Will F1 Lose It's Heart?

In what has, sadly, become a perennial late-season tradition, F1 grand poobah Bernie Ecclestone is threatening to keep the British Grand Prix off next year's schedule. The current venue, Silverstone, hosted the first F1 race of the modern era and the British GP has been a fixture on the schedule ever since. There are, in my mind, three European circuits that must be on the F1 calendar: Spa, the last of the true driver's tracks; Monza, home event for Ferrari and the soul of F1; and Silverstone, home race for the majority of the teams and the heart of F1. Bernie's already dicked around with Spa (on again off again on again) in his pursuit of bigger pay days in Asia. Will it come to the point that, without Sliverstone and on the heals of Ford/Cosworth's pull out, that the other powers in the sport finally tell Bernie to go fuck himself and go it on their own?

Dubya, Kerry and the Supreme Court

USA Today today has an article about the potential impact of the upcoming presidential election on the future of the Supreme Court. The current court has been together for longer than any other Court since the 1830s and will almost certainly change in the next four years, so the next Pres will probably have a major impact on the Court. A good (and sobering) read to get you ready for the debate tonight.

Dodging Jury Duty

Findlaw today has this article that provides some sad statistics about jury service in this country. Only about 30 percent of those summoned for jury service show up. It should be no surprise then that when a Los Angeles judge recently ordered almost 300 wayward jurors to present themselves and explain their absences only 8 of them actually showed up. C'mon people, the jury is the great bulwark of liberty standing between you and the state. It only works if you participate.

Of course, maybe some people are down on jury duty because of shenanigans like this. A judge in California has been rebuked for telling potential jurors to lie in order to avoid being on a jury. The judge told jurors that if they might have any racist tendencies, but didn't want to disclose them during voir dire, to make up something else that would allow them to be kicked off the jury. I understand where the judge is coming from - most people who are prejudiced in some way don't want to admit it, certainly not in open court. But there has to be a better way.

The Mighty Moog Makes a Comeback

The New York Times today has an article about the resurgence of old-fashioned Moog analog synthesizers in modern music. Musicians have junked modern digital keyboards, which sometime come across too clean and sterile, for the warmth of the old Moog (and Hammonds and Mellotrons, too). Of course, the newer Moog synths are a little more refined than Keith Emerson's 500-pound beast from the old ELP days!

Welcome to West Virginia, Martha

CNN.com is reporting that Martha Stewart's request to serve her prison time in the Northeast has been denied and that the Bureau of Prisons is shipping her to lovely Alderson, West Virginia. Alderson is, I believe, the first federal facility for women and has been home to some notorious criminals, including "Squeaky" Fromme. So, Martha, on behalf of the locals, welcome to the Mountain State.

All Is Well, Go Hug an Oak Tree

Apparently things really took off in this country overnight. Bin Laden and his cronies must be dead, the so-called economic recovery has really blossomed, and John Ashcroft handed Dubya his letter of resignation. That's the only way I can fathom the House taking the time to vote to make the Oak our national tree. That's the kind of tough decision making we pay them six figures for! Of course, now we have to worry about all that "Oak oppression."

Dissecting Arbaugh

If the presidential race is a little to laid back and collegial for you, come to West Virginia and check out our Supreme Court election. One seat on the sharply divided court. Currently occupied by Justice warren McGraw, he fought off a well-funded pro-business candidate in the Democratic primary and is now staring down the barrel of a similar challenge in the general election. For this round, his opponents have brought to light a decision of the WVSC from this March in which the court reversed a trial court's decision to revoke the probation of a convicted child molester. A group called And for the Sake of the Kids is using that case, called State v. Arbaugh, to paint McGraw as soft on crime and a general menace to your children. Do their charges stack up? Not quite.

