Begging The Question
Thursday, April 01, 2004
1. Friday is National Walk to Work Day. I've mentioned in passing a few times here that I walk to work every day, but I haven't made a big deal of it. But Friday seems like a good day to lord my superiority over all you users of the horseless carriage. No, really, I don't think I'm "better" than non-walkers, but people sometimes do look at me a little funny when they find out. I mean, it's not like I'm doing mini-marathons here; it's about seven blocks each way. And despite the occasional rainy or snowy day or cars running red lights, I like doing it. First of all, I'm not stuck in traffic. So I'm like that old person on the sidewalk in Office Space instead of Peter and friends in their cars. But it also gives me a few minutes to wind down at the end of the day without having to pay much attention to what I'm doing. It's kind of a nice buffer zone between home and work. And it allowed me to check the "exercise regularly" box on my Match.com profile. But the best thing is it means I get to wear my Adidas all day instead of some "professional-looking" shoe. Anytime someone mentions them, I just say I walk to work and never got around to changing.
2. I mentioned the GnR greatest hits album earlier, and something in the comments reminded me of a commercial I heard on the radio recently. It was for a concert by Deep Purple, and the announcer said something like, "Hear Deep Purple perform some of their biggest hits!!" I'm thinking, some? If you're buying tickets to a Deep Purple show these days, aren't you pretty much counting on hearing all the biggest hits? It's not like they had that many. It's probably one of those concerts where "Now here's a few songs from our new album!" is the signal to the concession stand folks to get ready for a rush.
3. Tonight I heard the annual April Fool's show from the Capitol Steps. It should show up on the site soon so you can listen online. If you don't know who they are, the Cap Steps do musical parody about politcal goings-on, and have been for years. If you like that kind of thing, you'll really like that kind of thing. And don't worry, there's plenty of Dem-bashing too. The best part of the show was a song about John Kerry called "Both Sides Now" (to the tune of the song by the same name) about his ever-changing stances. But the literal show-stopper (because there was so much laughter) was during "It's Now For Nader" (to the tune of "It's Now or Never"), when the Nader character complained that Kerry had "taken more positions than Paris Hilton." Anyway, these folks are usually pretty funny and worth checking out.
Scott's comment to an earlier post prompts these questions from yours truly:
1. If one could purchase a Microsoft X-Box or a Sony PS2 which would be the better purchase?My online computer gaming days are over (one word: Macintosh) but I am now in the market for a game machine. I call upon you Mr. P, TP, THFB, Scott, etc. for your sage advice.
1. I saw a commercial last night for the Guns 'N' Roses greatest hits album. The funny thing was that the announcer declared them to be superstars "for two decades." It shouldn't really count if your tenure runs from 1987 to 1994, should it? I know that technically that falls within two different decades, but it's a little misleading. I'll give you a moment to do the weird Axl Dance.
2. Here's something I don't get. It's an elevator etiquette question. Why is it that some people try to squeeze out of an elevator as soon as the doors are open wide enough for them to slide through? I guess I can understand people hitting the "door close" button instantaneously, and I know that's the norm in some cultures, even if people really need to chill out about that. But think about the mechanics of the elevator: the door will open all the way before it starts closing, regardless of how fast it closes after that. So these people are in no way saving any of the rest of us any time, if their motivation is to reduce our inconvenience. I have seen people turn sideways and force their way out of the elevator, like they're Indiana Jones and the walls are closing in or something. It's really funny when they go too soon and get stuck and have to wait that extra second for the doors to open a little farther. How big a hurry can a person be in if they feel the need to shave off that half-second to wait for the doors to open just a few inches wider? I saw a book one time (can't remember the title) about how hurried people get nowadays, in part because of all the technology that allows us to move faster. One example I remember from the book was of people who, when faced with microwaveable food instructing them to cook it for a minute and a half, hit "88" because it's faster to hit the same button twice than to punch in "90" or "1:30" or whatever. Folks, it's a microwave! If you think ninety seconds is too slow, check out the conventional oven directions and imagine waiting two hours on that frozen dinner.
