Saturday, June 15, 2002

THE ONLY REASON I link to this Slate piece on John Gotti is because of the following tale of his kids dining out:
The most shocking thing I ever learned about Junior concerned his dining habits. His sister once told me about a visit they made to Illinois to see their father in prison. They were on the road and hungry, and she suggested Italian, or a steakhouse. "But John says, Cracker Barrel," she told me. "I said, 'What's Cracker Barrel?' He said I'd love it. So we get there, and all the furniture and everything is wood. Then he said the chicken and biscuits are really good. Chicken and biscuits? I said I was hoping for a steak. He said they had a country-fried steak that was excellent. I said, 'Country-fried steak?' "
A roommate of mine once had a theory that dining choices could be found by looking for newspaper reports of gangland slayings at restaurants. "Mobsters don't know much, but they know good eating," the hypothesis went, more or less.

In any event: I once found myself working on a case in none other than Marion, Illinois, where the federal maximum-security prison that held Gotti was. And, for lack of alternatives, we ate at the local Cracker Barrel, perhaps the very same one that Junior and Victoria Gotti dined at. I might even have ordered the country-fried steak. I can't say that I'd go out of my way to eat there again.

And, finally, just to show the interconnectedness of all things, I'll note that on the plane ride back, the partner on the case borrowed my copy of Darwin's Dangerous Idea and never returned it.
Last night, U.S. District Judge Melinda Harmon issued a crucial ruling in the case, one that appeared to give the jury permission to convict the accounting firm on an obstruction of justice charge even though the individual jurors differed as to which Andersen employee broke the law.
Musil has covered the debate fairly well from a layperson's view of the defense standpoint. Judging by the press reports, the prosecution had the better of the argument on this one; no case was directly on point, but the precedents were closer to the prosecution's position and I wasn't persuaded by the press coverage of the defense arguments distinguishing those cases. (You'll note my qualifiers: as an ancient Confucian saying goes, lawyer who relies on press for coverage may be chilled by legal winds. Well, if Confucius didn't say it, he should have.) The issue will be taken up on appeal, and the judge preserved the issue for appeal in a way that she wouldn't have if she ruled in the defense favor and the jury acquitted. It's up to the Fifth Circuit now.

I have to disagree with Musil that the Andersen attorney should have anticipated this issue in the original jury instructions and caught the prosecution unaware. The fact that the precise legal situation is unprecedented is strong evidence that the instruction shouldn't have been anticipated, but, more importantly, the prosecution would not have been unaware of what Andersen was doing. Proposed jury instructions are typically submitted on individual sheets of paper -- the instruction on top, the supporting authority on the bottom. Any non-standard instruction (i.e., one outside the published "pattern" jury instruction books) would have needed supporting case law, and Andersen's problem pre-deliberation would have been as it was the same post-deliberation -- there would be no precedent on point, the prosecution would have discovered this and challenged the instruction, and the judge would not have given it.

I also have to disagree with Musil that Duncan's attorney's advice has been demonstrated to be facially bad. Duncan was faced with a classic prisoner's dilemma, and one with three co-defendants no less.
1971 SOVIET WEAPONIZED smallpox outbreak.
THE LEAD SPEAKER at the conference held by the anti-Semitic loonies at the Institute for Historical Review will be Joseph Sobran, speaking on the "Jewish question." I don't know if any newspapers still use Sobran as a columnist, but it's long past time to relegate him to David Duke territory. (Any fantasy about the IHR's true intentions can be dispelled by noting that their top four speakers are speaking about "the Jewish question," Croatian persecution of Germans, the Jewish role in the slave trade, and an "Arab mystery speaker" on the Middle East. That's a bit beyond the supposed scope of research into the Holocaust.)

Incidentally, the speaker on the Jewish role in the slave trade is Wellesley's Tony Martin, whose official Wellesley biography brags that his latest book is called "The Jewish Onslaught." (That last page, to no one's surprise, is a Nation of Islam web site.) I'm curious if Wellesley would tolerate a Jewish professor speaking of blacks in the same way at a anti-black conference, but I guess we all know the answer to that. Wellesley does claim to "thoroughly investigate all reports of...hate speech directed towards...Jews," though it's not clear from their web site whether they're a free speech campus or a campus that selectively enforces hate speech rules.

