Infinity Ranch

USA, by King Crimson (1975): In the liner notes for Half Alive in Hollywood, Mike Keneally talks of how over the course of the disc Bryan Beller's bass rises to the top of the sonic heap, displacing Mike's guitar in its wake. Beller must have been channeling John Wetton during Crim's 1974 tour of the US, as captured on this disc, because Wetton absolutely rules these tunes. His bass is punchy, growly, and constantly demands to be listened to. His partnership with drummer Bill Bruford was perhaps at its zenith here, as evidenced by their fantastic interaction on the improv "Asbury Park." Fripp and Cross are just along for the ride.

As Joe puts it in the Ground and Sky review, "[t]he material on here, pardon the technical term, kicks major ass." Indeed.

I've held off talking about Scooter Libby's sentencing earlier this week, partly because there's been so much blather in the blogosphere about it already, and partly because I hadn't come across a good description of the Guideline machinations that resulted in Scooter's advisory range being 30-37 months. Thankfully, Edward Lazarus over at FindLaw does just that today.

As he explains, the Guideline for perjury requires a cross reference to the Guideline for the crime that was subject of the underlying investigation. For that reason, Scooter's Guideline range bumped up based on the crime being investigated - disclosure of a covert CIA agent's identity. Keep in mind that the relevant issue is not whether that crime was committed (or that Scooter committed it), but that it was the subject of the investigation that was obstructed.

As Lazarus points out, cross references are the bread and butter of the Guidelines. The felon in possession Guideline, for example, cross references to all kinds of different things depending on what the defendant allegedly did with the gun. I've had a client sentenced as if he was convicted of attempted murder, even though not jury returned that verdict. Thus, it's not unusual or devious for the Government in Scooter's case to increase his sentence in such a manner.

Another point Lazarus makes is that, in the end, Scooter's sentence could have justifiably been lower, but it's not unreasonably long. He performs the kind of "unreasonableness" analysis that the Circuit Courts should be performing in a post-Booker world. He might have imposed a lower sentence, but he can't say that the 30 months Judge Walton gave Scooter is per se too long.

And speaking of Judge Walton, revel in this bit of irony about this Duhbya appointee:

That Walton would put the Bush administration in an uncomfortable position of having to consider a politically charged pardon for Libby is highly ironic: The 58-year-old jurist was one of the first appointments that Bush made to the federal bench in October 2001, a prime example of a new law-and-order mentality that the administration wanted to infuse in the courts.

'Bush wanted people to know that 'I appoint tough guys to the bench,' ' said Roscoe Howard, the U.S. attorney in Washington during Bush's first term. 'They appointed him just for what he did to Scooter; they were just not expecting it to happen to Scooter.' ...

The 2 1/2 year sentence was within the range of guidelines that the Bush administration has created and espoused for federal judges to follow to ensure that defendants are punished the same regardless of the judge hearing their case. The administration and Republican members of Congress have admonished other judges who give defendants a break under the guidelines — as lawyers for Libby sought Tuesday when they asked Walton to give him probation only.

That bolded quote captures a lot of my feeling about Scooter's sentence. If I were to make a list of unjust sentences imposed in federal courts, Scooter's would be a long way down the list, precisely because of the kind of "law and order" lock 'em up forever mentality to which he now falls prey.

My other thoughts are neatly encapsulated in this Orin Kerr post over at Volokh.

Today's New York Times has an interesting article about a coalition of guitar makers trying to find a way to manage the kind of exotic timber resources that make good instruments. The companies - Martin, Taylor, Fender, and Gibson - have joined up with Greenpeace to try and create sustainable resources from which they can build guitars. As the current head of the Martin clan puts it:

'If I use up all the good wood, I’m out of business,' Mr. Martin said. 'I have a 2-year-old daughter, Claire Frances Martin, and she can be the seventh generation C. F. Martin. I want her to be able to get materials she’ll need, just as my ancestors and I have over the past 174 years.'

That goes to show that enlightened self interest is what will save the environment. Nothing else.

It's not as bad as this:

A Chinese couple in their 80s who only communicate via terse notes are embroiled in a courtroom battle over control of their household finances.

Despite being married for more than 50 years, the couple's relationship has never been good and they have not spoken to each other for several years.

The irony, of course, is that they're not asking the court for a divorce, but for help maintaining their marriage, such as it is.

