Through the Booker Looking Glass

Judge Cassell, from out in Utah, who was one of the first district court judges to write a major opinion on Blakely and the Sentencing Guidelines, is first again with a major opinion applying the new dictates of Booker. Cassell, of course, had been applying "advisory" Guidelines for several months and was probably in a perfect position to be first to the punch on this issue. Unfortunately, his very thorough opinion makes me fear that all the promise of Blakely that dangled in the air for six-plus months has vanished into the either. Cassell's approach is that the sentences produced by the Guidelines are inherently appropriate, taking into account all the factors judges can now consider under Booker. Deviations from the Guidelines will be possible only in very rare cases. More rare than the old-fashioned departures? Who knows. And does this all sound a whole lot like the mandatory Guideline system that the Supreme Court says is a no-no? It depends on what the Circuit Court does with it.

The underlying logic of Cassell's opinion is that individual judges are not really capable of adequately evaluating all the appropriate factors because of their limited factfinding. The Sentencing Commission, and, to a lesser extent, Congress, on the other hand is in the position to gather facts from many sources and make policy judgments accordingly. I'll be interesting to see if other district judges take serious umbrage with that analysis. Cassell was not on the bench in the pre-Guidelines era and thus has no experience (that I am aware of) of weighing individual cases and imposing sentence. Maybe (hopefully) some older judges, eager to regain some of the power they had pre-1987, will be more flexible.

So, after three days of reading, rereading, and pounding my head on my desk, I still think that Booker is, on the whole, a bad decision for defendants (even though it was used today in the SDWV to give a small benefit to an elderly defendant who is on death's door). And, with due respect to Prof Berman, the whole situation brings to mind not The Who's "Won't Get Fooled Again" (although that's appropriate), but Fish's "Vigil," from the Scotsman's first solo album:

If there's somebody up there
Could they throw me down a line?
Just a little helping hand just a little understanding
Just some answers to the questions that surround me now.
If there's somebody up there
Could they throw me down a line?
Just a little guiding light to tell wrong from right
Just some answers to the questions that I'm asking you
I keep a vigil in a wilderness of mirrors
Where nothing here is ever what it seems
You stand so close but you never understand it
For all that we see is not what it seems, am I blind?

***

You're reaching out, you're so close you can touch it
But it all disappears when it's always so near.

Booker Backlash

One of the fears of some in the defense community as we waited on Booker was that Congress would swiftly overreact to whatever the Court did by imposing a "solution" to the problem by severely jacking up sentences. Sadly, it appears that fear may come true, even without the big Booker victory many of us wanted. As The New York Times reports today, many GOP Congressmen are pissed off about Booker and are eager to correct this "disaster," as one of them put it. So I guess we should get now while the gettin' may be good, before Dubya and his pals screw the whole thing up.

After a second read of the opinion itself, I'm still fairly pessimistic about the outcome. Stevens's opinion really hits some high notes, particularly about how jury factfinding might not be the most expedient means of proceeding, but it protects valuable and long-held rights. Breyer's opinion, on the other hand, does all it can to squirm out from under the weight of that principle.

How Breyer gets from "Congress's goal was uniformity" to "therefore the Guidelines are advisory" makes sense to me in only one way. He was faced with basically two options that would serve separate goals. The option that really would provide some uniformity, Stevens's plan of grafting jury factfinding onto the Guidelines, would make it more difficult for the Government to jack up sentences (or at least it would make them work harder). The other option, the advisory scheme, does away with uniformity in order to maintain the "real conduct" system of the Guidelines. "Real conduct" is code for "relevant conduct," the system that allows a judge to consider all kinds of unproven information when imposing sentence. That makes it much easier to produce higher sentences. Sadly, it appears that a desire to maintain draconian sentences won out over some kind of uniformity and Sixth Amendment principle.

That's Creative Lawyering

I know the Ninth Circuit is renowned for its liberalness and willingness to stretch the law a bit, but I think even they may have a hard time swallowing an argument made by attorneys trying to save a condemned prisoner from execution. They argue that California's method of execution, lethal injection, infringes upon their client's First Amendment rights because the initial paralyzing drug prevents him from calling out or otherwise indicating whether he is in pain. I don't see this going anywhere, but I applaud creative lawyering in the name of side-stepping the death penalty.

What Do You Call a Lawyer With No Sense of Humor?

An asshole. Like the guy in Long Island who had two guys arrested for telling lawyer jokes while waiting in line at the courthouse. Granted, given that the comedians in question are members of Americans for Legal Reform, there may be some "history" between they and the offended barrister, but it doesn't help the profession's image to have somebody arrested for making jokes about us. Anyway, it seems like the only crime these guys committed was telling the same tired worn-out lawyer jokes that have been passed around for years. Come up with some new material, folks!

The Supremes Speak on the Guidelines - Finally

A wise man once sang: "There's a big difference between kneeling down and bending over." Since June of last year, a lot of us in the criminal defense community have been kneeling down, praying (figuratively, of course) for the Supreme Court to deliver some "blessed relief" from the harshness of the Federal Sentencing Guidelines. Unfortunately, it looks like we've been bent over instead.

The Supremes today handed down their decision in US v. Booker, in which they considered the applicability of Blakely v. Washington to the Federal Sentencing Guidelines. In one of the weirdest decisions I have seen, the Court first held that Blakely does apply to the Guidelines, but then turned around and basically eviscerated the effect of applying Blakely in the first place.

A little background first. Blakely, which I wrote about back in June, reinforced the holding of Apprendi that any fact that increases a defendant's statutory maximum sentence must be proven to a jury beyond reasonable doubt. The real shocker of Blakely was its definition of "statutory maximum" to include mandatory sentencing guideline ranges. That changed the long-held perception that Apprendi did not apply to the Federal Sentencing Guidelines. Blakely set the federal criminal practice on its ear, and the Supremes quickly picked two cases to hear to resolve the question of whether Blakely impacted federal practice. After months of waiting, the Court announced its ruling today.

First, a 5-4 majority held that Blakely applied to the Guidelines. The Court rejected the (IMHO fairly weak) arguments of the Government that tried to distinguish between the Guidelines and the state system struck down in Blakely. Therefore, the Sixth Amendment required that any fact increasing a statutory maximum sentence, including Guideline ranges, must be found by a jury. Most prognosticators figured that the Court would come to that conclusion.

However, a different 5-4 majority, did not require that district courts go forth and require juries to find facts to support each potential Guidelines sentence enhancement. Instead, the Court held that Congress would not have intended such a system because it would essentially do away with the "real conduct" (aka "relevant conduct") setup that was essential to the system. Instead, the Court simply excised from the relevant statute any requirement that district courts sentence defendants within a Guideline range. To put it simply, the Guidelines became merely advisory, rather than binding. Sentences can still be appealed, and will be reviewed under a not too well defined "reasonableness" standard.

In practical terms, I think we're back to 1983, before the Guidelines were created. Judges regain a significant amount of discretion in imposing sentences. The Guidelines must (Breyer's word) be consulted, but it's unclear how much influence they should have or whether the traditional Guidelines judicial factfinding will still take place. There is still some appellate review, potentially more than in the "good old days," but exactly how much is anybody's guess. In fact, after a first read of the decision, I think the new power brokers in federal sentencing will be the Circuit Courts of Appeals. If they tightly define "reasonableness" in terms of Guideline ranges, not much will change. On the other hand, if "reasonableness" means basically that district court's have free reign in sentencing as long as they justify it, things will be quite different.

On the whole, I don't see this as a great victory for defendants. The grand terms of Stevens's opinion, which elevates substantive rights over practical expediency, are pretty much gutted by Breyer's. I'm not sure how our district judges will take to their newly found discretion, but I'm not confident that the Fourth Circuit will allow the system to work in a way that's very beneficial to defendants.

What I fear is that a system similar to what exists now with supervised release revocation proceedings. Every federal prisoner is placed on supervised release, which is sort of like probation, after they are released from prison. If they violate the terms of that release, they go back to prison, sometimes for longer than their original sentence. There are Guidelines for supervised release revocations, but several Circuits, including the Fourth, long ago concluded that they are not binding on district courts when imposing sentence. As a result, at least in the SDWV, judges almost always impose a harsher sentence than the Guidelines recommend (but still within the statutory range). I can see the same thing happening with run-of-the-mill sentencings in a post-Booker world.

Seven months ago, I had high hopes that the system might actually be reformed in a way to make it more fair and just to all those who are exposed to it. Now I'm not so sure.

For more interesting discussion of Booker, there are lots of posts over on Sentencing Law and Policy (props to Prof Berman for being the clearinhouse for Blakely/Booker info) and this interesting one at The Volokh Conspiracy (I think I agree with Prosecutor, sadly).

