight it out next week in Pennsylvania.

If what we eat says a lot about who we are, it also says something about how we might vote.

Although precincts and polls are being parsed, the political advisers to the presidential candidates are also looking closely at consumer behavior, including how people eat, as a way to scavenge for votes. The practice is called microtargeting, as much political discipline as buzzword. The idea is that in the brand-driven United States, what we buy and how we spend our free time is a good predictor of our politics.

Like any tool of political campaigns, there's no consensus on whether microtargeting has any real value at the end of the day. For example:

For example, Dr Pepper is a Republican soda. Pepsi-Cola and Sprite are Democratic. So are most clear liquors, like gin and vodka, along with white wine and Evian water. Republicans skew toward brown liquors like bourbon or scotch, red wine and Fiji water.

* * *

Jeff Navin, managing director of American Environics, a progressive research and strategy firm, agrees.

'Knowing that your base drinks gin doesn’t give you a clear idea on how to communicate with them effectively on issues,' he said. 'But if you take it a level deeper and say, are there psychological drivers that will help understand the values behind the behavior, you can speak to those values and persuade voters.'

Presumably you do it with a glass full of Tanqueray, right? I guess that explains Duhbya's past appeal as the guy voters want to have a beer with, tho'.

Album of the Day

Üdü Wüdü, by Magma (1976): If there is one band that hangs over progressive rock like some sort of demonic specter, it's Magma. And how couldn't it be? The band (1) is French, (2) was formed by a drummer, (3) created it's own language, Kobaïan, for lyrics, and (4) was so out there that it spawned its own prog subgenre, Zeuhl. So leave it to me, when picking up my first Magma album last year, to grab the one that seems to get the most tepid response from fans (to be fair, it was the only one in stock). But I like what I've heard (and I'm not as bothered by the more prominent use of synths as some folks), particularly the sprawling 18-minute "De Futura," so I'll have to expand the collection. If it really is, as some have said, "room clearing" prog, I'll find it yet!

Tales from the IP Wars

There are a couple of lawsuits, pending on separate continents, that raise some interesting issues of copyright, trademarks, and the role of fans in building the brands.

In Germany, Gail Zappa - widow of Frank and head of the Zappa Family Trust - is suing a long-running festival that has been promoting his music for years. Zappanale - which featured in the big finish of the documentary Rock School - has roots behind the Iron Curtain:

The Zappanale was first held in 1989 prior to the fall of the Berlin Wall. It was, says Arf Society President Thomas Dippel, a small affair made up of "about 80 Zappa freaks" and two cover bands. And it certainly wasn't without risk. Zappa records were banned in communist East Germany and were expensive on the black market. Arf Society treasurer Wolfhard Kutz, who first heard Zappa as a 17-year-old in 1972, found out after the Wall fell that he had been a favorite target for East German secret police snoops. The Stasi even wrote in Kutz's file that he "knows how to influence the youth with Zappa."

Since then, the Zappanale, has grown to its current three-day format with 17 bands playing for Zappa fans who come from around Europe to attend -- and pay €80 ($125) for the pleasure, a price that also comes with a campsite.

The Arf Society doesn't make much money on the event, plowing what little profit there is into next year's festival. Unfortunately, part of the merchandise they sell has:

the unmistakable logo depicting Zappa's unique facial hair, the moustache-soul patch combo. And that, says Gail Zappa, Frank's widow and head of the Zappa Family Trust, violates the Zappa trademark.

She's probably right, on that discreet issue. But the suit against the fest is part of a long running legal campaign on Gail's part to control Frank's musical legacy, aimed at everyone from YouTubers to bands that want to play his music. Does that, ultimately, help "protect the intent and integrity of his music," as Gail insists? It's hard to tell. As the article points out:

Despite all his blasting of the government and of efforts at what he called 'social engineering,' Zappa was also a great believer in American-style capitalism -- and in strictly obeying copyright laws. He even made sure to pay royalties for the use of John Cage's completely soundless composition '4'33'.

But that doesn't ultimately mean that now, at age 67, he wouldn't take a more charitable view of admirers like Zappanale? Who knows. I just wish Gail would plow some of the energy she displays going after the likes of the Arf Society and get around to releasing the goddamn Roxy DVD already!