The Universe Will Provide, by Mike Keneally & the Metropole Orkest (2004): What happens when the hugely talented Keneally is given an entire modern orchestra to work with? Good stuff, man. Good stuff. The Metropole, from the Netherlands, rips through nearly an hour's worth of material, with Mike lending his musical skills on guitar and electric piano. It's all very "modern" without being inaccessible. I'd love to hear a drum & bugle corps work this up for a show - there's even a built in percussion feature in "When Drums Dream!"

One of my jobs at work is to keep track of pending Supreme Court cases so that the office is aware of breaking issues and won't be caught flat footed if something good happens. Don't laugh, it happens! This term, at the top of that list are two cases that will, hopefully, explain to us mortals exactly what sentencing should look like in a post-Booker world. One problem - the defendant/petitioner in one of those cases, Mario Claiborne, is now dead. Killed during flight from a grand theft auto (he was not the robber, for what it's worth). As a result, his case has been dismissed by the Court as moot. As a consequence, it appears that the lower appellate court decision against Claiborne has also been vacated. In much the same way that Ken Lay prevailed on appeal by dying, Claiborne's untimely snuffing at least means he went out a winner.

Should the Court have been so quick to dismiss? After all, the issues in Claiborne's case are vitally important to the day-to-day functioning of the federal courts and will have an impact on thousands of defendants. Over at FindLaw, Michael Dorf argues that the Court's standing jurisprudence is in conflict with it's role as a "constitutional court" rather than an error correcting court and that jurisprudence should be reconsidered. He may be right.

With the World Cup a year distant, international soccer fans this summer are focusing on regional championships. The CONCACAF region, of which the United States is a member, holds its championship, the Gold Cup, starting tomorrow*, in various venues across the US. Ives Galarcep over at ESPNSoccernet has a group-by-group preview. If all goes as planned, the US and Mexico will meet up in Chicago on June 24 for the final. Which becomes just another chance for us to continue our domination of El Tri in recent years.

The US kicks off play in Group B against Guatemala tomorrow at 9pm EST on Fox Soccer Channel, with other group matches on June 9 (Trinidad & Tobago) and June 12 (El Salvador).

* UPDATE: Whoops! Looks like action kicked off today in Group A. My bad.

A Trick of the Tail, by Genesis (1976): I picked up a cheap poster of the cover art for Trick off of Amazon a while back. I finally got around to taking it to get framed this weekend, which, unfortunately, is not so cheap. In the process, the girlfriend asked what the big deal was - the artwork wasn't very good, after all. My answer was that it was because of what it represented, one of my favorite Genesis albums. Why is that? Just about everything on this album works and works really well and there are several bits that are unique in the Genesis catalog - the spooky Mellotron & synth coda to "Entangled," the extended piano work in "Mad Man Moon," not to mention the thumping instrumental closer "Los Endos." Besides, it's the only album I own that actually deals with appellate practice:

If they try to hold me for trial
I'll stay out of jail by paying my bail
And after I'll go to the court of appeal saying
'You've done me wrong, it's the same old song forever.'

All that and a kick ass synth solo to boot!

Yesterday, the Second Circuit Court of Appeals handed the major TV networks a big victory in their ongoing battle with the FCC over dirty words. Particularly, "fuck" and "shit" (and variants thereof). The specific issue is what to do when a random word of curse is broadcast over the airwaves. For years, since the Pacifica case involving Carlin's seven dirty words, the FCC would not take action against a station that broadcast a stray curse word, particularly in live broadcasts. That all changed once Duhbya and his bunch got into office. The FCC revamped their regs and, overnight, pretty much every use of the word "fuck" or "shit" became per se illegal.

The networks sued, under a multitude of theories, to strike down the new regs. The court sided with the networks, ruling that the FCC screwed up under the Administrate Procedures Act by failing to properly explain and justify such a radical change in the law. Along the way, the court made mincemeat of most of the FCC's rationales for the rule. For example, in shooting down the FCC's per se rule, the court noted:

Similarly, as NBC illustrates in its brief, in recent times even the top leaders of our government have used variants of these expletives in a manner that no reasonable person would believe referenced 'sexual or excretory organs or activities.' See Br. of Intervenor NBC at 31-32 & n.3 (citing President Bush’s remark to British Prime Minister Tony Blair that the United Nations needed to 'get Syria to get Hezbollah to stop doing this shit' and Vice President Cheney’s widely-reported 'Fuck yourself' comment to Senator Patrick Leahy on the floor of the U.S. Senate).