Blow Monkeys of the World Unite

The Observer (from the UK) had a fascinating piece over the weekend about the global cocaine trade. It was written by a documentary filmmaker who spend a year and a half investigating the business aspects of the drug, from the streets of Britain to the jungles of South America. What's interesting is that he was a self-described supporter of the UK's war on drugs (hard drugs, at least) but he became a proponent of legalization by the time his work was over. His article should give pause to anyone who is convinced that the "war on drugs" is being won on any tangible level.

Happy (Belated) Anniversary to Me!

Yesterday marked the one-year anniversary of Infinity Ranch. I celebrated by taking the night off and watching my alma mater embarrass itself by losing to Marshall 59-55 in their annual basketball match up. Oh well.

Thanks to everyone (hell, anyone!) who's read the Ranch over the past year, commented, or contacted me.

Shot Down by the Supremes

My best hope yet of taking on the Supreme Court face to face got shot down today. You can read the Fourth Circuit's opinion in the case here (the dissent got it right, needless to say). We filed a petition for cert, which generated an order from the Court requiring the Solicitor General to respond. Normally the Court just denies the petition without seeking a response (at least in our cases). So I thought there might be a slim chance of actually getting some play in this case. No such luck, as it turned out.

A Twist on the Right to Die

Connecticut is making preparations for its first execution in 45 years, thanks to a confessed multiple murderer who says he wants to die. The guy has fired his public defenders and hired his own lawyer "to defend what he calls his right to die." Not surprisingly, his PDs have gone to the state supreme court arguing that the guy is out of his gourd and can't rationally make the decision to fire them. The way the guy frames the issue, as his right to die, makes me wonder how the right-wingers who so passionately advocate the death penalty and would rush to flip the switch in this guy's case would square that action with their opposition to allowing terminally ill non-murderers to exercise their own right to die? Would the Supreme Court, which has held the Constitution does not protect the right to die, step in to keep this guy from trying to exercise it? Surely a killer doesn't have more rights than a near-death cancer patient.

Protecting the People of Mississippi From Satire

Two regional library systems in Mississippi have refused to stock John Stewart's tongue-in-cheek best selling textbook, America (The Book). Apparently the good folks down there can't handle a page full of naked Supreme Court justices (just like Wal-Mart shoppers can't). That page made the book the "only book I've objected to so strongly that I wouldn't allow it to circulate," said one librarian with 40 years experience. I find that incredibly hard to believe. Maybe book distributors know they shouldn't send "hot" literature down there in the first place?

Talk Radio Payola - Who Knew?

USA Today, thanks to a Freedom of Information Act request, has a really funny / disturbing article today about a wonderful use of your tax dollars. It seems that Dubya's folks paid right-wing African American radio personality Armstrong Williams $240,000 to promote the "No Child Left Behind" program to the black community and other black broadcasters. This sort of payola may violate federal propaganda laws (who knew there was such a thing - how does Dubya's everyday bullshit get past this?) and an investigation is under way. As for Williams:

he understands that critics could find the arrangement unethical, but "I wanted to do it because it's something I believe in."

Yeah, it's always a little easier to do something you believe in when somebody gives you a quarter of a million dollars to do it, isn't it? Jackass.

An Interesting Take on Affirmative Action

One of the critiques of affirmative action programs, especially in education, is that they do more harm than good in the long run. The theory goes that by granting black students admission to schools or programs based on something other than merit, it reinforces stereotypes that blacks aren't capable of making it on their own. This "stigma" argument is well worn, but an upcoming law review article attempts to examine more concrete evidence of the problems of affirmative action programs.

Specifically, the author argues (using extensive statistical analysis) that law schools that give excess weight to race in their admissions policies set up many black students, who might not have made the cut without an affirmative action plan, to fail both academically and when it comes time to take the bar exam. This performance gap exists not only at the top tier law schools (Harvard, Yale, Cal, etc.), but trickles down the line all the way to the non-ABA accredited mail-order diploma mills. Vikram Amar lays out the theory in more detail over at Findlaw today, and will examine critiques of the results next week.

The Love You Take Is Equal to . . .

The response of the American government and population to the tsunami disaster in Asia may be having a beneficial unintended consequence. It seems that when you help people out in desperate need, they tend to like you a bit more. Therefore, some hearts in Muslim areas hit by the tidal waves are softening towards Americans. Will it completely restore our credibility in the eyes of Arab nations in the wake of the fiasco in Iraq? No, probably not. But it certainly won't hurt. To me, this exchange says it all:

The region also offers plenty to provoke American xenophobia: Earlier this week, CNN aired a photograph of an Indonesian man who was receiving a U.S. aid package — while wearing an Osama bin Laden T-shirt.

That, I think, is a very powerful image: we (in this case) really are there to help people in need, without regard to politics or religion.

How Did L&O Miss This One?

Andrea Yates, the Texas fruitcake (my mother hates that term) who drowned her five children in a bathtub a few years ago, had her convictions and sentences overturned by a state appellate court. It seems that during the trial, evidence was presented that an episode of Law and Order that aired shortly before the children were killed showed a woman drowning her kids and "getting away with it" by pleading insanity. Yates was an avid L&O watcher, so the implication was that she got the idea from the show and was somehow faking her mental problems.

Except it never happened. After trial, defense lawyers contacted Dick Wolf's people who revealed that no L&O had ever featured that story line. The appellate court, confronted with obviously false evidence (the state agreed), really had no choice but to reverse. Oddly enough, the "evidence" first came up during defense cross-examination of a state witness. The state then picked up on it and ran with it, but this was not a case of the state fabricating evidence to secure a conviction (as the CNN story implies). You can read the opinion for yourself here.

The real story for me, however, is that there is some idea/scenario/plot that L&O and its various spin-offs hasn't done yet!

Know Your Rights

Ever wondered if you have to answer questions asked to you by a police officer? Whether you have to let the cops search you car? Or your house? Or yourself? Never fear, the ACLU has you covered. Head on over to their website and download their "Bustcard." It's a quick synopsis of applicable citizen-police Constitutional law, handily boiled down on a card that fits in your wallet, purse, or glove compartment. Get yours today!

It Can't Be That Simple, Can It?

One of Dubya's supposed goals in his second term, and a holy grail of the right, is the "simplification" of the federal income tax. I was forced to take a tax law class in law school. The West-published paperback version of the Internal Revenue Code that I had to lug around all semester is rivaled in size and heft only by the West versions of the Federal Criminal Code and Rules and the U.S. Sentencing Guidelines. In other words, tax law really is hugely complex and "simplifying" it probably would not be easy.

But one columnist in USA Today today has an interesting proposal. He would eliminate the IRC as we know it and replace it with a three-section Code: first it declares that all income is taxed, second it defines income, and third is sets the rates. That's it - no exemptions, no write-offs, no loop holes. So such things as the mortgage interest exemption (which I just now qualify for, so hands off!) and deductions for charitable donations would be gone. It would certainly streamline things, but I can't see it happening anytime soon, for reasons set forth in the piece:

It would be tough on CPAs and tax lawyers and charities. The home-building and real estate industries, which depend on the mortgage deduction to fuel demand for ever-bigger houses, would take a hit. Wall Street, which depends on tax preferences to promote investing, would face a period of adjustment, as would many government agencies, which depend on tax-free bonds for capital projects.

I'm sorry, you just can't piss that many people off at one time and be successful.

A DeLayed Reaction Is Better Than None at All

Yesterday, House Republicans decided that maybe it wasn't such a hot idea to change their ethics rules just as they might actually have some negative consequences. The caucus approved a repeal of an amendment to the ethics rules that would have allowed those in leadership positions (read "Tom DeLay") to continue in those positions even after being indicted for a crime. This was due to the supposedly "partisan" investigation into DeLay's campaign finances that has already netted several indictments. One would hope that this change of heart was motivated by the GOP's desire to avoid looking hypocritical and opportunistic and ensuring that their leaders have not even the taint of impropriety. For once, principle might trump political expediency:

Jonathan Grella, a DeLay spokesman, said DeLay was “denying the Democrats their lone issue. Anything that could undermine our agenda needs to be nipped in the bud.”

Or not.

Hooray for Us!

Last week, ABC's World News Tonight named bloggers as (some of the) "People of the Year" for 2004. If there's a monetary payout (like with a Nobel Prize), I'll expect my very very small check in the mail promptly.