Friday, June 14, 2002

[Evolutionists] are constantly appealing to hypothetical, unobservable processes like prehistoric co-optation (e.g., saying that various components of the flagellum might have evolved for some other purpose, and then later were co-opted into the flagellum).
(The flagellum, of course, is one of Michael Behe's bogus examples of "irreduceable complexity.")

This is putting the cart before the horse. No one claims that evolution is a fact because there's a theory of how the flagellum evolved. We know evolution is a fact because of the billions of pieces of other evidence supporting evolution, from which we can make inferences about possible routes by which the flagellum evolved that are consistent with what we know about evolution. The fact that we can theorize evolutionary pathways for flagella demonstrates that the existence of flagella does not falsify evolution. To my knowledge, no one has claimed that any of these theories is the one true theory of how flagella developed. What we do know is that it is virtually certain that flagella evolved, because we can safely infer this from the fact of the common ancestor and the fact that every other observable life form evolves. (I'm not a flagella expert, so I may be understating the degree of evidence of flagella evolution.)
EUGENE VOLOKH has a good post on how the Miranda perhaps constrains civil authority from questioning terrorists in a way that it doesn't for military authority. It's not clear that this is entirely true; to the extent the United States is applying the Geneva Convention to detainees, the Convention prohibits the use of coercion to obtain other than identifying information of prisoners of war. (Of course, the Geneva Convention only applies to prisoners of war, and al-Qaeda doesn't fit in that category, as they neither carry arms openly nor conduct operations in accordance with the laws and customs of war.)

Going unstated is the interesting unintended consequence of the Miranda rule: if applying civil authority to someone creates undesirable results because of the application of Miranda, it creates attempts to avoid the application of civil authority and the expansion of military authority. Miranda may turn out in the long run to endanger civil liberties more than its absence did.

As Professor Volokh has noted elsewhere, this has been an unfortunate consequence of the exclusionary rule:
When judges know that finding a search to be unconstitutional may well let a criminal go free, they err on the side of not finding such unconstitutionality. But if the case isn't about exclusion of reliable evidence, but about making the police pay damages, the incentive to find the search constitutional is smaller.
ALSO VIA Johnson: the latest batch of Saudi satellite television to be broadcast throughout the Middle East. Highlight: a three-year-old celebrated on a talk show "Muslim Woman Magazine" for her "true Muslim" education, as exhibited entirely by her rants about the need to kill Jews. But I thought "Islam" meant "peace"?
Jews are systematically excluded, or have been on occasion systematically excluded by the U.S. government, from working in Saudi Arabia. I have a long quote from a former service officer about how this is done. A 'J' is put in front of certain people's names not to go to Saudi Arabia.

There's the case of a contractor for the Defense Department that explicitly said that no Jews or Jewish-named personnel would be sent as part of a team to Saudi Arabia. The U.S. government-the Defense Department was breaking U.S. government laws in not sending Jews to Saudi Arabia. There are many other such cases.
-- Daniel Pipes' Congressional testimony.
(via Welch and Johnson)

But wait, there's more:
One finds over and over again that Americans in position of authority are acquiescing or even preemptively acquiescing to what they imagine the Saudis would like. An answer to why this is happening can be found in a statement by the current Saudi ambassador to the United States, Prince Bandar bin Sultan.

He said the following, and this was quoted in the Washington Post of the 11th of February, 2002. He boasts of his success cultivating powerful Americans who deal with Saudi Arabia. "If the reputation then builds that the Saudis take care of friends when they leave office, you'd be surprised how much better friends you have who are just coming into office."

The heart of the problem is a very human one. Americans in position of authority bend the rules and break with standard practice out of personal greed.

Thursday, June 13, 2002

SOMETIMES Ted Rall is accidentally funny.
ENTERTAINING INTERVIEW of Richard Posner by Brian Lamb. (via Bashman)
COLLABORATION CAPITULATION. I hate to vindicate Max's sophomore-psychology strong-arm tactics and pick up the gauntlet.

Not nearly as much as I hate being third-most anything, though.

A fitting first post, I think, is to clean up my introduction. Max neglected to mention that the reason I'm having such internet tsuris is because I'm stuck in an awkward corner of the world, one in which a journalist gal -- or indeed, a jockey -- can only marvel at such front-page above-the-fold gems as this. (And I don't mind telling you, I don't buy that "unhygienic food tidbits" nonsense for a minute.) My wrong, wrong Asia-centric politics consist of active support for evil, world-dominating organizations -- and, honestly, Max, if I'm not a real person, who's writing my clippings? Look lively, folks; there may a quiz.