That's at page 27 of the opinion. Although the court's holding was based on APA grounds, and the case was remanded to the FCC for further justifications, the court pretty clearly indicated that the FCC rule would fail under the First Amendment as well.

Either way, it's a nice win for those of us who don't think the only suitable TV programming is Mr. Rogers and Little House on the Prairie!

Last week, a jury in West Virginia returned a death penalty verdict for the first time in almost 50 years. The state did away with the death penalty in 1959, but the federal government can seek the death penalty in any state, as it has done more robustly since the current administration took office. Spurred on by our death verdicts (two co-defendants), today's Charleston Daily Mail reflects on the end of the death penalty in West Virginia. Particularly interesting is this reflection from Governor Cecil Underwood, the last executive to preside over an execution in WV:

When Cecil Underwood was first elected governor in 1956, there were four men sitting on death row.

'Three of them were executed and one I commuted,' Underwood said this week. 'He was a Clarksburg boy who sexually attacked and murdered a teenager. A doctor's report said he was hopelessly insane.'

Underwood, a Republican, couldn't recall the commuted prisoner's name. But he remembered having the inmate examined by three different medical teams in West Virginia and one out-of-state physician.

The day after he let the prisoner off the hook, Underwood said the victim's mother held a press conference to denounce the decision. Then she committed suicide.

'I got more criticism for that one than any of the other three,' Underwood said.

I think that's the great danger of capital punishment. Those most affected by the crime are unlikely to be able to divorce their rage and desire for revenge from broader issues of justice like, say, whether the condemned is batshit insane. And many politicians, wary of being branded soft on crime (or, to paraphrase Futurama, "soft on the wrongfully condemned"), don't have the stones to use their authority to grant clemency.

We, as a state, are better for not killing in the name of "the people," It's a shame the federal government doesn't respect that.

Time Crunch, by Niacin (2001): Magna Carta put together several instrumental prog supergroups there for a while. Of all of them, Niacin has had the longest lifespan, IIRC. Maybe that's because instead of a guitar player out front shredding away, Niacin is powered by B3 master John Novello. The result is a little blusier and jazzier, even when ripping through up tempo flashy bits. Props for a very cool cover of "Red," proving you don't need a guitar player to rock!

I somehow managed to miss/overlook the 40th anniversary of the release of Sgt. Pepper's Lonely Hearts Club Band. For all its importance and influence, I feel a little odd about it. I don't listen to it very often and it's not even my favorite Beatles album. I couldn't quite figure out why, but maybe Aimee Mann is right and it's simply a case of burnout.

Regardless, Happy Birthday, Sarge!

OK, so I don't exactly live out in the middle of nowhere, but I am far enough off the beaten path that some wildlife meanders around every once in a while. One has taken up residence off my back porch, turning a drainage pipe/tube into home:

THRaKaTTaK, by King Crimson (1996): How can you possibly not like an album with a song titled "Mother Hold the Candle Steady While I Shave the Chicken's Lip"? If the song titles appear to have been given more creative energy than the tunes, that's how. On Crimson's tour supporting the album THRAK, the band engaged on nightly improvs, using the title track as a jumping off point. Sometimes more than once per night. A couple of years later, Fripp & crew got the bright idea to take several of these improvs and stitch them together between "THRAK" bookends to produce this album. What's in between is not for the faint of heart or, to be honest, all that interesting to my ears.

Think Like a Mountain, by Ritual (2003): I have no earthly idea why I bought this disc in the first place. I don't remember reading a glowing review, nor do I remember seeing the band talked up around the 'Net. Regardless, I'm really glad I picked it up, as it sounds unlike anything else in my collection. Although part of the Swedish prog scene, on this album (at least), Ritual explores their folkier side, utilizing lots of acoustic tones and various "ethnic" instruments. Highly recommended, particularly the opener "What Are You Waiting For?" and the closing run from "On" to "Off."