Meanwhile, in a federal courtroom in New York City, JK Rowling and Warner Brothers are suing a small publisher over The Harry Potter Lexicon. The Lexicon began as a website, cataloging the characters, places, and other details in the the Harry Potter universe. It even won praise from the author:

The case also explores the line between free Web content created by fans and a commercially published book. Ms. Rowling has openly praised the Web site on which the Lexicon is based, giving it a “fan site award” in 2004 and commenting in interviews that she even relied on the site — which provides an annotated catalog of characters, spells, magic potions, locations and events in her books — while writing. It was only when RDR decided to transform the site into a book that she objected.

It appears that Rowling has a legitimate beef. For one thing, a free fan-run website is different than a for-profit hard copy book being produced. For another, it appears from the Times article that much of the original content of the web site didn't make it into the book, for some reason. Finally, Rowling has had plans of doing a similar book herself and having another one on the market would dilute its value, although probably not by much.

What links these two cases, I think, is that they both involve copyright holders using legal force to attack fans, in one form or another. Neither likely has anything really to do with money - Rowling is fabulously wealthy even if she never writes another word and Frank Zappa is, well, dead and no longer in need of funds. In both cases, the legal arguments seem to line up with the rights holders. But does that mean they should deploy them? Is it really that essential to the protection of something that the defendants care so much about in the first place?

The Iceberg Was Framed!

Today, on the 86th anniversary of the sinking of the Titanic, this article from the New York Times sheds some new light on what caused the liner to sink on her maiden voyage and become the subject of a horribly overrated film. What's to blame? The rivets:

For a decade, the scientists have argued that the storied liner went down fast after hitting an iceberg because the ship’s builder used substandard rivets that popped their heads and let tons of icy seawater rush in. More than 1,500 people died.

When the safety of the rivets was first questioned 10 years ago, the builder ignored the accusation and said it did not have an archivist who could address the issue.

Now, historians say new evidence uncovered in the archive of the builder, Harland and Wolff, in Belfast, Northern Ireland, settles the argument and finally solves the riddle of one of the most famous sinkings of all time. The company says the findings are deeply flawed.

That conclusion is bolstered by examination of rivets recovered from the wreck since it was discovered in 1985.

OK, so the iceberg still played a critical role. But more and more, it appears that industrial sloppiness played a large part in history's most infamous maritime disaster.

The Price of Survival

Today's New York Times has an interesting article about one historic city's attempt to ensure its survival by marketing itself as a tourist destination while trying to maintain its unique atmosphere.

The city is Luang Prabang, a 20,000-person community on the Mekong River in the northern part of Laos famous for its large community of Buddhist monks (there are 34 temples in town). As the modern world creeps into the Laotian mountains, the city is turning to tourism to fuel its economy:

Today, Luang Prabang displays preservation’s paradox. It has saved itself from modern development by packaging itself for tourists, but in the process has lost much of its character, authenticity and cultural significance.

Like some similar places around the world, this small 700-year-old city of fewer than 20,000 people is being transformed into a replica of itself: its dwellings into guest houses, restaurants, souvenir shops and massage parlors; its rituals into shows for tourists.

'Now we see the safari,' said Nithakhong Somsanith, an artist and embroiderer who works to preserve traditional arts. 'They come in buses. They look at the monks the same as a monkey, a buffalo. It is theater.'

The Buddhist heart of Luang Prabang — the tranquillity that attracts visitors from abroad — is being defiled, he said, adding, 'Now the monks have no space to meditate, no space for quiet.'

Luang Prabang was designated a UNESCO World Heritage Site in 1995, which may turn out to be a mixed blessing:

Its strict guidelines on renovation and new construction have helped preserve the narrow streets, small structures and relatively light traffic of a past era. No tall buildings mar the cityscape.

'The problem is that they took care of the hardware but not the software, the culture,' said Gilles Vautrin, a restaurant owner from France who has lived here for nearly a decade.

'The city is being gentrified,' he said. 'It will be a museum city. It will be a hotel city. Maybe the tourists will like it, but it won’t be the same Luang Prabang.'