Calculus of Evil

Yesterday's New York Times Magazine had an interesting piece about a fairly revolutionary sentencing scheme that is at work in neighboring Virginia. For non-violent offenders, judges engage in a mathematical calculation to determine a defendant's propensity to commit another offense. Those that score low (good) can get probation or house arrest, while those that score high (bad) are consigned to prison. One problem with this system, as the article points out, is that one major factor in the calculus, sex (women generally reoffend at a lower rate than men), may make the whole system unconstitutional. In addition, it seems to punish the poor more harshly because it takes employment and housing factors into account. If a person's lack of employment contributes to their chances of reoffending, maybe we should focus on making sure they get a job. After all, no matter how evil they are, they'll get out of prison eventually.

Let the Blood Vetting Begin!

Today's New York Times has an article previewing the Senate confirmation hearing for Attorney General nominee Alberto Gonzales that begin Thursday. The general consensus is that Gonzales will be confirmed, with Democratic support, but that the confirmation process will be bloody enough to prevent him later being elevated to the Supreme Court. Which is appropriate, given Gonzales's role in telling Dubya how he could avoid such "quaint" legalities as the Geneva Conventions (or even the Constitution).

2004 - My Year in Film (Well, Video, Actually)

Going through my Netflix history for the past year, it shows that I've seen more than 60 movies since I joined in March. Damn, I've become quite the DVD slut, haven't I? Anyway, here are (in no particular order) five flicks I saw this year that really struck me in some way.

The Battle of Algiers (1965): I've already written pretty extensively about this documentary-style flick, so I won't say any more about it here.

The Barbarian Invasions (2003): This French-Canadian flick (yes, there are subtitles) is one of those films that manages to be incredibly depressing and uplifting at the same time. It tells the story of a crusty old American history professor (which makes for some interesting observations) who is fighting a losing battle with cancer. His estranged son returns to Canada from the UK and rescues his dad from the bureaucratic nightmare that is Canadian healthcare, greasing the wheels to get him a private room in a closed-off portion of an overcrowded hospital. He then gathers his father's old friends together, to revel in their lives together. The son also secures a supply of heroin, to ease his father's pain. As the inevitable approaches, the whole bunch moves to a secluded lakeside house for, essentially, last rights. It's a very poignant film, dealing directly impending death and dying with dignity, but leaves you with a more hopeful outlook than you might think because of the love that is shared by these people in the old man's final days.

Blood Simple (1984): One of the ways I fleshed out my queue at Netflix was by putting in films by my favorite directors that I hadn't seen yet, most of them from early in their careers. Without a doubt, the most impressive of those flicks was the Coen brothers' first film. It's a perfectly executed Southwest film noir - made me jump right off the couch at least twice. You can see some of the same ideas (namely, a "professional" crime that goes highly wrong) they later used in Fargo here.

Eternal Sunshine of the Spotless Mind (2004): This is popping up on a lot of "10 best" lists right now, with good reason. In the best tradition of real sci-fi, it uses a scientific idea (being able to erase your memories) to explore deeper issues of memory and human nature. There's some very funny stuff going on as those memories are being erased, but I think in the end it all comes down to this: can we exist as fully formed people if we lack memories, even painful ones, of what has already happened to us?

Ararat (2002): I wrote a little bit about this Atom Egoyan flick when I first saw it. It's not the best of his flicks (I'd give The Sweet Hereafter that honor), but it does deal with some very interesting issues of history and (again) memory. On the surface, it's the story of the making of a film chronicling the Armenian genocide committed by the Turks in 1915. But it really gets deeper than that and asks about the way history is remembered and how stories are told. Not only that, but equally important is how we listen to the stories of others and recognize the importance of those stories to them. The film really made me think, which is never a bad thing.

So that's it for 2004. On to 05 - Happy New Year, everybody!

An Assemblage of Stupid Crimes

I sometimes pass along a news story or two detailing stupid crimes and/or stupid criminals (they're not always the same thing). Now, the fine people over at CourtTV have collected a bunch of those stories from the past year in one place for your reading pleasure. My personal favorites involve a guy who called the police after he'd been shorted on a microwave-for-crack transaction and a woman who tried to shoplift a sizable marital aid from a shop after having just filled out an application for a job there.

Beware the Airbag Police

The New York Times has an interesting article today on a recent federal crackdown on folks who take the airbags out of their cars. The targets, at this point at least, tend to be high profile "car makeover" TV shows like MTV's Pimp My Ride. Apparently they sometimes replace the OEM steering wheel (with airbag) with an aftermarket piece that has a TV/LCD screen (WTF?!?!) in place of the airbag. It's against federal regs to take the airbag out of your car, so the shops that are doing these mods are being hit with fines of up to $16k. No one, apparently, is concerned about the TV screen directly in the face of the driver.

2004 - My Year in Tunes

As the year draws to an end, everyone is busy putting together their "best of" or "retrospective" lists for 2004. Who am I to buck that sort of trend? So here is a sampling of my favorites from my year in tunes.

New Releases in 2004

Marillion - Marbles: I definitely found my marbles this year - in addition to paying a pretty penny for the special two-disc edition of Marillion's latest opus, I also got to see the band live in Cleveland (on their first US tour in seven years) and rounded out the year with a copy of the two-disc Marbles on the Road concert DVD. I will admit that I wasn't overwhelmed by Marbles at first, and I still am not convinced that it is the the band's best work. Still, it has some bits and pieces that are classics and stand up to the best of the band's extensive repertoire ("The Invisible Man," "Fantastic Place," and "Ocean Cloud," particularly). I had hoped that some of the bits that didn't click for me on disc would work out better live, but only "Neverland" really got better (I still get no thrill from "Angelina"). More highs than lows overall, however. As long as the band continues to do what they want to do and properly exploit the marketing power of their fan base, they'll do just fine.

Mike Keneally - Dog and The Universe Will Provide: It was a busy year for Mikey. Dog was his first "band" album since 2000's Dancing, and the first for the current four-piece (sadly no longer named Beer for Dolphins) lineup. TUWP was the culmination of his collaboration with Holland's Metropole Orkest, an hour plus of music for guitar and orchestra. Dog hasn't gotten quite the fawning reception that some of his earlier albums have from the fan base, but I think it's brilliant, with one exception ("Gravity Grab" doesn't grab me, for whatever reason). It rocks, it grooves, it's clever, it's catchy - and that doesn't even take into account the weirdly wonderful collage that is "This Tastes Like a Hotel." What more can you ask in one album? TUWP is equally brilliant, but in a completely different way. Mike shows his skills as composer and arranger for a really large ensemble. It's modern, but not impenetrable. And it even rocks and grooves, too!

Tears for Fears - Everybody Likes a Happy Ending: I bought this largely on the reviews of those on various prog newsgroups (Spock's Beard and Keneally Band drummer Nick D'virgilio has been their touring drummer for years), but I'm very glad I did. It's shamelessly Beatles and XTC-influenced pop, but it's really really good at what it does (and it never gets too syrupy, as XTC can occasionally do). It's probably the best non-prog mainstream album I've bought in years.

IQ - Dark Matter: Solid neo-prog, as you'd expect from these guys. They don't break any new ground, but they do what they do very well. The epics hold up, and the shorter tunes show them indulging a few newer influences.

New-to-Me Releases in 2004

The Tangent - The Music That Died Alone (2003): Progdom has been rife with super groups for the past few years. Aside from the guilty pleasure of Transatlantic, I've steered clear of most of them. But I was drawn to this lower-key project, largely because of the involvement of Van der Graff Generator's David Jackson. VdGG's dark, brooding style and Jackson's stabbing sax lines wouldn't seem a direct fit with the kittens-and-sunshine outlook of Roine Stolt (the Flower King himself). The result it really quite good. While it's certainly derivative of what has gone before, the band seems aware of that fact and sounds like its paying homage, rather than trying to pass off something as "new." Jackson wasn't around for their second album, which I haven't heard yet.

Bubblemath - Such Fine Particles of the Universe (2002): I got this largely because of comparisons with As the World-era echolyn. I can see that, but Bubblemath seems much more consciously complicated and has a much more wide-ranging lyrical sensibility. When they hit on all cylinders ("TV Paid Off," "Doll Hammer," "Your Disease is Nicer"), they're really great. If something's off, however, it sounds contrived and forced. Still, it's really good more often than it's bad. Another group whose new album I'm looking forward to.

Peter Gabriel - Peter Gabriel (Car)(1977) and Peter Gabriel (Melt)(1980): Gabriel's music always seemed to work better live to me, with the forced interaction of live musicians. For a long time, the only studio album of his I owned was the fourth eponymous disc (Security), which seemed sterile and overproduced. But when Up came out in 2002, I really liked it and decided to explore his older stuff when I got the chance. So far I've picked up the first, Car, and third, Melt, of his early albums and I enjoy both a lot. Car, in particular, covers a lot of stylistic ground, which I always like. And Melt has "Games Without Frontiers," my personal favorite of his hits.