3. I admit I feel a little schadenfreude whenever Notre Dame football does poorly. But it's still sad to see former Fighting Irish great Paul Hornung make the comments he did recently. Hornung said that to get better, Notre Dame would have to ease academic restrictions so it could get "the black athlete." Hornung later apologized for his remarks, but stood by his position that ND should lower academic standards to get better athletes. I think that attitude signifies a whole lot about what's wrong with big-time college athletics, so kudos to another former Irish player, Tim Brown, for saying, "If Notre Dame doesn't win games because they don't lower their standards, I can live with that. But to lower your standards just to win football games is a wrong decision."
4. A question for fellow Sopranos fans. Warning: spoilers herein. What's the deal with Feech? When I saw this week's episode, I thought Feech had just been unlucky, that his greed and desire to get right back where he left off had bit him in the ass. Then, I read Slate's weekly wrapu-up by two mob experts. Apparently, Tony et al. had set him up by tipping off parole officials that Feech was hiding the truck for Chrissy. Maybe I just wasn't watching closely enough and missed something. But my question is, if these two writers can figure it out, why can't Feech? And if they're right, won't he be really steamed (to put it mildly) about his treatment? Will he be steamed enough to go to the Feds? Or is this ther last we've heard of Feech? Thoughts?
5. In somewhat-related news, I see that the girl who plays Adriana will join the Friends spinoff with Matt Leblanc. It sounds like that show is going to be a real clunker, based on the description in the story. But what I thought was funny was this line: "Her new gig on 'Joey' will not interfere with her contractual obligations to the 10-episode sixth and final season of David Chase's hit series, sources said." Uh, with Ade already talking to the Feds, I think we all know why the new show "won't interefere" with next season for her. Lastly in the Soprano news category, is it wrong for me to be as interested as I am in seeing Meadow in the USA Heidi Fleiss movie? Actually, I missed it the other night, but I'm sure it will run ad infinitum. Unless Tom Sizemore has anything to say about it, I guess.
6. Via Ken at CrimLaw, I find this story about how California Governor Arnold Schwarzenegger has stepped in on the side of a woman whom the California Supreme ruled was released from prison 65 days early a couple of years ago. She's been living right and doing well since then. I don't understand why Schwarzenegger can't just pardon her himself, or at least commute the sentence, instead of merely writing a nice letter to the court? If anyone understands California procedure better than I do, please advise. I had seen this story elsewhere, but I linked to Ken's version because his site has had a lot of good stuff up lately. I mean a lot, and I mean really good -- check it out.
7. Finally for now, via the Duke Basketball Report, the premier basketball fan site on the internet, I see news that at this weekend's Final Four in San Antonio, a "person of major importance" will attend, making security very tight:
Hmm. Any thoughts on who this might be? I think the easy guess would be the President. We'll find out Saturday.
UPDATE: Or maybe not. It appears I have been played for a sucker. This post looks to be DBR's annual April Fool's Joke. I saw it right before I wrote this post, and added it without a lot of critical thinking, although the "Patriot Act list" thing did kinda smell fishy. Anyway, it will join a nice long line of DBR pranks. A few years ago, they announced they were shutting down the site (echoes of Mr. P's post!), causing so much traffic their servers blew, which in turn probably led to lots of people thinking they really did shut down. One year it was the EPA announcing it was closing Krzyzewskiville because of Clean Water Act violations. Last year's was eerie. They announced UNC was firing Matt Doherty mere weeks before it actually happened. Anyway, if you're going to the Final Four, there probably will be some heavy security, but don't bother craning your neck looking for "a person of major importance."
I have read a lot of interesting things on the net lately. Instead of hoarding these jewels to myself, I decided to share them with you. I wish I had the expertise and / or analytical ability to break down some of these articles and offer my own thoughts, but I don't really think that my thoughts would add anything to these already excellent items. Just go read them and enjoy.
Blogs as journalism?
TPB, Esq. at Unbillable Hours has written an essay in which he addresses the nature of blogs and the journalistic qualities of blogs. In so doing, he mentions our blog by name. In describing the journalistic qualities of blogs, he had this to say about BTQ:
Begging the Question is a site with a more pointed tone than How Appealing or Witold Riedel :: NYC. Run by two young attorneys, Begging the Question intersperses editorial commentary on the law and foreign affairs with personal stories. The site continues the trend of a journalistic tone that is used on Bashman's site. However, it also has the personal tone of Riedel's site. It is not one that is pure journalism, but something more personal.[FN8] It is, at the same time, not a completely self-revelatory site.A very generous description indeed. It is quite flattering to see BTQ mentioned in the same paragraph with Bashman's How Appealing. Read the whole essay here.