We now return you to your regularly-scheduled case law programming.

UPDATE: The link to Mike the orangutan and his very special disease has been fixed. We think.
INSTAPUNDIT wonders when litigation delves into extortion. Eugene Volokh touched on this a bit, but neither mentions the Supreme Court precedent in the area.

In Professional Real Estate Investors v. Columbia Pictures, the Supreme Court held that access to the courts through litigation was protected by the First Amendment unless it was "sham" -- i.e., "objectively baseless" ("no reasonable litigant could realistically expect success on the merits") and subjectively meant to injure the other party. PREI was an antitrust case, but the same reasoning has been held to apply to other tort suits.

We'll know more about the reach of PREI v. Columbia Pictures later this month when the Supreme Court decides BE & K Construction Company v. NLRB. In the underlying case, the Sixth Circuit limited PREI to antitrust cases brought over litigation, and held that liability could attach in a labor law proceeding when a case is merely unmeritorious. There's thus tension between the Sixth Circuit's decision and the Supreme Court's earlier decision that an unmeritorious, but colorable, case is protected by the First Amendment.
SPEAKING OF SEIPP, her tale of Hollywood assistants reminds me of the former network executive I dated who'd get upset at me when I wouldn't leave work early to help her kill a spider.
CATHY SEIPP ON Hollywood real estate. She repeats the panic-room tales, but I'm still convinced these are mostly urban legends.
I'M SURE IT'S a source of vast disappointment to Josh Marshall that he's at his most entertaining when talking about the Chandra Levy murder. All sorts of good stuff on his site, including a first-hand visit to the crime scene, and the following commentary in response to those who thought he was too quick to criticize the D.C. police:
[E]ven if we assume that the human tibia found yesterday is not Chandra's, can't we still agree that it probably would have made sense for the cops to retrieve all other readily available human tibias in the immediate vicinity just to see if they might belong to Chandra?
LILEKS, who is usually more of a day-to-day journaller, does a fairly thorough investigation of Caribou Coffee, complete with a passel of links. We'll make him a full-scale blogger yet.
DEREK LOWE hits the Weekly Standard appropriately hard for being willing to peddle quackery.
COLLABORATION STATION. Please also welcome to "The Sound and Fury" the inimitable Eric Mulkowsky as the third member of our jolly gang. Long-time readers might remember Eric as the unfortunate soul whose brother-in-law's job with a distant dot-com subsidiary of ABC disqualified him from an appearance on "Who Wants To Be A Millionaire?" Eric is the rare Sound and Fury blogger who has the courage of his convictions to use his real name in places other than the New York Times. Thus, ardent googlers may see for themselves his stellar credentials, even if Eric has forbidden me to comment on his sex appeal. I've had the privilege of knowing Eric for close to fifteen years now, and look forward to his posts on this site. (Especially if they shame Julia Z. into getting a real internet connection and posting occasionally to avoid being the third-most active on the site.)
I'VE BEEN HAVING an e-mail debate with an otherwise intelligent reader who simply had a mental block when it came to processing evidence of evolution. After I parried various creationist claims, it turned into a debate over whether the existence of punctuated equilibrium theory doomed Darwinism. I daresay that I should declare this as a victory when the battleground of the debate turns into the question whether a layperson understands the implications of Stephen Jay Gould's writings on Stephen Jay Gould's speciality better than Stephen Jay Gould does. More importantly, it's a huge logical leap from the proposition "The paleontological evidence fails to support gradualism" to "The paleontological evidence is inconsistent with evolution." This is especially true, given the advances of the last quarter century, where paleontologists have consistently been able to use the fossil evidence to model gradual species-to-species evolution when they have been willing to spend the man-years to focus on a handful of genera. As Dennett effectively showed in "Darwin's Dangerous Idea," Gould et al. were forced by the evidence to substantially narrow their claims for the implications of their punctuated equilibrium theory.

All this said, I was amused when I ran across the following quote of Darwin in Dennett's work:
The long periods during which species have undergone modification... have probably been short in comparison with the periods during which they retain the same form.

Wednesday, June 12, 2002

IT'S ALWAYS HEARTENING when a cool site links to me, and the monthly Smarter Harper's Index--which is what it sounds like--is just such a site.
TONY PIERCE takes mild issue with my defense of the Mike Tyson verdict. In the process, he refers to Vincent Fuller, the attorney hired by Don King who defended Tyson and lost, as a "tax attorney," perhaps because of his successful defense of King in King's criminal trial for alleged tax fraud.