So, that's it. Maybe I'll cover movies/DVDs tomorrow.

Quake Magnitude

The enormity of the earthquake in the Pacific Ocean has understandably been expressed in the staggering death toll of the resulting tsunamis (80k, at last count, and surely rising). But consider this as an additional indication of how powerful it was - scientists speculate that the Earth may permanently rotate faster as a result. OK, so it's only 3 microseconds faster, but that's still pretty spectacular. The quake also may have tipped the planet on its axis by about an inch.

Click here for the many organizations seeking donations to aid the relief effort.

I'd Make a Shitty Marine

I finally settled down an watched Full Metal Jacket, Kubrick's Vietnam War flick, last night. If nothing else, it convinced me that I'd be a horrible Marine. The film is basically made up of a two not-entirely-related parts. The first part follows a group of fresh recruits through a hellish boot camp at Paris Island. What they go through convinces me that 1) I don't have the physique to be a Marine and 2) I don't think I could ever become a stone-cold killer. The fact that one recruit goes nuts and kills his drill sergeant (and himself) makes a lot of sense. The second half actually takes place in Vietnam, in and around Hue following the Tet Offensive, following two of the original recruits and a new bunch as they get deep down in "the shit" (combat). The combat scenes are pretty impressive, considering they were done in and around an old power station in Britain, rather than on location. And in the end, we find that even the best Marine recruit can't really be turned into a stone-cold killer. Yes, he does shoot and kill the wounded Vietnamese girl/sniper who killed his buddy. But he had to think about it. I think that means something.

Teaching Religion at History in Public Schools

Over at Findlaw, Vikram Amar has an interesting piece on a current school-teacher controversy in California. The teacher in question, who describes himself in legal pleadings as an "orthodox Christian" (which is presumably is different from an Eastern Orthodox Christian), wants to use selections from various American historical documents that mention God (Declaration of Independence, various state constitutions, writings of the Founding Fathers) in his elementary school class. The school has said no, on the grounds that the teacher is really going to preach rather than teach. The teacher sued, arguing that this treated violates his First Amendment rights. As Amar points out, that may not be a real issue anyway, as the school has every right to limit what teachers say in the classroom. The only real issue is whether the school is cracking down on this teacher in particular for mixing religion with his teaching, while allowing others to do the same.

Personally, I see nothing wrong with historical documents that mention God (or a Creator or whatever) in a history being used in (of all things) a history class. Examining those kinds of documents can be enlightening (even to fifth-graders) and I despise the censoring or redaction of historical documents used in such settings. But on the other hand, why is the teacher's religious preference relevant to the inquiry at all? The use of the docs should be the same regardless of whether the teacher is Christian, Hindu, or atheist. So why is it essential to make that fact prominently known in the complaint? To me, it says that there probably is an ulterior motive at work, that has more to do with saving souls than teaching history.

Fun With Primary Sources

Courts often deal with controversial items, but rarely do they put the whole thing in an opinion so the public at large can see exactly what the fuss is about. (On a related note, I hate it when courts censor statements made by defendants or witnesses by leaving letters out of words like "fuck" or "shit." C'mon, you're dooming some dweeb to years in prison, at least let his vulgarities survive unmolested!) Well, now you can, thanks to this site from the University of Minnesota Law School. It contains the objects of controversy in many famous First Amendment cases, including George Carlin's famous "7 Dirty Words" monologue (from the Pacifica case) and the infamous Hustler ad that caused Jerry Falwell some much-deserved mental anguish.

Strking a Blow for the Poor Lawyers

I spent about a year as a Legal Aid lawyer after I got out of law school before I made the lateral move to public defender. Legal Aid provides civil (as opposed to criminal) representation to poor folks. Most groups get their money from a federal agency called the Legal Services Corporation. I did family law (and related proceedings) for domestic violence victims, but other folks in my office represented people in landlord-tenant disputes, debt collection suits, and public benefits proceedings. Many of the more experienced folks pined for the good old days, when they (and other organizations) were able to represent a much larger group of people in more large scale "impact" litigation. But Republican restrictions of the 80s and 90s severely cut down on what LSC-funded groups could do. This week, a federal judge in New York City threw out part of those regulations, which required a group so have separate offices for its LSC and non-LSC funded programs. It's a small victory, but maybe it will lead to further rollbacks.

Talk About a White Christmas

Over the weekend, a small plane crashed near Wheeling (in the northern panhandle, call it Pennsylvania). No pilot was found in the wreckage, but his cargo was: 520 pounds of cocaine. Authorities, quite understandably, were searching for the pilot to "question" him. I bet. That much coke absolutely blasts a hole right through the top of the Sentencing Guidelines Table. Somewhere, someone is looking for a last minute Xmas gift substitution.

Sports Labor Unrest - In American Soccer?!?

Yes, it appears that the sport of soccer has finally hit the big time in the United States. The evidence? The U.S. Soccer Federation is engaged in a long-running dispute with the U.S. Soccer Players Association, a union that includes anyone who has ever suited up for the men's national team. The players have been playing without a collective bargaining agreement since 2002. Things came to a head this month when players refused to show for a training camp, forcing the USSF to cancel two friendlies in January. Looming in the distance is the first game of the last round of World Cup qualifying, in Trinidad and Tobago in February. If something isn't worked out soon, the USSF threatens to send a team of "replacement" players to TnT.

I tend to agree with Galarcep that the USSF may view this as the best time to make a stand, with our first two qualifies likely to only earn us 1 point (the second is away to Mexico, where we've never won a match) and that the use of a scab team therefore wouldn't hurt so much. That being said, I'd hate to see the USSF and the players piss away a lot of what has been built up in this country in the past few years around the game of soccer. Get this nonsense settled before any World Cup stuff is affected.

And, just for the record, as an uncapped USSF registered goalkeeper, I will not cross a picket line to wear the colors. Try and contain your disappointment.

Here Come the Right Wingers!

As we prepare for a new Congress and second Dubya administration, right-wing Republicans are readying to push through many pet pieces of legislation in the new year. Buoyed by their "mandate" from the election, conservative Republicans are even targeting issues on which they disagree with Dubya, like rolling back campaign finance reform (which is probably not that bad of an idea, anyway). My problem is exactly where do they think this "mandate" came from? Yes Dubya rode a wave of "values" (as defined by the GOP) voters to reelection, but further review of the election break-down shows that they weren't as overwhelming a presence as they make themselves out to be. And even if they constitute a larger chunk of Dubya's supporters than they are, that whole group still only adds up to a slim majority. The nation, unlike states in the electoral college, is not a winner-take-all proposition.

Gran and Gramps Get Ready to Roll a Doob

In one of the weirdest poll results I've seen in a while, an AARP survey found that a majority of older Americans support the use of medical marijuana. Nearly 75% support legalization for that purpose, as a matter of fact. Oddly enough, 69 percent of those over 70 support the idea, even though less than 50% believe that pot has medicinal benefits. I wonder what goes on in those old folks condos down in Florida?

Livin' In a Hellhole

According to one of those national "tort reform" groups, the entire state of West Virginia is a "judicial hellhole." Apparently because the courts here don't let big business run over the little people quite as often as they do elsewhere. And how is the fact that two class-action suits were filed in Roane County last year contribute to the hellhole (there's no discussion of the actual merits involved)?

Anyway, this post is mostly an excuse to use a line from a Spinal Tap classic as a subject line. :)

Star Wars Won't Work

Dubya's vaunted missile defense system had yet another test yesterday over the skies of Alaska. Guess what? It didn't work. Again. As one critic puts it, the system "has no demonstrated capability to work," yet we continue to pump money into the damn thing. Of course, in this administration, lack of demonstrable success has never slowed down "progress." Hell, Dubya probably thinks it worked!

Talk About Wearing Your God On Your Sleeve

From Alabama, the land that brought you a Supreme Court Chief Justice who couldn't pass a ConLaw I final and recently voted against taking segregation language out of the state constitution, comes a new low in the church/state debate. A trial-level judge in Covington County came to the bench yesterday wearing a robe in which the 10 Commandments were embroidered. The president of a Montgomery-based atheist organization seemed to capture what was going on:

You've got to be kidding me . . . I think he's making a mockery of his office, the judicial system and the religion clauses of the U.S. Constitution. It's unbelievable and absurd.

Indeed it is.