An eyewitness account of the Iraq War
Jason Van Steenwyk, the self-described Nattering Nabob of Nebuchadnezzar, and proprietor of Iraq Now recently rediscovered his journal from his first days in Iraq. In his opening paragraph, Capt. Van Steenwyk sets out his goals in writing the journal:
This is a diary of my experiences as executive officer of Headquarters Company, 1-124th Infantry Regiment, during and after the war to liberate Iraq from Saddam Hussein. It may also be considered a love letter to my children, who do not yet exist, and to the next generation. May the world be a safer and better place for the sacrifices we make here today.He has posted some of the journal entries here, here, here, and here. Capt. Van Steenwyk's journal provides an excellent look at events on the ground in the first days and weeks of the Iraq War. Keep checking his site for updates. It is well written and well worth your time.
Guess who used to believe in the Iraq/al-Qaida connection?
I do not always agree with Chris Hitchens and his hostility toward Christianity makes it difficult for me to really enjoy his work, but he is an excellent writer. This Slate piece on Dick Clarke is well done. Gregg Easterbrook offers a similar take on Clarke here.
Reason Number 1 for requiring an admissions interview
Larry the Longhorn (please note this as my official request for a photo) on a minor law school flap (a prof telling his students that one of the school's three journals is obviously more prestigious that than the others) exploding into a major conflagration thanks to the efforts of one particularly moronic classmate and the ability to send a campus-wide broadcast email. Ah, memories... I cannot wait for updates. She chronicles the whole saga, beginning here with the original story and here and here for updates.
How valuable is dirt anyway?
Via How Appealing I came across this interesting article on SCOTUS blog about yesterday's U.S. Supreme Court ruling in BedRoc Limited, LLC v. United States. It is a very interesting discussion of the case and is likely the only time you will ever read about the Pittman Underground Water Act of 1919. The full opinion can be found here.
Today seems as good a day as any to announce that things are going really well for me. My apartment is finally clean, my new computer is up and running, I'm ahead of where I need to be at work, and I'm finally starting to get to bed earlier than 3:00 a.m. Plus, the best news of all is that I've got a date with a really great girl! I don't want to say much more now, because she's a BTQ reader, and I don't want to freak her out. :) But anyway, overall my life is as good as it's been in a long time, and I just wanted to take a moment today and share that with all of you folks who have hung in there with me. Thanks, really.
UPDATE: As Fitz guessed, this was all crap. Sorry for the April Fool's joke, if anyone fell for it, besides TP, who fell for this one and Mr. P's. For him, you know what they say about "fool me twice." :)
Oh, wait, one more thing. I wasn't joking when I thanked everyone for hanging in there with me as I go through whatever it is I go through. Please don't send me links for the symptoms of clinical depression, because after all, ignorance is bliss. So, until next year, from now on it's all real, all true.
Wednesday, March 31, 2004
I like baseball fine, but I never meant to post about it as much as I have the last few days. But apropos my post about public financing of sports arenas, here is an interesting Slate piece about a stadium deal premised on revitalization of a city center that appears to be working, in San Diego. The catch is that, instead of building the stadium as a gift to billionaire team owners and hoping for peripheral benefits to somehow materialize, the San Diego officials agreed to finance much of the stadium if the Padres owner agreed to build commerical developments around the ballpark himself. Of course, there are demographic realities in San Diego that won't apply everywhere -- I doubt Minneapolis is growing as fast, for example. And even this project may not pan out in the long run. But it should be of some value as evidence that there are other ways to do this than simply a giveaway of public money to the owners, with no promise of return on that investment.
For those of you who cannot get enough Milbarge and Fitz-Hume here at BTQ we have cordially been invited to guest blog at Sugar Mr. Poon?. Of course, we graciously accepted Mr. P's offer - so go on over to SMP? here for an extra dose of BTQ goodness.
Errata order: In paragraph one of this post, replace "we have cordially been invited to guest blog at SMP?" with "we have rudely commandeered the SMP? comments section." In the same paragraph, replace "we graciously accepted Mr. P's offer" with "we have abused our comments privileges and likely overstayed our welcome." Finally, in the last sentence of the first paragraph, replace "goodness" with "drivel."