Vincent Fuller's most famous case was his victory in United States v. John W. Hinckley, Jr. He was a criminal defense attorney, if a "white-collar" criminal defense attorney, with Williams & Connolly. Suffice it to say that President Clinton turned to the same law firm when he found himself in legal hot water.

Fuller's 2-1 record in trials with national publicity compares favorably to, say, F. Lee Bailey (2-2, 3-2 if you give him credit for O.J.).

Tuesday, June 11, 2002

DAVID NIEPORENT takes issue with my death penalty reasoning.
Of course most people prefer life imprisonment to an execution. But that's answering a question that wasn't asked. That's the choice faced by someone who has already been caught, not the choice faced by a potential murderer (with the exception, perhaps, of those who are already in prison for life.)
(1) I'm glad David agrees that most people prefer life imprisonment to an execution. There exist death penalty opponents who suggest the opposite, however, so the point remains non-trivial.

(2) I'm not sure what David means by the rest of his criticism:
(a) If David is implying that the population of prisoners on death row and imprisoned for life has a different utility curve than the population of people who might be deterred at the margin by the death penalty, that's not a ridiculous position, but, given the magnitude of the preference, it's hard to argue that potential murderers would have that much less preference for life imprisonment when presented with the choice. Especially since the population of potential murderers at the margin, by definition, would be more likely to view execution as a substantial detriment than those who murdered anyway, and got caught and sentenced.

(b) If David is, instead, implying that people on death row are faced with a starker set of alternatives than potential murders, this is indeed true. But I don't think it's a difficult leap of logic to say that one who prefers life imprisonment to execution would also prefer the state of the world where the ratio of the percentage chance of facing life imprisonment to the percentage chance of facing execution is higher rather than lower, and that executions would, again, deter potential murderers at the margin.
REMEMBER JOHN DOE #2? A disturbing juxtaposition. Perhaps coincidental -- I look like John Doe #2 on a bad hair day. (On the other hand, I don't look like the dirty bomber, an interesting example of how "looks like" is a non-transitive function.)
THE SOUND AND FURY GOES COLLABORATIVE. After my poor showing in the "Sexiest Bloggers" poll, it became clear that this weblog needed to up its oomph factor. We therefore introduce Julia Zlotnick, who worked her way through journalism school as a nude model for her university's art classes, and now claims to be a jockey, something we could not verify at press-time. Julia's not only better-looking than me, but she's smarter than me, too. She makes up for it by having politics that are wrong wrong wrong. Julia writes:
Honestly, though, I don't know when or how often I'll contribute. I'm much more a screed-writer than a linker. (Though to be fair, you tend that way, too.) Plus, the matter/anti-matter dynamic of our politics might destroy the universe as we know it.
We look forward to Ms. Zlotnick's first post.
JUDEAN PEOPLE'S FRONT DEPT. Yesterday, the Supreme Court granted certiorari in Washington Legal Foundation v. Legal Foundation of Washington.
BUT PIERCE IS dead wrong when he says Mike Tyson was unfairly convicted of rape. Tony's tale leaves out the medical evidence of non-consensual sex, that Tyson immediately fled Indianapolis within hours of the rape (despite the fact he had yet to make the personal appearance he was in town to make, leaving cash and personal belongings in the hotel), and that Tyson was caught changing his story on the stand. The "lube" that Pierce refers to (via a link to an old CNN summary of the case) was non-consensual oral sex, back in the pre-Clinton days when those two words weren't spoken together on television. Perhaps it was injudicious for Desiree Washington to ask to use the toilet in Tyson's hotel room after a late night on the town, but a rape is an awfully high price to say that she should pay for that. For all the claims that Washington was making a false accusation for money, she turned down an offer of a million dollars to drop the charges, and never did bring a civil suit.
TONY PIERCE MAKES A good case that Britney Spears lip synchs. Pierce doesn't think that Spears is that attractive, but then, I don't find Anna Kournikova half as attractive as the Williams sisters.
AT FIRST, the outrage "Best-of-the-Web" showed over an accused drug dealer who won a new trial when he pointed out that the jury pool contained too many last names beginning with "G" to be a fair trial seemed appropriate. But then I read the story itself.

