As life becomes increasingly difficult for most Americans, new avenues for entertainment open.  After all, there’s nothing that makes people feel better then knowing that someone else has it worse than them.

In yet another flash of genius, Fox has foreseen America’s need to find someone hurting even more than them and made it into a TV show!  It will be called, Smile, You’re Under Arrest .

“It is a reverse Punk’d,” says Fox President of Alternative Entertainment Mike Darnell. “Instead of the worst day of your life and then a joke at the end, this is the reverse. This is the best day of your life, and then we arrest you.”

How cool is that!  There’s absolutely nothing that sinks a man to the depths of misery better than puffing them up just to knock them down, down, down. 

Naturally, there will be some buzzkills and funsuckers whose purpose in life it make sure that no one else enjoys anything new and awesome.  These are probably the same guys who find nothing funny in people getting hit in the head with a fastball or flipping over on their ATV, like they show constantly on America’s Funniest Home Videos.  You know, mainstream, regular-guy humor of somebody else in pain.

Of course, it’s not like Fox will get to make a “star” out of just anybody.  After the incredibly funny set-ups, where they make the “marks” think they are about to be a movie star, or a supermodel, or a race-car driver, they all end the same way:

all the participants are revealed as officers of the law, and the criminal is apprehended (before signing waivers to let the footage be used in the show).

So here’s the really, really funny part of the show.  How many of these reverse-punk’d participants will sign waivers to become real-life TV stars on their way to jail?  You see, the only think better than “misery loves company” is “stupid loves company,” and this for sure will prove that these “marks” on TV are far stupider than the idiots who would watch this program.  And the viewing audience will feel good about themselves, making Fox “alternative entertainment” a true source of happiness to a select group of Americans.

As the markets burn, the CEOs deposit their bonus checks and the government keeps throwing billions of dollars at problems it won’t solve, one question remains unanswered:  What about the 94% of American mortgage holders who pay every month as they promised to do?  Screwed.

When the $700 billion bailout, the one we so desperately needed to stop the “meltdown”, was approved under the haze of fear of fiscal catastrophe, some of us said no.  Don’t do it.  It won’t help.  It won’t solve anything.  It’s $700 billion of our money in the toilet.  So now Hank Paulson, fear-monger in chief, admits he didn’t have a clue.  That Congress was clueless shocks no one.   What’s a taxpayer to do?

On Good Morning America, a panel of “experts” (which in TV parlance, means good-looking people of dubious qualifications) discussed what happens to the 94% of Americans who have mortgages in good standing.  That means that this entire mess is the by-product of 6% of Americans who bought homes and took mortgages that are behind or in default. 

It’s hard to imagine that the entirety of our economy is such a house of cards that it teeters on the brink of disaster because of a 6% failure rate.  In fact, it’s unlikely to be true, but rather that the rest of the economy was so heavily leveraged, dependent upon ever-increasing home values fueling ever-increasing consumer spending, that had their been no housing foreclosure crisis, but merely a substantial drop in consumer confidence sufficient to cut consumer spending by 50%, we would be in the same place anyway.

So all the discussion about how we need to stop foreclosures is a wrong.  All the discussion about how we need to increase liquidity was a scam.  We, the 94%, have been the victims of the most massive fraud in modern history, allowing the government and business to suck untold billions out of the economy, the government and our pockets, to prop up a wildly bad bet by business.

Yes, the micro-economic impact of foreclosures hurts our neighbors.  No, the massive infusion of cash isn’t going to fix their hurt.  Is stretching a 30 year mortgage out to 40 years going to help the unemployed mortgagee in default?  But the next $25 billion won’t stop bonuses from being paid.

When I challenged the propriety of the $700 billion bailout, I received a private email from a law professor who exclaimed that I didn’t “get it,” and insisted that “the facts” proved it was necessary, and the only way I could believe as I did was to reject “the facts.”  I’m still waiting for the email conceding that he was wrong and I was right.  I’m not holding my breath. 

Most people bristle at the idea of redistribution of wealth, the very words smacking of some commie conspiracy.  But when put in the context of a big lie, one easily sold because most of us lack any adequate comprehension of economics sufficient to make sense of any of this, we will readily accept it if the word “bailout” is used in its place. 