One of the arguments made by some anti-death penalty advocates is that life in prison is an infinitely more punitive sentence than death. It forces a killer to live with his crime every day for years upon years, coupled with the knowledge that he will never again see the light of day. Along those lines, a group of lifers in Italy - 310 of them - are begging for the government to bring back the death penalty and execute them:

The letter they sent to President Napolitano came from a convicted mobster, Carmelo Musumeci, a 52-year-old who has been in prison for 17 years.

It was co-signed by 310 of his fellow lifers.

Musumeci said he was tired of dying a little bit every day.

We want to die just once, he said, and "we are asking for our life sentence to be changed to a death sentence".

It was a candid letter written by a man who, from within his cell, has tried hard to change his life.

He has passed his high school exams and now has a degree in law. But his sentence, he says, has transformed the light into shadows.

He told the president his future was the same as his past, killing the present and removing every hope.

An anecdote isn't evidence, of course. But it's pretty strong support for the idea that the "life is worse than death" argument isn't just some sort of philosophical BS.

Via Volokh Conspiracy comes a story from The Boston Globe about yet another situation where someone's "anonymous" blogging comes back to bite them in the ass in the real world. In short, a Boston area pediatrician was sued for malpractice after the death of a 12-year-old patient. The doc maintained a blog, under the pseudonym "Dr. Flea," on which he eventually began discussing his malpractice trial:

In his blog, Flea had ridiculed the plaintiff's case and the plaintiff's lawyer. He had revealed the defense strategy. He had accused members of the jury of dozing.

* * *

Elizabeth N. Mulvey, the lawyer who represented [plaintiffs] Vinroy and Deborah Binns and unmasked Lindeman as Flea, said she laughed when she read a posting at the start of the trial in which Lindeman nicknamed her Carissa Lunt, noticed that she bit her fingernails and mused, 'Wonder if she's a pillow biter, too?'

The discovery of Flea's writings led to a dramatic courtroom confrontation:

As Ivy League-educated pediatrician Robert P. Lindeman sat on the stand in Suffolk Superior Court this month, defending himself in a malpractice suit involving the death of a 12-year-old patient, the opposing counsel startled him with a question.

Was Lindeman Flea?

Flea, jurors in the case didn't know, was the screen name for a blogger who had written often and at length about a trial remarkably similar to the one that was going on in the courtroom that day.

In his blog, Flea had ridiculed the plaintiff's case and the plaintiff's lawyer. He had revealed the defense strategy. He had accused members of the jury of dozing.

With the jury looking on in puzzlement, Lindeman admitted that he was, in fact, Flea.

The jury never got to figure out quite what was going on, as Flea quickly settled for an undisclosed sum. Remember, kids - what you write on the Internet is there forever and if you write something stupid, it will come to hunt you down.

Curious about what exactly Flea wrote? Sure you are - indulge your curiosity here.

Tarkus, by Emerson, Lake & Palmer (1971): If any album captures ELP's ability to get it so right and so wrong all at the same time. As Bob notes in the Ground & Sky review, the title track, sprawling across the entire first side back in the LP days, is probably the band's high water mark. Side two, on the other hand, is a grab bag of mostly forgettable shorter cuts. I like "Jeremy Bender," sort of a companion piece to Trilogy's "The Sheriff" (the two got put together live), that's there and gone in under two minutes. But the rest, eh, I can safely never hear again. And I won't, until next year!

There's a quote, attributed to Ronald Reagan, that goes something like this: "Hello. I'm from the federal government, and I'm here to help." It's supposed to represent, in joking fashion, the ultimate conservative horror of a national government that would do more harm than good in trying to impose its will, even if it was motivated by good intentions. Given that basic tenet of the conservative faith on the domestic scale, why to people seem so surprised that other folks feel the same way around the globe?

I mention this because of this of the comments of outgoing British PM Tony Blair, as noted by Glenn Grennwald. Blair, who's been Duhbya's staunchest ally in the Iraq folly, just doesn't understand why the Iraqis aren't more grateful:

I was stopped by someone the other week who said it was not surprising there was so much terrorism in the world when we invaded their countries (meaning Afghanistan and Iraq). No wonder Muslims felt angry.

When he had finished, I said to him: tell me exactly what they feel angry about. We remove two utterly brutal and dictatorial regimes; we replace them with a United Nations-supervised democratic process and the Muslims in both countries get the chance to vote, which incidentally they take in very large numbers. And the only reason it is difficult still is because other Muslims are using terrorism to try to destroy the fledgling democracy and, in doing so, are killing fellow Muslims.