1. The "new trial" was ordered before opening statements so that a new jury could be selected. It's not like the guy was convicted, and got off on a technicality.

2. The jury pool selection consisted of pulling in 400 people from Miami, and then picking letters from a bin until a pool of 38 or so people was selected, from which a jury was picked. So the 38-person pool was the letters "E", "G", "T", and "K," and thus disproportionately Hispanic because the selection was not completely random: the fact that Jose Gonzalez was picked for the pool made it certain that Pedro Gutierrez was also picked, as well as 19 other people with the last name beginning with "G," two thirds of whom were Hispanic (which has a disproportionate number of last names beginning with G.) Strikes me as a legitimate complaint about a faulty process that isn't random, and the Hispanic judge agreed.

Monday, June 10, 2002

WOW. Another spectacular photoessay by Lileks.
DOES THE DEATH PENALTY DETER? Sasha Volokh poses good questions. In my mind, the proof that it does deter (at the margins) is the habeas litigation levels in the United States. The ratio of convicted murderers on death row who litigate like the dickens to have a death penalty commuted to a life sentence to the convicted murderers who give up appeals and accept their execution must be at least 100:1. Even if you include suicides and indirect suicides by murderers who get into shootouts with police rather than surrender (though if you include death row and jailhouse suicides, you should also include the thousands of life-without-parole prisoners who don't commit suicide in the ratio), and discount some to account for the costlessness of death sentence appeals thanks to tireless "pro bono" efforts by attorneys to nullify the death penalty through litigation, the ratio is sufficiently huge to suggest that the vast majority of murderers prefer life imprisonment to an execution.
HOWARD BASHMAN points me to this Tony Mauro report on the latest Supreme Court Justice retirement rumors. (Retirements tend to come in June, at the end of the term.) As Mr. Bashman hints, Tony Mauro has accurately predicted twelve of the last two Supreme Court retirements.
HILARIOUS CLIP of a bad take of Orson Welles advertising frozen food. (via Treacher)
SASHA VOLOKH'S mention of Koko the gorilla reminds me that the claims for Koko, while popular, have been the subject of skepticism due to her trainer's decision to publish very little in the scientific literature and use of mostly anecdotal evidence. A vocabulary of a few hundred words and some prodding from a favorable partner is bound to produce some interesting "conversations" randomly, as Sasha's post demonstrates. An excerpt from an on-line "chat" is more telling, both in Koko's ability, and Penny Patterson's interpretative generosity:
Question: Koko are you going to have a baby in the future?

Koko signs: Pink
Patterson explains: We had earlier discussion about colors today.

Question: Do you like to chat with people?

Koko signs: Fine nipple.
Patterson explains: Nipple rhymes with people, she doesn't sign people per se, she was trying to do a "sounds like..."

Question: Does she have hair? Or is it like fur?

Koko signs: Fine.
Patterson explains: She has fine hair.

Question: Koko, do you feel love from the humans who have raised you?

Koko signs: Lips, apple give me.
Patterson explains: People give her her favorite foods.
Must I admit it? Okay: subject to falsification, I agree with Noam Chomsky. Quote that out of context!

On the other hand, I agree with Sasha that the often execrable Peter Singer got the best of Richard Posner in their Slate debate last year, but I suspect that was because Posner unilaterally decided the answer was indeterminate and started to discuss a different topic.

UPDATE: Spaulding chips in.
JOHN GOTTI, who had the innocent John Favara murdered, apparently mugged and intimidated the innocent Romual Piecyk from testifying against him, and bribed a juror in a trial in which he was acquitted, is dead, saving U.S. taxpayers the burden of expense of further incarceration.
THERE'S ALWAYS something perversely entertaining about Hunter Thompson, and this interview on the 30th anniversary of "Fear and Loathing in Las Vegas" is no exception.
MATT WELCH has a good piece on Chomsky in the National Post.
PURSUANT TO THE Blog Mandatory Disclosure Act of 2002, please note that this is not the only kind of weblog out there. Professional driver on a closed course. Price does not include title, taxes, or fees.

UPDATE DISCLAIMER. Beam thought of the same gag before I posted, but I didn't see it until later.

Sunday, June 09, 2002

IT'S FASCINATING TO WATCH Dave Winer, Glenn Reynolds, and Matt Welch comment on a New York Times article before it's published. The interesting question is how many New York Times readers will get the true story from the horse's mouth after reading the piece in the Times.

And here's the story itself.