The entirety of our government’s plan to stop the economic bleeding is predicated upon a massive redistribution of wealth.  The wealth comes from the 94%, and our children, and our grandchildren, and will be given to financial institutions, automakers and any other corporate giant of sufficient weight.  A portion will be siphoned off the top to cover bonuses, junkets, shower curtains and cannibalism, particularly since our government “forgot” to impose conditions when handing over the check.  Hank Paulson feels just awful about that.

The balance will perhaps be used to pay down their bad bets and keep them afloat.  Eventually, the argument goes, they will hire back employees, loan out money, and the economy will be hunky-dory again.  In other words, the best we can hope for is to float these business failures back to the point where they can underpay low level employees, overpay top executives and grab as much from the consumer as we are willing to allow.  Return business to life as it should be.  Leave the 94 with the tab. 

It will all even out in the end, we’re told.  Actually, they aren’t even giving us that much, with the only promise being that without these infusions, it will be “much, much worse.”  Since it’s impossible to gauge something that doesn’t happen, you can’t lose with this argument.  No matter how bad it gets, it could always be worse, proving that they did the right thing to stop the worst from happening.  Whew, so confusing.

Back in September, 2008, the sum of $700 billion shocked and engaged a nation.  It was the central focus of our news and our concerns.  Today, tossing around $25 billion seems like pocket change, with the public paying little attention.  We are defeated in one sense, and have placed our faith in the mantra of “change” to cure the disease and put us back on the road to easy street.  We are Americans!  We always expect someone else to fix our problems.  It’s the American way.

While I try my best not to be unduly harsh toward others, I similarly try to remain rational.  There is nothing rational about allowing a bunch of experts who have proven themselves wrong at every turn from continuing to push a scheme that shows no chance of success.  It hasn’t stemmed unemployment.  It won’t stem foreclosures for those who don’t deserve foreclosure.  It will make the 94% pay, both for the 6% and for the losing bet that business could act foolishly forever.  And we will happily do so out of fear and ignorance, the two forces that allows us to be played like fools.

American is all about business. We’re nothing without it.  It doesn’t matter who owns the White House or Congress.  This is about a fundamental abdication of the concept of responsibility for mistakes and failure.  The verdict is that we, the 94, will pay the price and get nothing in return. 

In my humble opinion, this is a lousy deal. and I urge you to reject it.  I’m prepared to bet that the invisible hand will do a better job allocating resources.  I’m prepared to be that it won’t do worse.

In one sense, this is a sign of responsibility.  In another, this melding of technology with quasi-lucidity just went over the top.  As reported by Carolyn Elefant, Avvo has come up with application for the iPhone that steps into a very murkey world, drunk driving.

So, let’s say that you’ve been laid off from your Biglaw job and you go out drinking to drown your sorrows (or celebrate your freedom). En route to your next destination, you get pulled over. So who are you going to call? Your ex-colleagues, most of whom have probably never seen the inside of a courtroom? Your mom? No worries — because if you have an iPhone, you have a lawyer. Avvo, a lawyer directory/ratings site just announced the launch of a new iPhone application, dubbed “Last Call” that suggests the names of top DUI lawyers in the area from the Avvo directory. 

But “Last Call” is more than an ugly excuse for marketing lawyers to drunk drivers.  The front end tries to inform first.  As described by Techflash :

Dubbed “Last Call,” the app lets users log the number of drinks they consume during a set period.  It measures those drinks — whether beer, wine or a cocktail — against a person’s gender and weight. If the blood alcohol level exceeds the legal limit, the “Last Call” service offers numbers for local cab companies.

If the driver chooses to drive anyway and gets nailed (or nails someone else in the process), then it provides the Avvo list of lawyers, and you better hope they got the ratings right.

Avvo CEO Mark Britton is very enthusiastic about this new application.

“Last Call is awesome because on the front end we can help you understand where you are in your alcohol absorption,” said Avvo CEO Mark Britton. “But, secondarily, if you have drunk too much and you need a taxi on the one hand or you have been picked up and need a DUI lawyer, you can get both of those in real time.”

I wonder whether some developer at Avvo field tested the concept at the local bar and grill, numerous times, before declaring it a winner?  There are many areas where this app could fail, from inputting error (hey, you’re drunk, right?) to claims of encouraging drunk driving by the false sense of security of knowing that a list of DUI attorneys is only a click away.  This is a far cry from “just say no.”