Via How Appealing, I find this Ninth Circuit opinion. It's a brief, easy read, and good evidence that Judge O'Scannlain isn't always tough on criminal defendants. It's a fun read if you're interested in card-playing and card cheats.
The issue was whether the district court should have increased the defendant's sentence under a Guidelines enhancement for use of a "special skill" in the commission of the crime. Here, the defendant and some cronies had come up with a way to cheat at cards, which they used to make a lot of money at the casinos. The special skills the Government alleged they had used were (1) ability to cheat at cards, and (2) really good eyesight.
The enhancement applies "[i]f the defendant abused a position of public or private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense." (emphasis added) The Manual defines "special skill" as "a skill not possessed by members of the general public and usually requiring substantial education, training or licensing. Examples would include pilots, lawyers, doctors, accountants, chemists, and demolition experts."
The Ninth Circuit panel held that neither one applied here. It reasoned, in regard to cheating at cards, that the assessment should only be applied when a defendant used a legitimate skill to achieve an illegitimate end. Being really good at being a criminal doesn't cut it. As for good eyesight, the court held that a physical characteristic flatly cannot be a special skill. In the court's words, "It makes little sense to describe Liang as having the 'skill of good eyesight.'"
I'm not sure. Baseball Hall-of-Famer and frozen cranium Ted Williams was reputed to be able to see the individual stitches on a baseball as it was hurtling towards him. That's probably hokum, but check out the stories in this article. Williams on his eyesight:
I've seen reports of training techniques used in baseball, which probably requires more hand-eye co-ordination than any other sport. One had players standing in front of a scren onto which was projected an image of a rotating, vibrating circle with a number in it. Over time, the player can learn to focus the eye enough to read the number in the split second he would have on the field to pick up what kind of pitch he's getting.
I think in most cases, the Ninth Circuit rule will be appropriate. If you're very strong, and you bend the bars of your cell to get out of jail, I don't they should tack on an enhancement to your escape conviction for using the special skill of brute strength, even if you're a trained bodybuilder. But when you have trained the physical characteristic to a high degree -- a degree not possessed by the average person -- and the commission of the crime depends on your making use of that skill (as it apparently did here), the enhancement might be appropriate. Of course, I'm more of a "standards" guy than a "rules" guy, so maybe I'm just averse to per se rules like this one. Still, a neat case that gets one conjuring all sorts of bionic criminals and such. In that vein, Which X-Men character are you most like?
UPDATE: Will Baude discusses the special skill of cheating at cards on his blog.
It's an all-Derbyshire Corner today - avoid if at all possible.
Phil Carter at Intel Dump (I know, I know, I am starting to link to Intel Dump as frequently as Hobbesian Conservative links to the Corner - but so what?) recently wrote about the appalling treatment of an Oregon National Guardsman by his civilian employer Securitas Corporation. Essentially, Corporal Dana Beaudine suffered injuries in combat in Iraq, to include a diagnosis of post-traumatic stress disorder. He was discharged from active duty and returned home. When he sought to return to his previous employment, Securitas refused to reemploy Beaudine in compliance with federal law. That alone is bad enough. However, the most startling aspect of this story is that Securitas holds several major government contracts. As Phil wrote, "It [is] incongruous and unjust that a government contractor should be allowed to break the law, mistreat a reservist, and profit from taxpayer money." Phil suggested the following:
why not amend federal law (and/or the Federal Acquisition Regulation in the CFR) to provide for suspension or debarment (or both) as penalties for government contractors who violate the USERRA or SSCRA protections for their employees who are mobilized as reservists?
Well, another blogger and former warrior, Lt. (now Citizen) Smash saw this story, muttered "there outta be a law" and took action. He was able to get some face time with his Congressman (Congresswoman Susan Davis in this case) and got the ball rolling on legislation to address this issue. Take the time to read Citizen Smash's account of his meeting with Congresswoman Davis here and read his full proposal here. Long story short, Davis was very enthusiastic about Citizen Smash's proposal and sounds eager to bring this to the attention of her colleagues.