The Battle of Algiers

I spent a good portion of the weekend in front of the tube digesting the new 3-disc version of The Battle of Algiers. It tells the story of one portion of the Algierian revolt, spurred by the FLN, against colonial French rule after World War II (after they handed Vietnam off to us, they proceeded to fuck up northern Africa) that took place in the mid 1950s in the capital city of Algiers. The film, originally released in 1965, was ground breaking for a couple of reasons. First, it was shot completely on location in Algiers in a documentary style that influenced many films to come. Second, it created such an accurate portrayal of urban guerilla warfare, including terrorist and counter-terrorism, that it has used in the forty years since its release as instruction for both sides. Most recently, the film was screened for top brass at the Pentagon to see if any lessons learned from it can be applied in Iraq.

Criterion, as usual, did a superb job with the new DVD release. Disc 1 contains the movie itself, beautifully restored with easily read subtitles (the film is technically Italian, due to the director, but the dialogue is all in French and Arabic). Disc 2 examines the film's place in cinema history, including an in-depth "making of" documentary. Among other things, it tells you that the film was partially produced and was the brainchild of one of the leaders of the FLN, who was looking for a director to tell the story of his glorious revolution. It was largely because of his status (he played himself in the film, too) that the film was able to be made in Algiers itself, including the labyrinthine Casbah, where the FLN hid out from the French.

Disc 3 goes into the actual history and relevance of the film today, and provides some very interesting stuff. Most topical is a brief (25-minute) discussion with two terrorist/intelligence experts (Richard Clarke was one) about what it can teach about similar situations today. It basically boils down to the fact that military victory, once achieved, means little without a coherent political strategy that recognizes the long term outlook and goals of the other side (the French won the battle, but, literally, lost the war because the FLN just kept popping up).

Another terribly relevant extra is a documentary about the director's return to Algeria in 1992, about 30 years after he made the film. In the interim, the country had seen at least three governments (the president was assassinated shortly after giving an interview for the doc) and was the thrall of a rising tide of Islamic radicalism. The strident nature of those fundamentalists, and their attitudes towards Westerners -- all Westerners -- sounds a lot like the Middle East today. Given the time this piece was made, the director made an interesting observation about the first Gulf War. While most people in the region had no use for Saddam Hussein and condemned his invasion of Kuwait, many of them still rallied around Saddam once the West got involved. Not because they loved him, but because they saw the West's involvement as another in a long line of colonial and post-colonial interventions that have left the region so unstable. It's no surprise, then, that many in the region reacted in exactly the same way when the US invaded Iraq.

The other really interesting extra is a documentary that goes into the actual history of the Algerian revolution and the Battle of Algiers. It covers many things that are in the film, but most importantly covers what the film leaves out. The movie is frequently lauded for being "balanced" in its presentation of the situation. The French, while dominating colonialists, are not the two-dimensional thugs they would be in many (OK, American) films. The portrayal of the FLN, while focusing on the legitimate gripes of the Algerian people, does not gloss over the terrorist tactics used in their name. However, on balance, the French come out the worse, as there is never any real justification given by them for why they are in Algeria in the first place or why they'd fight to remain. Most importantly, it's the French (albeit unofficially) who being the bombing campaign, destroying several buildings the Casbah in retaliation for FLN attacks on police and army targets. The FLN's bombing campaign only begins from there.

The historical record seems to contradict, or at least complicate, that portrait. Outside of Algiers, the FLN was already well underway as a terrorist organization. In addition to massacreing French settlers in the countryside, there were violent purges of their Algerian political rivals as well. All that shows is that, while the FLN may not have started the attacks on civilians in Algiers, they didn't have to be pushed very far before they did.

One interesting thing is the French attitude towards torture during this time. There is absolutely no attempt by French commanders after the fact to hide the truth that French soldiers routinely tortured captured Algerians (many of whom had nothing to do with the FLN). One bonus feature even includes interview footage with the guy who was in charge of, in essence, making prisoners "disapear." In a way, this seems easier to accept that the US, "what, us, torture?" attitude in Iraq. The French, far from being the petite pussies of popular legend, pretty much stand up and say "we did what we had to do and aren't sorry for it." Of course, it didn't really work in the end.

But in the end, The Battle of Algiers is about more than that. It very dramatically emphasizes that the deaths of innocent civilians, whether French or Algerian (and, by extension, American or Iraqi), are equally tragic. It also demonstrates that inherent dangers of being an occupied force. The French no doubt believed they were doing the right thing in Algeria, at least at some point. They also, no doubt, stayed longer than they should and dug their heals in simply so as not to be pushed out. The powers that be in the US should learn from that lesson.

Christmas Can Kill You

In the brilliant Futurama, Christmas has been (1000 years in the future) replaced by Xmas, and Santa Claus replaced by a homicidal robot who punishes the naughty (which includes just about everybody). The point of the holiday, therefore, is simply to survive. We may be closer to that than we first thought. A new study finds that more Americans die on Christmas Day than on any other day during the year. But that just includes natural illness (stress-induced heart attacks, primarily) and not "violent" deaths like suicide or homicide. I'm not sure if including those would help or hurt the Xmas mortality rate.

This Is What Happens When You Give the Ref the Finger

Celebration can be dangerous. Just ask Paulo Diogo, midfielder for Swiss soccer club Servette. After assisting on his team's third goal of the day, Paulo jumped up on a fence in front of the team's fans to celebrate. Paulo the newlywed failed to notice, however, that his wedding band got caught up on the fence. Until he jumped off. And the finger didn't come with him. While people searched for Paulo's severed finger (which could not be reattached), the referee expressed his displeasure with the whole situation by issuing Paulo a yellow card - for excessive celebration. Ouch.

Becks Goes Down (Again)

You try and put together a nice pop-culture nativity scene and what thanks to you get? People go gunning for Joseph. At least, that's what happened with Madame Tussaud's wax museum in London. The Joseph in question, England / Real Madrid midfielder David Beckham, was toppled, along with Mrs. Beckham (aka Mary), by a protestor. No word on whether the attacker was clad in Barcelona colors. The display has caused a lot of furor in Britain, although for the wrong reason. How can anyone honestly put Dubya in as one of the three wise men?!?

Trust the Real Lawyers

Anyone who has spent any amount of time practicing criminal law is familiar with the jailhouse lawyer. People in prison (or in jail awaiting trial) have little to do, so many of them dive into the law library with great abandon. Some actually learn a good deal about criminal law and are valuable quasi-lawyers inside the facility (my boss at my old job told me he knew a guy in prison who was good enough that he'd hire him as a paralegal, if he ever got out). Most of the time, however, the jailhouse lawyers know just enough about the law to be dangerous, to themselves or, in some cases, to their fellow inmates. As in Tennessee, where a guy nicknamed "T-Flake" turned down a plea bargain that would have netted him a 210-month (17.5 years) federal prison term, on the advice of jailhouse counsel. Bad idea. He went to trial, lost, and ended up with a 480-month (40 years!) sentence for his trouble.

The moral of this story? Listen to the real lawyers. That's why we have the diplomas on the wall.

Dumb All Over

I thought coming to the courthouse with your weed in order to bail out your buddy was the dumbest crook story of the year. Ah, no, leave it to the young and stupid in Florida, where a teenage couple called police to report a robbery. It seems their home was broken into and some valuable property taken. What property, you ask? Their pot, of course. And this wasn't just their property, it was their livelihood -- they told police they needed the pot back so they could sell it. Not surprisingly, they face pot distribution charges.

Talk About Justice Delayed

A special court in Washington state is readying to examine the guilt of a Native American put to death almost 150 years ago. Chief Leshci was executed after being convicted for murdering a soldier during the 1855 Indian War. If that sounds a bit off, it is - for one thing, you're supposed to kill the other side during a war (the Army refused to carry out the sentence following his conviction). But aside from procedural issues, there is also serious doubt that Leschi even killed the soldier in the first place. So the Chief Justice of the state supreme court is convening a "Historical Court of Justice" to try and determine Leschi's guilt once and for all.

On the one hand, I really admire the state for going through the trouble of rectifying an historical wrong and seeking the truth for truth's sake. But on the other, this is going to take time and money that might be better directed towards exonerating living people who have been wrongfully convicted or subjected to some heinous punishment. Leave the rehabilitation of the dead to the historians.

Naptster . . . Good?!

In what should come as a surprise to nobody, the first extensive poll of musicians about music and the Internet shows that they have a very different view of things than their corporate handlers. While a slim plurality thought that peer-to-peer file sharing systems keep artists from getting royalties, an overwhelming majority said that file sharing did not pose a threat to their commercial futures. And only 3% felt file sharing was hurting their control of their creative works (maybe because, in many cases, the artists don't control them anyway). So it appears that the RIAA's jihad against file swappers, done supposedly for the benefits of the artists, isn't really wanted by the artists in the first place.

Now That's Election Fraud!