Or, as another person starkly put it:

Tourist brochures describe Luang Prabang as a place where 'time stood still'; poverty and hardship have allowed the past to linger.

'The paradox is that Unesco gives out the Heritage Site label partly to reduce poverty, but reducing poverty is reducing heritage,' Mr. Rampon said. 'If you want to preserve heritage, you must keep poverty.'

Although the United States doesn't have cities and towns with the type of long history of Luang Prabang, the same issue will surface as the sprawl of urban areas continue to spread and tough choices will have to be made about how best to preserve - or let go - of our history.

Album of the Day

Insights, by Lemur Voice (1996): When I bought this album long ago (used, I think), I wrote it off as a cheap Dream Theater rip off. Funny thing - as DT has moved further away from the style of Images and Words, the less I enjoy them. So, since this album is very much in the vein of I&W, but perhaps a bit less technical, I really found myself enjoying it this morning. They're still a DT clone, but at least they're cloning the right part.

A Busy SCOTUS Week

The Supreme Court has a full schedule of oral arguments this week, including a few really interesting ones.

The case that will get the most attention comes on Wednesday, when the Court considers the constitutionality of a Louisiana inmate's death sentence. That, alone, isn't all that rare, but what makes this one big is the underlying crime - rape of a child. You see, back in the 1970s, the Court held that states couldn't impose the death sentence for rape. But in that case, the victim was a legal adult (albeit a 16-year old). Some states - Louisiana is the first to implement it - have thus read the Court's precedent to not extend to rapes of a children. It will be interesting to see whether the Court's "evolving standards of decency" only works one way or if it will expand the offenses to which capital punishment applies.

Two other cases, both set for Tuesday, are much less high profile, but interesting for a different reason. In each case - both federal criminal cases - the Government and the defendant agree that the Court of Appeals made a mistake. You'd think that would be that, right? Not quite:

On Jan. 7, Jay Jorgensen took an unusual call from his former boss, Supreme Court Justice Samuel Alito Jr.

Alito's request: Would Jorgensen have time to argue a Supreme Court case in April -- a case Jorgensen had never heard of -- for free?

In Greenlaw v. United States, it seems the government had decided that it agreed with [petitioner - JDB] Michael Greenlaw on the main sentencing-related issue in the case. So the Court needed someone else to argue against lawyers for Greenlaw, a Minneapolis drug dealer.

* * *

Even more rare is the fact that Jorgensen won't be the only lawyer arguing as an appointed counsel under these circumstances on Tuesday. In a separate sentencing case called Irizarry v. United States, Catholic University law professor Peter 'Bo' Rutledge, a former Clarence Thomas clerk, will also be appearing as 'amicus curiae in support of the judgment below,' as the Court phrases it. This will also be Rutledge's first time before the Court.

'I've been talking to Bo. We're both honored and both scared,' says Jorgensen. Rutledge declines comment.

I can imagine how difficult it will be to defend court decisions that are seen as completely wrong by the parties. But, given that I think those decisions were wrong, I'll go against my usual instincts and not root for the underdogs!

From the "No Shit" File

Boy, it must have been a slow weekend around the Charleston area, 'cause this was the front-page headline on today's Gazette:

In search of Bigfoot
Sasquatch sightings scant in W.Va.

No shit! It gets better:

Twenty searchers taking part in a four-day quest for Bigfoot along a stretch of the Greenbrier River in Pocahontas County emerged from the woods on Sunday without making any visual encounters with the legendary primate.

That's some Earth-shattering news, right there - a bunch a people wandering around a forest managed to not find a beast that's never been proven to exist. Call Katie Couric!

During the nighttime forays, searchers often play recordings of suspected Bigfoot whoops or sound their own Sasquatch calls in an effort to attract the elusive primates.

Calls? Since they've never managed to attract and capture a sample Sasquatch, perhaps the calls aren't all that accurate, huh?

The one redeeming fact in the story is that it appears that none of these loons were actually from West Virginia.