Arbaugh involves a man who, while a child, was viscously sexually assaulted by friends and family. Not surprisingly, he eventually acted out in the same way, assaulting his brother and others while only 15. He eventually pled guilty (to only one count) of first degree sexual assault, a crime that generally carries a 15-35 year prison term. Because Arbaugh was a youth when he committed the crime (although tried as an adult), he was subject to various non-incarceration punishments, including probation. He had problems with each, although for things like using drugs or "showing disrespect," not actual physical or sexual violence towards others. Finally, an exasperated trial judge refused to give Arbaugh one more chance, denied his motion for a reduction of sentence to probation, and hit Arbaugh with the full force of the long prison term.

The issue in the case was this: did the trial court abuse its discretion by denying Arbaugh's motion? In a per curiam (unsigned) opinion, the WVSC said yes. All five justices then wrote or signed onto dissenting and concurring opinions. Justice Davis (who, I've read, actually wrote the per curiam opinion) wrote a dissent that was joined by Chief Justice Maynard, Justice Albright wrote a concurrence that was joined by Justices McGraw and Starcher, Justice Starcher wrote a brief concurrence and dissent, and finally Chief Justice Maynard added his own dissent.

The upshot of all these opinions is this: the dissenters believe that the West Virginia Youthful Offender Act required Arbaugh to be sent to prison, with no alternative. The de facto majority (Albright, Starcher, and McGraw) believe that other WV statutes and regulations allow the district court an option of reinstating probation and that the egregious circumstances of this case warranted another term of probation. From what I've read, both sides make good arguments: there is an apparent tension between the Youthful Offender Act and the main probation statute, not to mention one Rule of Criminal Procedure. How this ever got to be a per curiam case I will never know, as this issue is one that needs definitively resolved and obviously has polarized the court.

Back to the For the Sake of the Kids people. Did McGraw (and Starcher and Albright) get it wrong in this case? Quite possibly, but it's hard to tell, particularly given the horrible per curiam opinion. If they are wrong, however, they're wrong on the law, not on the general issue of whether child molesters are good people. The For the Sake of the Kids folks try to paint this picture of McGraw gleefully voting to let Arbaugh back on probation, which I suspect is far from the truth. The group gives no background on the case, including the fact that Arbaugh was 15 when he committed the one offense he has actually been convicted of and suffered horrible sexual abuse in his childhood. Perhaps child molesters should never be eligible for probation. That's a perfectly valid policy position, but not one that a sitting Supreme Court justice can take. The great irony is that the pro-business folks who attacked McGraw so much in the primary did so precisely because they allege he makes policy from the bench. You can't have it both ways, folks.

So, is the Arbaugh case completely fucked up? Most definitely. Does it point to some serious problems of statutory and constitutional interpretation that the Supreme Court needs to address? You bet. Does it mean that Warren McGraw is dangerous to your kids? Hardly.

Put Me In, Coach

Over at The Yin Blog, the proprietor has speculated on whether federal appellate arguments could be made into compelling "sports" television. We'd need cameras first, of course, which shant happen for a long time (even though many state appellate courts have cameras and live web feeds), if at all. As a potential "player" in these games, I say bring 'em on! I'm willing to sell patches of my suit-space to willing sponsors - "I represent the appellant and I'm here today with help from the fine folks at McDonald's, and I'm lovin' it!" As to the actual coverage, ESPN will show anything, so why not. I'd prefer color commentary from someone like Speed's David Hobbs, however, who would not doubt have a ball with our legalisms.

Will the Supremes Reign In Eminent Domain

It used to be that if your property was safe from appropriation by any government (state, local, or federal) unless 1) you were paid for the taking and 2) the taking was necessary for the public good. You know, to build school, a hospital, or a hyperspace bypass. Important things. Lately, local governments have been using the power of eminent domain to take land from one group of people (usually home owners) and give it to another (usually business owners) in the name of "economic development." This has understandably pissed quite a few people off and the courts have seen many challenges to this process.