Democracy in action, no? Well, I second Phil's directive that, if you don't want your tax dollars going to corporations who mistreat their reservist-employees, write your representative in Congress and make your voice heard. If you want a good template for the letter, just go here and copy+paste Citizen Smash's fax into your letter or email. This should be a bi-partisan issue so write your representative regardless of his or her party.
Feddie, if you see this, I would encourage you to link to Intel Dump's story on your blog. SA gets substantially more traffic than BTQ does and I know that your readers would support the legislation proposed by Smash and Phil Carter.
Tuesday, March 30, 2004
What I am doing at work: An appeal from a nut. As it happens, the Curmudgeonly Clerk and (the real) Mr. P have been writing about similar cases lately. My case isn't as bad as those, because it's more localized to the plaintiff. Naturally, there are vast conspiracies involving lots of people, but they're primarily aimed at thwarting him, rather than wreaking broader societal misdeeds. I shiver when I imagine what it must be like to labor under these delusions. My guy brought a sec. 1983 suit challenging all kinds of things that arose out of his persecution complex and paranoia. I can't really get into the details, but trust me when I say his theories and "proof" are weird. I mean out there. And his certainty about it is stunning. In one instance, he asked the court to take judicial notice of a fact that I would regard as about as likely as an allegation that Martians are talking to him via his Alpha-Bits cereal. In just this record, I have something like 100 pages of these rants, and he frequently mentions petitions to other courts, letters to government agencies, newspapers, etc., so I can't imagine how much paper this guy goes through.
Anyway, in writing up the case, I'm torn. I don't want it to sound like I'm making fun of the guy or that I'm not even giving his claims any consideration. For example, just because you think the cops are out to get you doesn't mean that they didn't illegally search your car. I'm no expert, but it seems like events like that could even exacerbate a paranoia/persecution complex if you see bigger wheels turning against you. But instead of simply arguing that the police lacked probable cause or reasonable suspicion to do the search, you argue that they did it out of malice because they are part of this conspiracy against you. But I also don't want to just say, "[Appellant] fails to demonstrate that police lacked reasonable suspicion to search his car" without more. In other words, I don't want to make the case sound harder than it is by treating it like a run-of-the-mill case when it clearly isn't. So, I did the best I could and struck a balance of including the fantastic claims to add context.
I can certainly sympathize with the commenter at the Clerk's page who has to deal with these as a government lawyer. And stuff like this is a big reason I didn't want to be a district court clerk: by the time it gets to us, they've already done the hardest work. It sucks enough to get one of these cases with the district court and/or magistrate judge's opinions for us to use. I'd hate to just get handed the complaint and be told, "Figure out what he's angry about." In my lofty perch as an appellate clerk, it's easy to pooh-pooh these complaints and say that summary judgment, PLRA strikes, motions to dismiss, and sanctions are sufficient remedies against frivolous litigation (or at least the best we can do knowing that some litigants will never stop). First of all, folks like this are not going to be deterred by adverse decisions; it's more likely to be taken as proof that the judges are part of the conspiracy. And second, it takes me a lot less time to review the propriety of a district court order in a case like this than it takes the district court to research and write it. Still, I'm not sure what the Clerk has in mind when he concludes that, "[c]learly, substantial additional reform is required." I have trouble thinking of solutions that would not also preclude plenty of meritorious claims -- by which I mean claims that can at least survive a summary dismissal. As the problem is sure to continue, I look forward to discussing reform options as they are introduced.
What I am doing at home: My God, does the laundry ever stop? I am definitely one of those guys who is quite willing to to guy buy new socks or undershirts or whatever to avoid doing laundry for another day. The result is a huge -- and I mean huge -- pile of clothes on the floor of my bedroom. Ladies, I'm really, really not a slob, it's just gotten ahead of me lately.
What I am reading: Some stuff about restorative justice. One of my old (as in former, not aged) law professors wrote an article about restorative justice and domestic violence, and so I read it and The Little Book of Restorative Justice to get a sense of the principles of this discipline. For some basics, try that book (very short) or this site or this somewhat dated page from our own DOJ. A definition:
I'm a cynic and a skeptic, so I have my doubts about restorative justice techniques. And, I oppose a Victims' Rights Amendment to the Constitution and, generally seaking, victim-impact testimony in death penalty trials. By the way, see this press release announcing President Bush's support for a VRA for perhaps the only time in recorded history when Bush called California Senator Diane Feinstein a "great American." I don't really have enough time or space to expound on all my thoughts about restorative justice, but the concept presents some interesting issues.