What's more, British troops are risking their lives trying to prevent the killing. Why should anyone feel angry about us?

That's Blair, from a column in this past weekend's Sunday Times of London.

What Blair fails to realize is that the American-led occupation of Iraq has not made their lives better on a daily basis. In fact, for many it's worse than during the days of Hussein. The Iraqis don't view as as liberators as the same way, say, the French did in World War II because they weren't under the heal of another foreign power. Power could be returned to the rightful French government life could return to normal. In Iraq, there was no rightful government to put back in power. We went in and kicked over Saddam's ant hill in a way that made daily life for many Iraqis much worse.

In addition, as Greenwald points out, the "we're here to help you form a democracy" rings a bit hollow from a government who is best buds with several of the regions other despotic leaders.

A couple of weeks ago I blogged about Lou Dobbs's complete lack of veracity during his current anti-immigrant pogrom. Today, the New York Times examines the issue and Dobbs's lack of will when it comes to admitting he was wrong.

Of course, he has never acknowledged on the air that his program presented false information twice. Instead, he lambasted the officials from the law center for saying he had. Even yesterday, he spent much of our conversation emphasizing that there really were 7,000 cases in the leprosy registry, the government’s 30-year database. Mr. Dobbs is trying to have it both ways.

I have been somewhat taken aback about how shameless he has been during the whole dispute, so I spent some time reading transcripts from old episodes of 'Lou Dobbs Tonight.' The way he handled leprosy, it turns out, is not all that unusual.

In other words, Dobbs has a history of shading the truth when gets a target in his sights. Looks like CNN has found a Bill O'Reilly clone after all.

Tales from the Big Bus, by Fish (1997): After the excellent Sunsets on Empire (produced in collaboration with Porcupine Tree's Steven Wilson), Fish embarked on an extensive European tour that was documented on CD and DVD. The CD is a semi-complete (no encores) recording of the concert in Koln, Germany, complete with amble between song banter from Fish, some of it in German. Missing, unfortunately, for copyright reasons was the show's intro, delivered by none other than Lisa Simpson (Yeardly Smith is a Fish fan). The sound quality isn't great, but it does give you a good feel for the gig, as Fish gets the crowd eating out of the palm of his hand. He injects some of the Sunsets material, "Jungle Ride" in particular, with an extra level of urgency and emotion that really makes it shine. The big Marillion-infused medley at the end of disc 1 is nice, but a little rough.

The companion DVD, of sorts, was recorded in Poland for broadcast on Polish TV. Musically it's very similar, but the between-song banter is almost completely gone, either through editing or Fish's concession to a less bar-bound crowd.

A trio of religious lunacy around the globe:

• He is risen! The spirit of Jerry Falwell lives and has apparently moved to Poland, where a government-appointed children's "rights" watchdog is taking aim at the Teletubbies. 'cause, you know, they're gay:

  In comments reminiscent of criticism by the late U.S. evangelist Jerry Falwell, she was quoted as saying: 'I noticed (Tinky Winky) has a lady's purse, but I didn't realize he's a boy.'
  
  'At first I thought the purse would be a burden for this Teletubby ... Later I learned that this may have a homosexual undertone.'

• Over at Orcinus, Sara has the scoop on a new Christian action figure - Bibleman!

  His armor includes the Helmet of Salvation, the Belt of Truth, the Breastplate of Righteousness, the Shield of Faith, and the Sword of the Spirit, which is the Word of God.

  Codpiece of Corruption sold separately, apparently. When will Hollywood come calling and make Bibleman - The Motion Picture?

• Last, but certainly not least (well, maybe so), last week the New York Times did a review of the new Creation Museum in Petersburg, Kentucky.

  But step a little farther into the entrance hall, and you come upon a pastoral scene undreamt of by any natural history museum. Two prehistoric children play near a burbling waterfall, thoroughly at home in the natural world. Dinosaurs cavort nearby, their animatronic mechanisms turning them into alluring companions, their gaping mouths seeming not threatening, but almost welcoming, as an Apatosaurus munches on leaves a few yards away.

  Rumor has it that the museum bookstore sells the complete DVD collection of The Flintstones as specially discounted educational aids. More snark here.