Finally, the U.S. Supreme Court is stepping into the fray by agreeing to review a case from the Supreme Court of Connecticut. The state court held 4-3 that it was proper for a town to take some homes on the waterfront to clear the way for a commercial development, to include a riverfront hotel, health club, and offices. The court concluded that the promise of increased tax revenues from the development justified the taking.

Stupid Congress Tricks

A while back I blogged about a bill circulating in the House that would attempt to short-circuit some of the gay marriage debate by stripping the U.S. courts (including the Supreme Court) of jurisdiction to deal with the issue. In spite of the Constitutional problems with such an approach, the House is at it again, this time with the "Pledge Protection Act," which would do the same thing regarding constitutional challenges to the Pledge. As Marci Hamilton points out over at Findlaw, this is an idea that is not getting better with age.

My Name Is Swaggart, I Am an Asshole . . .

Legendary televangelist Jimmy Swaggart is at it again. His most recent moment was this choice quote from his TV show:

"I've never seen a man in my life I wanted to marry. . . . And I'm going to be blunt and plain: If one ever looks at me like that, I'm going to kill him and tell God he died."

Putting to one side, for a moment, the prospect of a gay man hitting on Lonesome Cowboy Jim (a very desperate gay man, I expect), leave it to Swaggart to respond not just with violence, but with killing. Of course we all knew that this hypothetical gay man would have no chance with Jimbo, unless he liked to dress up an 1865 Louisiana-style prostitute.

There Are No Free Rides, Baby

It appears that the buzz is about to wear off from Oprah's great car promotion. I refuse to call it a giveaway, as she didn't give anything, other than free publicity to General Motors. Anyway, the winners are being informed that along with their new Pontiacs will be coming income tax bills of up to $7000. This is Tax Law 101, people - you must pay taxes on any income you receive, including prize winnings. And nobody can pay the taxes for you, as that is actually just extra income.

Let's Get Jimmy Kimmel for the Debates

USA Today's cover story today is about how Dubya and Kerry are constantly trying to "out manly" each other. I guess this is part of the outreach to the "NASCAR dads", particularly in swing states like West Virginia. This all seems completely hilarious to me, but I guess I'm not one of the "manly" men their trying to sway - I don't own anything in blaze orange, for example. If it's really all about being "manly," then maybe we should do away with the traditional debate formats this year. Instead of Jim Lehrer, let's have Man Show creator Jimmy Kimmel to moderate. And instead of a reasoned exchange about the issue, Kerry and Dubya can just "whip it out" and prove who's manlier once and for all.

On Calling a Flip-Flopper a Flip-Flopper

Finally, someone in the national media has applied the "flip flop" test to Dubya. USA Today's DeWayne Whickham lists just a few of Dubya's changes of course from the last few years in his column today. All that it means, of course, is that Dubya is a politician, just like any other, and will sell out any position for political expediency at the drop of a hat. That his people have convinced many voters that only Kerry possesses this trait is quite an achievement.

Justice at the Olimpico

As I suggested the other day, UEFA officials have awarded Dynamo Kiev a 3-0 win for their interrupted match with AS Roma last week. The match was abandoned at halftime, with Kiev up 1-0, due to a Roma fan who plunked the ref in the head with some sort of object. Right call, I say.

Sir, Step Away from the Maypole

I'm currently working on an appeal for a client who was convicted of illegally reentering the country after having been deported. Since I know nothing about immigration law, I rooted around on Westlaw for some sort of primer on the topic. Luckily I found Immigration Law for Criminal Lawyers: An Overview (16-WTR Crim. Just. 18 (2002)), which did a good job of summing things up in about 11 pages. In the process, I came across this amusing piece of history:

What was the first removal in this country?

Thomas Morton of the Massachusetts Bay Colony, for various infractions including free-living, encouraging conviviality and merriment, writing bawdy verse, ridiculing the Puritans, selling firearms to Indians, and erecting a Maypole. In 1627 the Pilgrims cut down the pole, arrested Morton, and exiled him to the Isle of Shoals. He escaped to England but reentered this country in 1630, only to have his property confiscated and be exiled to England. He reentered again, in 1634, and was imprisoned, fined, and exiled to Maine. (This is not atypical of what one sees today in federal court.)