Remember in 2000 when our quaint idea of election fraud was a confusing ballot that turned Florida into the home of Jews for Buchanan? Check out this list of observed horribles from the recent presidential election in the Ukraine:

Pens filled with disappearing ink. Hospital patients forced to vote in exchange for treatment. Students ordered to show their ballots to professors. Election observers say these were among tricks used to manipulate Ukraine's presidential runoff election.

Say what you want about these young ex-Soviet Bloc democracies, they know how to intimidate the electorate.

Litterary Gaydar

Fresh from victory in the November election, one of those "values" people in Alabama is gearing up for his next big trick: banning "gay books" from the state of Alabama. A state representative is proposing a bill that would block state funds from being used for "the purchase of textbooks or library materials that recognize or promote homosexuality as an acceptable lifestyle." When asked about what was to be done with the fairly large stash of gay literature that currently resides in Alabama, he said "I guess we dig a big hole and dump them in and bury them." Which makes a Southern Poverty Law Center spokesman's statement about right: "It sounds like Nazi book burning to me." But, what else would you expect from a state that voted against removing school segregation language from the state constitution?

Can He Conjure Up a Defense?

An interesting development in the case of a man who killed six and wounded two in a hunting massacre last week. The defendant, an Hmong immigrant originally from Laos, is "a shaman who has called on the spirit world in trances that last up to three hours," according to those who know him. A hunting buddy said that, "Chai speaks to the other side. He asks the spirits there to release people who are suffering on earth." O.K. Wonder if he might cross over and apologize to the guys he gunned down?

Medical Marijuana Post Mortem

As I mentioned Monday, the Supreme Court heard a major case this week dealing, at least on the surface, with the issue of medical marijuana. From all the accounts I've read (except for one by an involved party), it did not go particularly well for the pot users. Over at Slate, Dahlia Lithwick provides her typically warped view of the proceedings. It seems to track what I've read elsewhere. Meanwhile, over at National Review Online, Jonathan Adler cuts through the surface pot veneer and gets down to the real issue (as I said the other day):

Despite its apparent importance to drug warriors, Ashcroft v. Raich is not about medical marijuana or drug prohibition. Nor is it about the wisdom, or lack thereof, of allowing chronically ill individuals to smoke weed for medicinal purposes. Rather, it concerns the limits of federal power under the Constitution. Federalism does not play favorites. It limits the scope of federal power to pursue liberal and conservative ends alike. If a majority of the Court remembers this lesson, Angel Raich will get to keep her medicine. More important, the nation will keep the constitutional limits on federal power.

Will the Court bite the bullet and follow through on its own precedents and not follow the anti-drug path? We'll see next summer.

More Hard Truth in Sentencing

Last week I mentioned a series from the Milwaukee Journal Sentinel about the effects of Wisconsin's "truth in sentencing" law. The excellent series concludes today with articles about restorative justice and the difficulty inmates have in making it back into the outside world.

Takin' a Hit With the Supremes

Today the Supreme Court heard oral arguments in a case that has been misleadingly reported as being about the fate of the medical marijuana laws in some states. While medical marijuana is the issue, the case does not deal with the issue that broadly. Instead, the issue is really narrow: whether the intrastate production and possession of a controlled substance (marijuana, in this case) can be regulated by the Federal government. The logical extension of the Court's recent federalism cases would seem to say "no." However, it's doubtful that the Court, even the true conservatives on the Court, will follow their own logic that far. It will be interesting to see exactly what tomorrow's reports from the arguments have to say. Meanwhile, Reason has an interesting article wondering if the Court will go as far down the "states rights" road as it could.

Pay Attention to the Ukraine

I'll be honest -- the most attention I ever pay to events in the Ukraine is tracking Dynamo Kiev's progress through the Champions League. But the recent events surrounding the presidential election there bear some scrutiny. As this article from the European version of Time discusses, the outcome it much more important that just who runs a borderline third-world ex-Communist state. There is a rift between those who favor a more Western economy and society and those who favor a more authoritarian setup and close ties with Russia. The who situation may impact our relations with Putin's Russian, which could have ripple effects for years to come.

Supreme Court Term Limits?

As the Supreme Court dives into the medical marijuana debate, a new poll shows that majority of Americans support doing away with life tenure for the justices. Specifically, 60% of those surveyed support a mandatory retirement age for justices. Of course, approximately the same number of people couldn’t identify Rehnquist’s job, so I’m not sure this was the most informed group of citizens to poll.

On a similar note, I’ve come across a recent law review article that discusses an alternative – staggered non-renewable 18-year terms that would allow for two appointments during every presidential term. That might not be such a bad idea. It would still keep the justices isolated from the political pressure to get reappointed, but would build in a natural turn over that would keep fresh ideas on the bench and, through their sheer number, probably lessen the partisan pitched battles over confirmations.

Another Check in the Bank (Part One)

I wasn't really planning on writing anything over the Thanksgiving break, but I couldn't pass this one up. Some of the kids who sang backup on Pink Floyd's "Another Brick in the Wall (Part Two)" from The Wall are suing the band for unpaid royalties. The band paid the school 1000 pounds and gave them a copy of the platinum record for the single, but the kids themsleves apparently saw none of that cash. I wonder if a big judgment/settlement will coax the current version of the band to hit the road again to raise some cash?

BTW, CNN.com folks - you might wanna use a band picture with Roger Waters in it, since The Wall was basically his baby.

Landon Moves On

The worst-kept secret in this brief history of MLS was confirmed today: the league's posterboy, Landon Donovan, will return to German club Bayer Leverkusen. Leverkusen could definitely use his skill, as the team sits 11th (of 18) in the Bundesliga. There will be a lot of debate about whether Donovan should make the move or remain in the US and help grow MLS. To be honest, he's pretty much done it all in the States: he led San Jose to two MLS Cups, was a multi-time All-Star, and has become a major player for the US national team. Going to Germany can only improve his game and further elevate the status of MLS in Europe.

History Can Be Complicated

Today's New York Times has an interesting article about a new biography of Oskar Schindler that paints a decidedly more complex portrait of the man than Spielberg's film. Not that it makes the thrust of Schindler's List any less valid - in fact it seems to make his actions even more amazing. It's just a good example of how complicated historical figures can be and how even the best Hollywood treatment of them seldom gets beyond the surface.

The North Will Rise Again!

In the wake of Dubya's reelection, many despondent Dems have made noise about moving to the Great White North. Let's take it one step further -- how about secession? Amusingly enough, Findlaw's Michael Dorf uses that far-fetched possibility to examine the question of whether the Constitution actually allows states to secede from the Union, either unilaterally or with the agreement of the other states. The unilateral option was pretty well shot down (literally) by the Civil War and subsequent Supreme Court cases. The by consent plan might just work, however.

What Mandate?

Dubya's handlers were quick to pounce on his popular vote win as a "mandate" for his agenda in a second term. Dubya has even talked of spending the "political capital" he earned as a result. But a new CBS/New York Times poll shows that the country may not be as enamored of Dubya's ideas as he likes to think. Tax cuts? No thanks, say 2/3rds of Americans (including 51% of Republicans), we'd prefer reducing the deficit. More findings:

Across the board, the poll suggested that the outcome of the election reflected a determination by Americans that they trusted Mr. Bush more to protect them against future terrorist attacks - and that they liked him more than Mr. Kerry - rather than any kind of broad affirmation of his policies.

On the other hand, the poll seems to reinforce the "value voters" theory, as, for example, a vast majority of Kerry supporters a wary of the influence of religion in politics, while an equally large number of Bush supporters want more religious influence in politics. It's gonna be a long four years, I fear.

Interesting Trial Strategy

I have not been following the Scott Peterson trial very closely (sorry, I had real lawyering to do), so I missed the news that Peterson attorney Mark Garagos is alleged to have set up a display of the type of boat Peterson owned a few blocks from the courthouse. This was, supposedly, a ploy to influence the (sequestered) jury and prove that Peterson couldn't have tossed his dead wife overboard without tipping the tiny boat over. If true, that's an odd bit of trial strategy. Findlaw's Julie Hilden examines this puzzling issue in more detail today.

Fun With Democracy

Who says voting has to be a solemn occasion? Next time, why not write in a famous athlete or fictional character as your candidate for some elective office. As fun as it sounds, some officials in Wisconsin are not amused at the number of silly write-in votes cast in the presidential election:

Mickey Mouse and Donald Duck repeatedly rank among Wisconsin's favorite write-in candidates, but Brett Favre, Elvis and JFK also pulled in a few votes for a variety of offices on Nov. 2.

Those who count votes are forced to take note of every written in vote, which slows down the process considerably. They are seeking a change in state law to require write-in candidates to register prior to the election and only those who write in other folks would have their votes discarded.