On the other hand, when the cop grabs your iPhone at the time of arrest and sees that you’ve used the application, input information that showed you to be intoxicated and drove anyway, even the best DUI attorney will have his hands full explaining that away.

This is a risky direction for Avvo, though Mark seems to understand this and has decided to move ahead anyway.

Avvo could be opening itself up to potential legal issues, but Britton said they put the proper disclaimers in place. A description of the service in the iPhone store says that “Last Call is provided for entertainment purposes only.”

Get that?  “Entertainment purposes only,” so if you can’t find a decent movie to watch, get drunk and play with Avvo’s Last Call for amusement.  It’s always amusing as well to contrast the marketing with the legal disclaimers, as it would be wrong to expect the app to serve the purpose for which it’s sold.  No detrimental reliance here.  It would be wrong.  Wouldn’t it, Mark?

Certainly, Avvo’s venture into the hazy world of drunk driving is more consistent with its stated purpose then including paid lawyer advertising on its website in direct conflict with its claims of free lawyer marketing to benefit consumers.  And I wouldn’t be at all surprised to find other apps to follow, “Murder Tonight,” “Dime Bag,” “Hey Kid, Want Some Candy?”  There are as many possible applications as there are crimes.  Leave it to American ingenuity to capitalize off our tendency to violate the laws we love so much.

Is this a good trend?  It’s not entirely clear that it’s not, though it seems like it’s fraught with problems, negative policy incentives and unintended consequences.  On the other hand, as some drunken kid stumbles out of a bar toward his BMW (hey, this is only available on the iPhone), what are the chances that the first thing running through his mind is, “Shouldn’t I download an app to tell me if I’m drunk and provide the names of local DUI lawyers?”  And even if he did, what are the changes he would download some Mario Brothers game instead, fingers missing the button by mere millimeters?

But assuming that anyone does use this app, the day will come when a drunk will drive, an accident will happen, a death will occur, and Avvo’s “Last Call” will figure prominently.  What follows is anyone’s guess.

Still, there are some aspects of this app that could be helpful if used properly and under the right conditions.  Now if only the app would have a button that asserts the right to remain silent and refusal to take a field sobriety test. 

This seemed like a no-brainer from the word go, but somehow it required the Supreme Court to rule on the idea that chemists in Massachusetts shouldn’t be required to testify, but can just mail in their conclusions.  So what can possibly be at issue in Melendez-Diaz v. Massachusetts?

Cut from the oral argument via SCOTUSBlog :

Kennedy initially saw a potential problem if the Court were to answer yes to that question.  He foresaw ”a very substantial burden” on the prosecution and on the courts, and told counsel advocating for confrontation that he was significantly underestimating the impact.  But, as the hearing moved along, Kennedy saw as “a very important point” that California has not experienced such a burden and “gets along all right” with summoning lab analysts to the stand with some frequency.

So the best Justice Kennedy can come up with is that the California experience was so burdensome?  Burdensome?  Is that all there is to the confrontation clause?  And if California found it to be a burden, would that command a different result? 

Austin criminal defense lawyer, Jamie Spencer, whose keyboard is finally back from the cleaners, links to a anonymous PD blog,  Preaching to the Choir, with the crystal clear post title, You have the right to confront your accuser, as long as it’s not too inconvenient.

There is no question whatsoever that the testimony of the chemist (or any other technician who offers a scientific identification of something that is intended to satisfy an element of a crime) may well be subject to critical cross-examination.  There are times when this witness, like any witness, isn’t at the vortex of a dispute, and when a stipulation may suffice rather than a warm body.  But that choice belongs to the defense counsel, who alone knows what he plans to dispute and how he plans to do so.

What is shocking, if not laughable, is the overt concern over inconvenience in the process of convicting and imprisoning people.  Yes, it is inconvenient.  It can be very inconvenient.  Cops are taken off the street.  Judges, prosecutors and regular citizens are tied up for days, sometimes weeks or months, in the process.  It is supposed to be inconvenient. 

Let’s come to grips with this whole inconvenience thing now:  The most convenient way to address the criminal justice system would be to let cops arrest and, based upon our confidence in their intelligence and good will, punish them.  Cops should be able to stop at will, search at will and arrest at will.  That, by far, would save us a ton of dough and expedite everything.  That, amigos, is convenience.