Imagine the effort that it took to cross the Atlantic twice after being kicked out of Massachusetts in the 1630s. That must have been one hell of a maypole.

An End Run Around the Electoral College

Every four years, folks pop up who want to get rid of the Electoral College and move towards direct popular election of the President. That was particularly true in the wake of the 2000 election, where Dubya lost the popular vote but won in the Electoral College. Doing away with the EC itself would require amending the Constitution and is probably not a realistic option. But states have some flexibility in how they interact with the Electoral College and change may be coming there.

Yesterday's New York Times had an article about an initiative on the Colorado ballot that would lead to the apportioning of the state's electoral votes. Unlike Maine and Nebraska, which award electoral votes to the winner in each Congressional district (it has always been the same throughout the state), Colorado would divide its electoral votes among the candidates based on their share of the popular vote. So if Dubya beats Kerry in Colorado by 51% to 49%, Dubya would get 5 electoral votes and Kerry would get 4. Under the traditional system, Dubya would take all 9 votes.

The Colorado proposal seems like an end-run around the EC to me. It basically tracks the popular vote, although some of the lesser candidates would not receive anything due to the rounding necessary when you only have 9 electoral votes (California might work differently). And, yes, it's a little shady to put the measure on the ballot this November and have it in effect during this year's Presidential election. Foes of the proposal (including a group called Coloradans Against a Really Stupid Idea) are claiming that it's all political, as Kerry stands to gain a few electoral votes from the traditional Republican stronghold. USA Today has arguments both pro and con today.

And I Thought the NHL Lockout Would End Sports Violence

Yesterday's second day of UEFA Champions League action was blotched by a nasty incident at the Olympic Stadium in Rome. As the match between AS Roma and Dynamo Kiev moved towards halftime (with Kiev up 1-0), the ref gave a Roma defender a red card. Right after, some idiot in the crowd beaned the ref with something, resulting in a nasty cut and lots of blood on his face. The game was never restarted after halftime. UEFA is pondering what the result of the match will be until next week. I have to say that I think Dynamo gets the three points - they were winning at the time of the stoppage, which was no fault of their own or of their fans. If Roma can't control their tifosi, that's they're own damn fault.

"Mission Accomplished" My Ass

The cover story in USA Today today was a pretty sobering account of how bad things are in Iraq and how, quite frankly, the powers that be in the US completely fucked up by getting us into this mess. I think the best summary in the article is this:

"The bottom line is, at this moment we are losing the war," says Andrew Bacevich, a former Army colonel who teaches international relations at Boston University. "That doesn't mean it is lost, but we are losing, and as an observer it is difficult for me to see that either the civilian leadership or the military leadership has any plausible idea on how to turn this around."

While "it is certainly a good thing that Saddam Hussein is gone," it is difficult to say that Iraq is in better shape, Bacevich says. "Iraq was a lousy place to live when Saddam was in power, and Iraq is a lousy place to live with Saddam Hussein gone and this growing insurgency" in his place, he says.

Another analyst, from the Cato Institute, rejects the comparisons to US involvement in Vietnam and says the developing morass in Iraq is more like the Soviet occupation of Afghanistan or the British occupation of Northern Ireland. And we all know how well those went.

The Death of the Death Penalty

The New York Times is reporting about a study that finds fewer and fewer death sentences are being handed out in each of the past four years. From a 1990s average of almost 300 death sentences imposed every year, the number has dropped to 174 per year. As activits fight to get rid of the death penalty through legislative means or the courts, one wonders if the jury system may simply weed out the punishment in a more practical way. Also, if it's true that the death penalty has overwhelming public support, how come the "public" sitting on juries are imposing it less often?