Personally, I find the idea of Beavis as president somewhat appealing. Imagine President Beavis/Cornholio dealing with bin Laden: "Are you threatening me? You will feel the wrath of my bunghole!!"

Holy Cheese, Part III

A final (hopefully) update on the holy grilled cheese sandwich that was auctioned on eBay. It finally sold for $28,000 -- bought by an online casino, GoldenPalace.com. In a similar vein, I have a dust bunny that resembles Buddha -- the bidding starts at 10 grand.

Truth (In Sentencing) Hurts

One of the buzz-phrases of sentencing reform in past decades was "truth in sentencing." Quickly translated, advocates of truth in sentencing wanted to do away with seemingly long sentences that were cut short after the fact, largely by parole or good-time reductions. Judges would announce one sentence, then the defendant would only serve half (or less) of that time before being released. Truth in sentencing was a major motivator behind the 1984 Sentencing Reform Act that spawned the U.S. Sentencing Guidelines.

This week, the Milwaukee Journal Sentinel is examining the impact of Wisconsin's truth in sentencing reforms that took place in 1999. Wisconsin's version is one of the harshest in the country, doing away with both parole and good-time credits (the federal system maintains good-time, at least) and requiring long terms of post-release supervision. Not surprisingly, the state's corrections system was unprepared for the swelling of the prison population that followed passage of the 1999 law. In part one of the Journal Sentinel piece, they examine the general mess that exists now in the wake of the reforms. In part two, they deal with one specific issue that's becoming increasingly problematic - what to do with older inmates who are ill and/or dying. Parts three and four are due next week.

Over at Sentencing Law and Policy, Prof Berman has links to many other articles that are part of this special examination.

Lawyers for Jesus

Today's New York Times has an interesting article about the first group of students to go through Liberty School of Law, which is part of Jerry Falwell's Liberty University. Not surprisingly, the classes don't sound a lot like the godless ones I was subjected to at WVU. I wonder how far "faith" can get you on exams or in moot courts at a school that veers away from "extreme rationalism?" Thankfully, Liberty is not ABA accredited.

Isn't being "extremely rational" a good thing, especially for a lawyer?

The Sentencing Commission (Finally) Notices Blakely

After many months of conspicuous near-silence, the U.S. Sentencing Commission spent two days this week in hearings about the future of the Guidelines in a post-Blakely world. It sounds like the Commission heard a bit of well-reasoned testimony and ideas for what might happen next. Hopefully, it will dance right past the flawed DOJ "topless" solution and make some fundamental changes in federal sentencing. One correction to that article, however - Judge Cassell's decision from Utah yesterday didn't deal with a Guideline sentence, but rather with what many people see as the worst-case scenario post-Blakely, mandatory minimums.

Revealing the Revealed Word?

One of my favorite head scratchers about fundamentalist Christians -- those who believe that the Bible is the actual word of God -- is how they come to that conclusion when the version they most often rely upon is an English translation of works originally written in Hebrew and Greek. As a prof of mine in college put it, they seem to think that King James wrote the Bible. So I'm always interested when people come out with new translations. One scholar has put together a new 1000+ page version of the Pentateuch (the first five books of the Bible) that he claims sticks more closely to the original Hebrew texts. It makes for some interesting changes.

Bidding Resumes for the Holy Cheese

The other day, I mentioned that eBay pulled the plug on an acution of a 10-year old grilled cheese sandwich that contains the visage of the Virgin Mary. Apparently, eBay relented and put the auction back on the site, after determining that it was not, in fact, a joke. The current owner "wanted to share it with the world" after she realized "how unique it is." It seems that "share" in her native tongue means to sell something for thousands of dollars. Interesting.

Judge Cassell Can’t Quite Do the Right Thing

In Utah yesterday, a federal judge handed down a sentence in a closely watched case that may portend bad things for post-Blakely federal sentencing. The defendant was convicted of several marijuana distributions, which would generally net him a sentence of about 6 and a half years. In addition, he was convicted of three “924(c)” charges for “carrying” a gun during some of those sales. In one instance, the Government’s buyer saw the gun in the defendant’s car. In another, the defendant showed the buyer the gun while it was in an ankle holster. The third conviction came from the fact that when police searched the defendant’s home they found a few more guns along with a stash of pot.

924(c) convictions carry minimum maximum penalties, which district courts have no discretion to ignore. A first conviction gets you 5 years, the second and third an additional 25 years each. The defendant’s three convictions in this case required the judge to impose a sentence of 55 years, above and beyond the time for the drugs. The result would leave the defendant in prison until at least his 70^th birthday.

Judge Cassell was obviously bothered by this and requested briefing on whether he had any option other than impose such a draconian sentence. The defendant argued that he did, because 924(c) violates his due process rights and amounts to cruel and unusual punishment in his case. Cassell, in a lengthy opinion you can read here, pointed out how very irrational it was to impose a harsher sentence on this young man, who never used the gun in anyway, than he was allowed to impose on murders, rapists, and terrorists. This is particularly true when you consider that the only reason he committed the second and third offenses was that the Government didn’t arrest him after the first buy.

He then pretty convincingly set out that such a long sentence would, indeed, be cruel and unusual. Then, somewhat surprisingly, he decided he was bound by earlier Supreme Court precedent (which may or may not be good law any more) and bound to impose the 55 year term. To mitigate things somewhat, he gave the defendant only a 1 day sentence on the drug charges.

Having read the opinion, I am surprised that Cassell didn’t go ahead and find the 924(c) sentenced unconstitutional. He was one of the first district court judges to apply Blakely to the Sentencing Guidelines, rejecting the Government argument that prior Supreme Court precedent resolved the issue differently. So why get cold feet now? Might this impact the pending Supreme Court post-Blakely cases? Expansion of these kinds of mandatory minimums are the nightmare scenario some are preaching of the Court knocks the Guidelines down.

Snitches On Flame

The man who attempted (rather unsuccessfully, apparently) to set himself on fire outside the White House yesterday turns out to be an FBI snitch. The man was apparently “unhappy” with the way he had been treated by the FBI. A vast understatement, I would say.

Mmmm, 10-Year Old Holy Cheese

How much would you pay for a 10-year old grilled cheese sandwich? What if the sandwich contained an image of the Virgin Mary? Apparently, you’d need upwards of $20,000 on eBay. The decade-old delicacy was put on eBay by a Miami jewelry designer, who insisted that the whole thing was completely serious. It must be – said sandwich resided on her nightstand for 10 years! eBay said the item was removed due to its policy against allowing listings that are intended as jokes. On a related note, I once saw a version of The Last Supper done entirely on toast!

One Final Trip – On the Express

Those of you who have been to Morgantown, the home of my alma mater WVU, are familiar with the PRT system. The PRT is an unmanned monorail-type system that ties together the older downtown campus and the newer Evansdale campus. I could never quite figure why it completely bypassed the law school, though – ‘suppose they didn’t like us? Anyway, Samy E.G. Elias, who designed and oversaw the building of the system, passed away this weekend. While the PRT didn’t serve as the prototype that many people hoped it would, it is a very efficient means of mass transit for a small university town. Elias’s legacy will certainly live on.

Attention Charm City Music Lovers

A friend of mine has started his own chamber orchestra (how friggin' cool is that?) and is readying for its debut performance. If you're in the Baltimore area this weekend, check out the premiere of the Baltimore Sinfonietta, performing the works of Ives, Copland, and Barber. Show time is 3pm Saturday at St. Mark's Lutheran Church at 1900 St. Paul Street. Tix are $15, $12 for students.

Less Death Is a Good Thing

As I've written before (don't have time to find the link, sorry), it would be interesting if the death penalty simply fell into disuse as juries declined to impose it. It's a ways off, but a Justice Department report released yesterday shows that juries imposed the ultimate punishment less last year than any year since 1973. That's a welcome trend.

Mechanized Pitch Invasion

Fans have many ways of showing their anger over bad refereeing - screaming, throwing things, rioting, etc. But trying to run-over the ref while he's still on the field is a new one on me. To be fair, it wasn't a fan of Moldovan soccer club Roso Floreni who drove onto the pitch in pursuit of the offending ref, it was the team's chairman. After a controversial penalty was called against his team in the late stages of a 1-1 match, the chairman got in his car, drove onto the pitch, and chased the ref who, to his credit, managed to dodge the mechanical onslaught. Either he's the fittest ref in football or the chairman is the worst driver in Moldova.

Back On Top!

After many seasons in the wilderness, DC United regained its proper place on top of the MLS heap yesterday by defeating Kansas City 3-2 in MLS Cup 04. That's four total championships for United, if anybody needs refreshed, far and away the most in MLS's 9-year history. That's right - the dynasty is reborn!