What I am watching: Eh, not a lot. Other than college basketball, I'm probably watching less tv these days than I usually do. I suppose that will pick back up once the season finales roll around.
What I am listening to: Lots of Jackson Browne, especially Late For the Sky. Man, that title track just makes me break down and cry, especially when he sings:
What I am thinking about: Stuart Buck. I don't read his blog as often as I should but it's always good when I go -- until I heard that he had a stroke over the weekend. Glad to hear he seems to be getting better.
Peeve of the week: Forgetting what I was going to post about. I had a post in my head a few days ago that I couldn't get written before it slipped out. This happens from time to time, but I notice that writing a note to blog about this or that sometimes has the opposite effect -- I end up never posting on it, almost as if jotting even that brief note suffices to scratch the itch. I'm not much of a note-taker or rough-drafter. (Hear that, Judge I'm going to be working for next year?) Anyway, I had a really good post going in my internal monologue (I really need a tape recorder and voice-recognition software) about, what else?, sex. I was going to tie in last week's Fourth Circuit opinion striking down a law banning material on the internet that is "harmful to minors," last week's Slate diary on location with Girls Gone Wild! (no link because I hate those videos so much), and last week's online dating tips from The Onion. If you're thinking, "Hey, that does sound like a good post," you're right. It was. Unfortunately, I can't remember my point. You're welcome to create your own using only the links provided and tales from my sad life.
Today's Tidbit: I don't think we need any more from me today. If I were on trial, charged with being pathetic, the judge would have long ago excluded this evidence as cumulative under FRE 403.
UPDATE: How funny that right after I write about being put on trial for being pathetic, I go home and turn on the tv to find the film Defending Your Life. So appropriate. If you haven't seen this one, I recommend it. It's a very dry humor, but enjoyable, although not as good as the excellent Broadcast News. (That one is an all-time fave, because I can sing while I read; I am singing and reading both! And trust me, it is awful to always think I'm the smartest person in the room.)
Monday, March 29, 2004
If you're not reading Sugar, Mr. Poon?, here's your chance. No, he's not guest-blogging, and no, this isn't a mock site. Via my strong powers as a medium, I have actually channelled Mr. P, so I'm saving him all the trouble and just reading his mind. Here's a few posts for you:
In Rod We Trust
Wonder if Michael Newdow will sue over this?
Posted at 12:25 a.m. || Trackback  || Free Cookies! 
Let me get this straight...
So the basic deal with Jersey Girl is that two stars, who might appear mismatched at first, are thrown into some awful situation, but they're suposed to pull through it together and everyone lives happily ever after -- but the twist is that one of them dies fifteen minutes into the film? Yeah. I liked this movie the first time I saw it -- when it was called Executive Decision.
Posted at 12:26 a.m. || Trackback  || Free Cookies! 
1. Get amazingly cool doctor girlfriend.
2. Convince her to let me call her "Ms. Poon."
3. Run off to play golf on her birthday.
Check, check, and double-check.
Posted at 12:27 a.m. || Trackback  || Free Cookies! 
Have Bush & Kerry taken a stand on this?
The budget in Germany is so bad they've stopped handing out lederhosen subsidies. Well, there goes my summer plans unless that scholarship comes through.
Oh, and if that didn't meet my daily quota of wacky news stories from foreign countries, there was a streaker at the women's World Figure Skating Championship in Germany last week. At first, police thought he was a competitor getting in some practice laps. One word: skrinkage.
Posted at 12:28 a.m. || Trackback  || Free Cookies! 
Help! Someone has implanted a device in my ear that receives signals from around the world! I'm hearing voices, and they're telling me to do stuff! Oh wait....it's just my cell phone earpiece. Never mind.
Posted at 12:29 a.m. || Trackback  || Free Cookies! 
Last week I mentioned my surprise that Jack Palance is still alive. Unfortunately, in this updated picture, he's not looking too good. Anyway, the reason I mentioned it is this. Even though I talk a lot about Fletch, my actual favorite Chevy Chase movie will always be Cops and Robbersons. Whew. Feels good to get that off my chest.
Posted at 12:29 a.m. || Trackback  || Free Cookies! 