Waterboarding Hits the Private Sector

Used to be, when you needed to motivate a sales force, it went something like this:



But this is the 21st Century, the era of the War on Terra, when the top members of the Government meet in the White House to give an Ebert & Roper thumps up/thumbs down to various methods of torture. Is anybody surprise that waterboarding has made its way from Iraq and Gitmo to the private sector? In Utah, no less:

No one really disputes that Chad Hudgens was waterboarded outside a Provo office park last May 29, right before lunch, by his boss.

There is also general agreement that Hudgens volunteered for the 'team-building exercise,' that he lay on his back with his head downhill, and that co-workers knelt on either side of him, pinning the young sales rep down while their supervisor poured water from a gallon jug over his nose and mouth.

And it's widely acknowledged that the supervisor, Joshua Christopherson, then told the assembled sales team, whose numbers had been lagging: 'You saw how hard Chad fought for air right there. I want you to go back inside and fight that hard to make sales.'

The main contention in his suit, apparently, is whether Hudgens knew what was really going to happen or not (the last exercise, he said was "an egg toss"). It seems fairly obvious he wouldn't have agreed to it knowing what it was.

On the other hand, those tedious "team building" things are pretty awful, anyway. Maybe waterboarding is a step up?

Don't Taunt the Judge

I know that, regardless of how infuriated a judge makes me in court, if I ever stoop to personal insults I'm a dead man. Forget the best interests of my client - the best interest of keeping my ass out of jail will be gravely harmed. It works the same way on the soccer field, too:

Take Peru for example where champions Deportivo San Martin have just booted Uruguayan striker Mario Leguizamon into touch for insulting a female referee.

The club took the decision to terminate his contract after Leguizamon allegedly told ref Silvia Reyes that she was 'unsatisfied sexually' following his red card during San Martin's clash with Alianza Atletico last weekend.

'San Martin expresses solidarity (with Reyes) not just because she is a lady but also because she is the authority in control of the match and therefore deserves obedience and respect,' the club said in a statement.

Album of Last Friday

Hope, by Klaatu (1977): Occasionally I'll be poking around the local brick-and-mortar CD store and come across a band name that I know, vaguely, as being proggy, but can't remember the details. Thrilled to find something unusual, I'll pick it up. That's what happened when, on a lunch time excursion for Kraftwerk, I stumbled upon a 2-on-1 offering from Klaatu. I knew vaguely the band name (and, of course, it's famous namesake) and thought it might be one of the German prog bands.

I was a little surprised to get it open and discover that they're Canadian and a lot poppier than I expected. There's a huge Beatles influence - allegedly, the first album (the other half of this CD) raised questions that it was a Beatles album released under another name - but I find it a sub-par offering. It's got some nice moment (particularly on what was side 2 of the original LP), but there's a recurring vein of theatricality that just sounds embarrassing to my ears ("Sir Bodsworth Rugglesby III" from the first album sounds like a bad Muppet Show outtake). Lots of folks seem to think these are masterpieces, but I can't share that enthusiasm.

Album of the Day

Live at the Regal, by B.B. King (1965): While this is one of the landmark blues albums (and live albums) of all time, it's not without its faults. For one thing, it's only a little more than a half-hour long, even in CD form. Surely there's more material that could be added as bonus material. For another, the sound quality is pretty bad. It's mostly muddled, with occasional punctuations of audience cheers (particularly when the women speak up after the "I've gave you seven children / And now you want to give them back" lines in "How Blue Can You Get?". Still and all, it's a prime example of BB's magnetism and signature guitar work. Not as clean as later live albums, but alive and . . . well, "regal," as any of them.

Tale of the Torch

I've been of two minds this week watching the Olympic torch on its tortured tour on the way to Beijing for the Summer Games. On the one hand, I certainly grasp the point that the protesters are trying to make with regards to the situation in Tibet. China certainly has a way to go in that area before it makes things right. But on the other hand, the people who were actually carrying the torch at this point don't have anything to do with the oppression in Tibet and the protesters were sullying what should have been a proud and joyous moment. Besides, isn't the Olympic torch a symbol of international goodwill and brotherhood that should remain above politics?

Well, not exactly. As this BBC piece shows, the history of the Olympic torch and its journey to the games is a little less exemplary:

But the idea of lighting the torch at the ancient Olympian site in Greece and then running it through different countries has much darker origins.