Dog Day Afternoon

Yesterday, the Supreme Court heard oral argument in a case about sniffing dogs. Specifically, the issue is whether a police officer with his drug sniffing dog can walk around a person's car snorting for drugs during a routine traffic stop. The defendant in yesterday's case was pulled over in Illinois for doing 71 in a 65 zone (ouch!). While the cop who pulled him over wrote a warning, another cop (after hearing about the pull-over on the radio) went to the scene with his drug dug, who alerted to the trunk. Sure enough, the guy was carrying pot (12 years worth, apparently). Dahlia Lithwick amusingly recounts the argument yesterday, pointing out the dog or cat personae of the participants. From what I've read of the briefs (I haven't made it to the Underdog, Scooby Doo, McGruff amicus brief yet - written by Harvey Birdman, presumably), the dogs will indeed have their day.

Roe Does Not Undermine Democracy

A column over at National Review Online opines that, in the wake of Arlen Spector's warning to Dubya about right wing judges on the federal bench, Roe v. Wade isn't really about abortion but is, instead, about democracy being undermined by Supreme Court justices. This is, of course, a favorite rallying cry of the right (as long as their not running to court to overturn a popular initiative Jesus wouldn't like), but is just not true, at least in Roe's case. While a compelling argument can be made that the Court simply got Roe (and its predecessors) wrong, that doesn't equate undermining the democratic process. The Court is called upon to interpret the Constitution, which constrains not only what the government can do but also what the people en masse can do. No amount of popular support can strip women of the right to vote or reestablish legal slavery in the United States, without amending the Constitution, of course. The fact that the document itself doesn't mention the word "abortion" is hardly dispositive, as well. The Fourth Amendment doesn't mention dogs or cars, yet the Court today heard oral arguments about whether a drug-dog sniff done during an otherwise routine traffic stop implicates the Fourth Amendment.

I would have some more respect for this argument if the right practiced what it preached about the courts and the will of the people. When Oregon legalized physician-assisted suicide and California (and other states) legalized medical marijuana, it was the right wingers (including the Ashcroft Justice Department) who turned to the courts to smack down the will of the people. What's good for the goose is good for the gander - live by the popular vote and die by it as well.

One more thing: as the weeks leading up to the election last Tuesday showed, this country is not a "democracy" in which the will of a majority translates directly into state action. The United States is a republic, with a complicated system designed to dull the will of the people before it does any serious damage. And it works, for the most part.

In Pursuit of Cheap Booze

Over at Slate, Dahlia Lithwick discusses an interesting case the Supreme Court heard yesterday that came out of the Fourth Circuit. The defendants in Pasquantino v. United States were convicted of wire fraud for using telephones to run a scheme to smuggle cheap booze into Canada. Apparently the tax rates on hooch in the Great White North are outrageous enough to make smuggling the stuff from the U.S. a profitable venture. A panel of the Fourth Circuit reversed their convictions because of the "common law revenue rule," which says that one nation's courts will not enforce the tax judgments or laws of another country. The idea is that tax laws are so bound up in nation-specific policy choices and are so complex that for a U.S. court to properly interpret or apply Canadian tax laws would be improper and impossible. Let the Canadians prosecute the smugglers.

Makes some sense, right? Well, the full Fourth Circuit reheard the case en banc and came to the opposite conclusion. The Government, in prosecuting the defendants, is not seeking to enforce Canadian tax laws, but only the use of wires in the United States to accomplish the smuggling scheme. So the revenue rule isn't implicated. According to Dahlia, the Supremes didn't seem to be buying that argument, particularly since the defendants' sentences were determined based on the amount of tax loss (to the Canadian government) caused by the scheme. Determining that amount would seem to require some application of Canadian tax law, no?

It will be interesting to see of the Supremes smack down the Fourth again (please please please) in this case. It's not a case likely to impact lots of everyday lives, but this is the kind of thing that legal wonks like me really get into.

Desmond and Molly Must Be Pissed

According to an online poll (as reported by the BBC), the worst song ever is "Ob-La-Di, Ob-La-Da" off The Beatles (aka "The White Album"). As we all know, the accuracy and credibility of online polls are beyond reproach, but I wonder how a Beatles tune topped a list that included such other musical luminaries as Vanilla Ice, Meat Loaf, and (for the love of the gods) ex-England midfielder Paul Gascoigne (who apparently recorded a version of "Fog on the Tyne" with quasi-proggers Lindisfarne). Just mining my CD collection, I can think of many worse tunes by otherwise good artists that make "Ob-La-Di" sound like the pinnacle of musical achievement. How about Rush's seminal "I Think I'm Going Bald" of Yes's "Love Will Find a Way" ("I eat at chez nous" - WTF is that, Trevor?)? Had I voted, my choice would be the entirety of Asgard's Gotterdamerung, which could be prosecuted as a crime against humanity.

I Am Not My Clients

Policy Review Online has an interesting (but dated) article by Lee Casey and David Rivkin, Jr. about how people use a lawyer's prior clients and arguments against him, particularly in the political arena. Should a lawyer suffer guilt by association because of his clients? I certainly hope not - I'm not a drug dealer, pedophile, or bank robber just because I represent them. But, as a PD, I think we get a sort of "pass" because everyone agrees that we provided a needed function. And, of course, other lawyers don't want to do the job. Private attorneys are a little different, however, as they can (theoretically, of course) walk away from clients who seek to achieve unjust or immoral goals. Should the attorney who takes big bucks to help a corporation shield as much of its assets from taxation as possible (completely legally) pay the piper later in life if he seeks public office? I'm not sure.

When TV Gets Lawyers Wrong

Today over at Findlaw, Julie Hilden writes about how television gets the law wrong. Most things, she concedes, fall away under the mantle of "dramatic license." But she goes on to note several things that cop/law TV shows get seriously wrong. Sort of. For instance, she argues that the shows make it look like people confess most of the time and that this is not the case. I respectfully disagree. A staggering number of people I see during an initial appearance (the first presentment before a judge after being arrested), if arrested based on a criminal complaint, have confessed to something. Or at least it says so in the complaint. I'm not sure of the exact numbers, but the fact is that lots of people talk against their own interest (or agree to incriminating searches), so I'm not sure TV gets that all that wrong. As for "scoffing at those who lawyer up," I think the general public feels that way, too. How many people think Scott Peterson is guilty only because he didn't testify during his trial?

Win Some, Lose Some

Last week, Dubya won a fairly decisive election to lock up four more years and some "political capital." Well, this week, his luck's not so good. A federal judge has entered a ruling that may halt all the "military tribunals" being conducted for prisoners at Guantanamo Bay. Basically, the judge ruled that the Geneva Conventions - the 1949 agreement between nations that set the ground rules for war - required that the Gitmo detainees be treated as prisoners of war with certain rights that have, up to this point, been denied. The Government will appeal. You can read the ruling for yourself here.

God v. Darwin, Round 2

As we near the 80th anniversary of the infamous Scopes Monkey Trial, the right wing continues to wage war on science, with the battleground being the minds of school kids everywhere. In some places it's pretty blunt - in Wisconsin (Wisconsin! holy hell . . .) a local school board has decided to teach creation "science" alongside evolution in biology classes. This flies in the face of not only the very definition of "science," but Supreme Court precedent which says teaching creationism violates the First Amendment separation of church and state. Meanwhile, in a more subtle version of the same debate, a Georgia (now, that's more like it) federal court is getting ready to decide if a local school board can include a disclaimer sticker on the front of its evolution-bearing textbooks. The disclaimer says that evolution is "theory, not fact," which is true as far as it goes, but I'm skeptical of the sticker-pushers' claim that they only want students to "keep an open mind."

Look, I'm all for teaching about different creation myths (and there are some doozies out there)in a comparative religion or sociology class, but the Bible has no place in a science classroom. Period.

This Post 100% Written by a Human Being (No Type-Syncing)

The whole Ashlee Simpson lip-sync scandal died down while I was AWOL (sorry about that - moved), but I can't help but comment on one part of it. One of Ashlee's defenses was, basically, everybody does it so it's not that big of a deal. I've even read defenders going so far as to say that no pop / rock musicians really play all their stuff anymore, so we shouldn't take out our wrath on poor Ashlee. Well, I call "bullshit" on that. There are loads of real musicians and singers who go out every night and play and sing their hearts out without the aid of backing tracks or taped vocals. If you think I'm lying, get your head out of MTV or VH1 and go find some more unknown talent that produce really great (if commercially unviable) music. Go see Mike Keneally while he's out on tour, or check out new DVDs from people like echolyn and Marillion. I can guarantee you that Steve Hogarth doesn't need no stinking backing tape to belt out the conclusion of "The Invisible Man."