I didn't have anything to say here. I just had to meet my daily quota of four posts with the title "Um."
Posted at 12:30 a.m. || Trackback  || Free Cookies! 
I'll see ya in 8-9 hours. I'm off to re-paint all the signs at my school so they read "University of Poonsylvania!"
Posted at 12:31 a.m. || Trackback  || Free Cookies! 
Every once in a while, a reader will send us a suggestion for something he or she deems "blogworthy." We welcome these ideas, as we are clearly incapable of coming up with a full blog's worth of original material. Most of the time, though, it doesn't turn out to be something that fires us up, or other things prevent us from writing about it, or whatever. Often, we agree that it's a neat issue that's worth writing about, but for whatever reason we just can't put it into words the way we would like to. Again, we appreciate all the suggestions, and we hope you understand that even if something is blogworthy, it doesn't necessarily mean that we're worthy of blogging it.
This all leads up to this. We got an email from a loyal reader pointing to a story and suggesting blogworthiness. In the course of writing him back and explaining why I wasn't going to blog about it, I ended up writing more than I usually write in a regular post. So, I just decided to convert it into a post.
Our reader pointed us to this New York Times story about a federal case involving a juvenile who burned up a marina housing former President Bush's boat. I agreed with our reader that it is blog-worthy. In fact, UNC Law Prof Eric Muller felt that way three months ago. (Without paying for the old NYT story, I can't be sure, but apparently that was when the issue came up in the First Circuit, and the new story is about stuff happening in the district court.) (I also seem to recall that Eugene Volokh posted on this, but always have a devil of a time with his search function, so I couldn't find the post in a timely fashion. But be advised, it's out there somewhere.)
Anyway, I think I pretty much agree with Muller's take that criminals have to take their victims as they find them. The example in his post was the street mugging of former colleagues of his in the U.S. Attorney's Office, a case which was prosecuted federally. Part of my agreement on this has to do with my being a federal employee, I'm sure. But if your victims turn out to be the president -- or his boat -- well, tough. What's most interesting here is that if this were purely a matter of whether it should have been prosecuted federally, it's (virtually) a no-brainer. In most circuits, the U.S. Attorney's certification that a juvenile case is of federal interest is an unreviewable exercise of prosecutorial discretion. (That's the procedure -- the USA has to certify it under a statute, but it simply amounts to a statement that this is a case worth their time.) And even in the circuits that allow for such review, it's a very deferential standard. And even if it weren't, I think you can make the argument that an arson that destroys a former president's property creates a substantial federal interest. For one thing, we don't want kids to do it if they think they can get off with a slap on the wrist in a state juvenile court. For another, we don't want adults to use juveniles as pawns to do this sort of thing (even if we could always prosecute the ringleader federally, we don't want to give him any incentive to use a patsy to do the dirty work.) Finally, we want national standards of treatment for these case, rather than Arkansas sending some kid to juvie for a few years for defacing the Clinton library while California gives a kid a parade for torching the Nixon library.
But, the twist here is that the Maine U.S. Attorney who brought the charges said that the fact that it was George Bush's boat didn't have anything to do with it! If that's true, you've got to wonder why he brought charges at all, unless he really has a thing for arson cases or something.
Apparently, the original charging decision isn't an issue here (perhaps because the defense recognizes it's a loser). Instead, the challenege is over where the kid was sent (a prison in Pennsylvania). The U.S. Bureau of Prisons doesn't operate a juvenile facility, and according to the Times story, the First Circuit said that the district judge "had not sufficiently considered the location and rehabilitative capabilities of the detention facility chosen by the government as required by federal law."
So, even if the kid got sent to the wrong prison, it doesn't look like the argument is going to be over whether he should be in prison at all. That ship has sailed (pun intended), and one has to wonder if the Times is trying to make this sound more sinister than it ought to be. My bottom line is that, even though my guess is that the Maine U.S. Attorney's Office probably had better things to do, it's not unreasonable that this was a federal case. And that means hard time. It's sad, but them's the breaks. It looks like the kid might be better off in a different prison, but his best bet may be applying for the first pardon issued by the current President Bush.
(This post's title is a line from the song Ain't That a Kick in the Head?, which Dean Martin performed in the original version of Ocean's Eleven.)
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