It was invented in its modern form by the organisers of the 1936 Olympics in Berlin.

And it was planned with immense care by the Nazi leadership to project the image of the Third Reich as a modern, economically dynamic state with growing international influence.

* * *

Media coverage was masterminded by Nazi propaganda chief Josef Goebbels, using the latest techniques and technology.

Dramatic regular radio coverage of the torch's progress kept up the excitement, and Leni Riefenstahl filmed it to create powerful images.

All of which is not to say that the torch as a symbol hasn't progressed beyond its origins, but it's hardly the sacred symbol that it is sometime held up to be.

On a related front, perhaps the protesters might take a page from the Dalai Lama:

During a brief stopover in Japan on his way to the United States, the Dalai Lama, the exiled Tibetan spiritual leader, told reporters no one should try to silence demonstrators who are protesting Chinese rule in Tibet. But he struck a conciliatory tone toward Beijing, apparently distancing himself from calls in the West for a boycott of the Olympic opening ceremony.

What Should a Voter Know?

In 2008, West Virginians will go to the polls to fill two seats on the five-person Supreme Court of Appeals (the highest and only appellate court in the state). It's shaping up to be an ugly four-way race, with memories of the 2004 race still the topic of national attention. And now an out of state interest group is trying to cut down some of the reforms passed in the wake of that race.

Specifically, the Center for Individual Freedom, from neighboring Virginia argues:

that West Virginia's election laws - which require the group to disclose its donors if it buys political advertising - violate its free speech rights under the First Amendment.

The Virginia-based organization asked U.S. District Judge David A. Faber to grant it an injunction allowing it to advertise in the upcoming state Supreme Court election without disclosing its spending or its donors. The state's primary election is May 13.

Anonymous political discourse has a long history in this country. Heck, the most famous of political debates - between supporters and opponents of ratifying the Constitution - was done largely by pseudonymous authors. And, as this discussion of a recent Supreme Court case notes, it does have First Amendment protection:

Anonymous speech is a weird little doctrine emanating from two weird cases: McIntyre v. Ohio Elections Commission, a 1995 case striking down an Ohio law prohibiting the distribution of anonymous campaign literature; and Buckley v. American Constitutional Law Foundation, a 1999 case prohibiting Colorado from forcing the circulators of ballot-initiative petitions to wear ID badges. In both cases the court talked about the importance of anonymous political speech, and both cases leave open the unsettling possibility that election-related materials can always be anonymous. Presumably this was the issue the high court planned to resolve today: Can a city force door-to-door solicitors to cough up a name (either to the mayor's office or to the solicitee) prior to being allowed to speak?

The Court answered that question "no."

Does that settle the matter for our election laws? It looks that way. It certainly appears that the West Virginia law bans anonymous speech and thus falls clearly under McIntyre.

Which is kind of a shame, because you'd think that voters should have a right to know who is trying to sway them to vote for one candidate or another. On the other hand, it really shouldn't matter who is making the pitch - it's success should be based on the pitch itself, not who makes it. But I'm not sure that most voters care enough about elections to actually sit down and analyze things that way.

Album of the Day

Discipline, by King Crimson (1981): Seven years passed between Red, the final end of 70s Crimson and the reconstituted unit that produced Discipline. Aside from the time, the albums sound like they come from different planets - musically speaking, of course. Gone are the 10+ minute opuses, replaced by sleek New Wave-influenced tracks. It's hard to think that "Elephant Talk" or "Indicipline" were the product of the same band that produced "Starless." And, of course, it wasn't, really. Only Fripp and Bruford were carry overs and the original plan was to call the band Discipline, as well. But the Crim name carries a certain weight and so it carried on into a new decade and, eventually, a new century. It ain't Red. It ain't In the Court of the Crimson King. But it is utterly brilliant, from start to finish.

Album of the Day

Islands, by King Crimson (1971): Today, I had a revelation. I can get excited about almost every incarnation of the Crim - except for this version, that existed between the debut releases and the killer Bruford/Wetton years. Something was lacking, but I couldn't pinpoint it. Sure, some bits - like the instrumental "Sailor's Tail" - were good, mostly when the band was cranked up in "Schizoid . . ." style. But the more pastoral acoustic stuff . . . well, it just sort of lays there. So today, I figure out that it appears that this era of the Crim is the only one that relied solely on Fripp as a composer (Pete Sinfield contributed lyrics only, AFAIK). Other variants of the band have had an Ian McDonald, Wetton/David Cross, or Adiran Belew who have a lighter touch than Fripp and have (I think) made major contributions to the less heavy bits of the Crim cannon. Or I think so, anyway.

What Should a Jury Know?

This past week, the legal blogosphere has been abuzz (see Sentencing Law & Policy, Volokh, TalkLeft, and Gideon) over a decision last week in a federal child porn prosecution. In amidst the 236 pages (288 with the appendix) of issues covered by Judge Jack Weinstein in US v. Polizzi is a fairly bold proposition - that a jury should be informed of the sentencing consequences of its verdict. Depending on your point of view, it's either a bold decision that recognizes the changed landscape of federal sentencing in the past decade and calls for a rethinking of established precedents or the work of a criminal-friendly activist judge who's off tilting at windmills and wasting everyone's time.

I. The Crime, The Punishment

Several years ago, Polizzi claims, he stumbled upon child porn while looking for adult porn, was shocked at what he saw, and began downloading all he could find with the intent of turning the evidence over to police. He never did, due to his own history of being sexually abused and his distrust of law enforcement. He never traded images with anyone else, just downloaded and viewed them. He was discovered when an undercover police officer joined an online child porn club of which Polizzi was a member and tracked down members via IP addresses.

Polizzi was charged and convicted of multiple counts of receipt and possession of child pornography. The statute, 18 USC §2252, provides a 0-10 year sentence for possession of child porn, but a 5-20 year term for receipt. Thus, once convicted of receiving child pornography, Polizzi was subject to, at the very minimum, five years in prison.

Therein lies the rub. Polizzi repeated asked that the jury be informed that, if it convicted him on the receipt charges, he would be subject to a mandatory minimum sentence. Weinstein denied the motion, as one would expect. Outside of a few states in which the jury actually imposes sentences (and death penalty cases, of course), courts have routinely held that jurors aren't to know about the sentencing consequences of their verdicts.

II. How Sentencing Works (or Doesn't)

Sentences, typically, have been the judge's territory. A guilt verdict sets a broad range of options for the court to consider. Then, after considering a wide range of information, some of which has nothing to do with a particular defendant's guilt or innocence, the judge fashions the most appropriate sentence.

That's the theory, anyway. It comes from a 1949 Supreme Court case called Williams v. New York, 337 US 241 (1949), which dealt with what kind of evidence a court could consider while considering a death sentence. Williams was decided at a time when the rehabilitative model of sentencing was at its height. Rehabilitation required sentences tailored to each individual defendant. As a result, the amount and type of information that a judge could consider when imposing sentence was nearly limitless. As the Court put it:

Under the practice of individualizing punishments, investigation techniques have been given an important role. Probation workers making reports of their investigations have not been trained to prosecute but to aid offenders. Their reports have been given a high value by conscientious judges who want to sentence persons on the best available information rather than on guesswork and inadequate information. To deprive sentencing judges of this kind of information would undermine modern penological procedural policies that have been cautiously adopted throughout the nation after careful consideration and experimentation. We must recognize that most of the information now relied upon by judges to guide them in the intelligent imposition of sentences would be unavailable if information were restricted to that given in open court by witnesses subject to cross-examination. And the modern probation report draws on information concerning every aspect of a defendant's life. The type and extent of this information make totally impractical if not impossible open court testimony with cross-examination. Such a procedure could endlessly delay criminal administration in a retrial of collateral issues.

Id. at 249-250 (footnotes omitted). That theory has been written into sentencing law ever since. See, e.g., 18 USC §3661 ("No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.").

Williams is a creature of its time - a time that has come and gone (largely) in sentencing. Where untrammeled discretion at sentencing was once the order of the day, now federal judges are limited by Guidelines and, as relevant here, mandatory minimums, when imposing sentences. Even Booker and its progeny haven't changed that fact.

III. Back to Judge Weinstein

So, what does this mean in Polizzi's case? As it turns out, after the jury returned its verdict, Judge Weinstein spoke with several of the jurors. They believed that treatment, not imprisonment, is what Polizzi needed, due to his abuse-induced mental illness. When informed that he would face a mandatory five years in prison, they declared that they would have voted not guilty (by reason of insanity) had they known that fact.

Armed with that information, Judge Weinstein granted a defense post-trial motion for a new trial on the receipt charges. He reasoned that while precedent foreclosed the argument that a defendant had a right to a jury instruction about sentencing consequences, it was not so clear that courts were precluded from informing the jury of those consequences. Regardless, Booker changed everything, given its emphasis on the jury's role in sentencing proceedings. He also noted that the result would not set Polizzi free, as even a not guilty by reason of insanity verdict would mean confinement (perhaps for a long time - ask John Hinkley).

It seems to me, after an admittedly quick reading, that Judge Weinstein is not as far off the reservation as, say, Orin Kerr over at Volokh, makes him seem. It's absolutely true to say that Polizzi wasn't entitled to such an instruction under the current state of the law. But Judge Weinstein's analysis doesn't appear to fly in the face of that law, so much as it finds the cracks in the precedents and slips gingerly through them. If a colleague brought that argument to me and said, "what do you think of this?", I'd probably shoot it down (particularly in the Fourth Circuit). But I wouldn't call it frivolous. The mandatory nature of the punishment, it seems to me, changes the calculus a bit. Or at least provides some wiggle room.

IV. The Other "N" Word - Nullification

A lot of the talk about this decision comes from the fact that Judge Weinstein is practically, if not explicitly, endorsing the power of jury nullification. Jury nullification, to be brief, is the power of the jury to acquit a defendant even when there is evidence to support a conviction proven beyond a reasonable doubt, usually as a form of protest or expression of disgust with the particular law being enforced. Think OJ. While Judge Weinstein adamantly argues that he's not endorsing nullification:

The right of jurors to be told of the high stakes of their decisions under a mandatory sentencing scheme so that they can decide to find a defendant guilty or innocent or guilty of a lesser crime 'is a point independent of the right to nullify.'

it's hard to see any practical difference.

Whatever the normative arguments in favor or against nullification (here's a lively discussion of them), it's had a checkered legal past. It's always been a part of the jury system and is inherent a the scheme in which the state/Government has no power to appeal a not guilty verdict. Courts have generally held that juries don't have a right to be told about that power, but there's little than can be done if the choose to exercise it.

I'm skeptical about giving nullification a larger role in the criminal justice system. For one thing, as someone who thinks that it's hard enough to get a jury to honestly apply a beyond a reasonable doubt standard, I think encouraging nullification would lead to (if you will) reverse nullification - convictions against the weight of evidence. From a defense perspective, I don't think the payoff would be worth the cost.

For another, in a sentencing context, how much of the info traditionally presented to a judge gets to the jury so they can exercise their full discretion? Consider, for example, a felon in possession prosecution, which would normally lead to a 0-10 year sentence. However, if the defendant has three prior qualifying convictions under the Armed Career Criminal Act, the sentence jumps to a mandatory 15 years (with a life max). If a jury is told about the 15-year mandatory, must they know why it's that high? If not, doesn't that sort of defeat the purpose of telling the jury in the first place?

V. Concluding Thoughts

In the end, I think Judge Weinstein is likely to be reversed on appeal, and I imagine he probably knows this. Then why go through such trouble? Couldn't he, as some folks have suggested, simply written the same opinion but concluded, "in spite of all that, binding precedent requires me to reach a contrary result, which I hope the Court of Appeals or Supreme Court will remedy."?

Sure, but it wouldn't bring the kind of attention that this tactic did. Knowing that the defendant would appeal a negative ruling anyway, it likely won't consume any more judicial resources when all is said and done. But it might spark some discussion and force the courts higher up to reconsider what seems to be a settled area of law. Maybe, in the end, it stays settled. And maybe it doesn't. We'll see.