What?  You’re no more confident in police than Sarah Palin is in her brother-in-law’s devotion?  Well, now you’re making problems.  Once we open the Pandora’s box of testing allegations by confrontation, why should any involved class be different than any other?  We know chemists have, on occasion, lied and manipulated truth.  We know science isn’t as perfect as it wants to be.  We know that people get things wrong.  But we wouldn’t know any of this but for a system that allows us to test the allegations through confrontation.

And it’s inconvenient. 

Jamie, in his concluding thoughts on the Preaching to the Choir post, writes:

Sarah says she is “confident that the Court will conclude that a decision in favor of the defendant in this case won’t unduly burden the 50 states”. I hope so, but I’m not sure I share her optimism.

While any outcome that requires the 50 states to put warm bodies on the stand to be confronted is better then nothing, Jamie’s concluding twist on Sarah’s rationale fails to satisfy me at all.  Who cares if being compelled to subject the government’s witnesses to confrontation is an inconvenience?  If this becomes the test for confrontation, what happens next time when it is really, really inconvenient to put a witness in the chair?

I try these cases.  I can’t cross a piece of paper.  I can’t cross hearsay.  Without confrontation, scribble anything you want on a piece of paper and it is beyond challenge.  Inconvenience has nothing to do with it.

This would have been a particularly fine opportunity for Mr. Crawford himself, Nino Scalia, to stand up and scream “Baloney!  Nowhere in the 6th Amendment does it say, ‘unless it’s convenient,’ and I’m not sticking my own words like I did in Heller into the middle of the 6th Amendment!” 

Smack dab on my twitter screen (don’t ask) was this gem from Walter Olsen :

GM-Chrysler merger = idea that pair of boozers can fix drinking problem by getting married to each other

Funny in its own right, it’s painful in its truth.  As someone who spends a decent amount of time at classic car shows, The harsh truth is that the major American carmakers haven’t come up with anything that grabs the heart and mind since 1969.  Apologies to the hippy hoppers, but the Escalade is a tin can/diamond encrusted necklace, meant for those who drink Crystal straight from the bottle because it’s the most expensive wine on the menu. 

Tom Friedman’s op-ed in the New York Times reminds us of the arrogance of Detroit, knowing full well that they were getting their butt kicked by, well, everyone else and still pounding the table as if America ruled the roads. 

How could these companies be so bad for so long? Clearly the combination of a very un-innovative business culture, visionless management and overly generous labor contracts explains a lot of it. It led to a situation whereby General Motors could make money only by selling big, gas-guzzling S.U.V.’s and trucks. Therefore, instead of focusing on making money by innovating around fuel efficiency, productivity and design, G.M. threw way too much energy into lobbying and maneuvering to protect its gas guzzlers.

Naturally, Friedman answers his own question.

Nothing typified this more than statements like those of Bob Lutz, G.M.’s vice chairman. He has been quoted as saying that hybrids like the Toyota Prius “make no economic sense.” And, in February, D Magazine of Dallas quoted him as saying that global warming “is a total crock of [expletive].”

This gives a totally new meaning to “like a rock.”  I think “like a brick” would be more appropriate, as in “thick as a brick.”  It’s been decades, as in almost 4 of them, since these geniuses from Detroit showed any imagination.  If only their cars matched the effort of their advertising.

These are the guys taxpayers are being asked to bail out.

The shame is that the ugliness of our ever-decreasing industrial base only comes to the surface when the rest of the economy hits the fan.  It’s not that it wasn’t widely recognized, but that mumbling and grumbling isn’t the equivalent of doing something about it.  Guys like Lutz, secure in his stock options, don’t need to have vision once they are firmly entrenched.  The question I have never been able to figure out is how a Board of Directors would let someone like him in the room?  Did they think he was their go-to guy?

So now we’re left with the problem of another bail-out (remember Chrysler?) to shore up the auto industry and avoid the emanations and penumbras of its collapse.  Sure, a collapse will cause devastation, but will a cash infusion fix things?  Perhaps they are just hoping that it will tide them over until better days reach our shores.  But when they get here, GM, Ford and Chrysler still won’t be able to match the quality and price of a Hyundai or the engineering and thrills of a BMW.

Friedman, with tongue close, if not exactly in, to cheek suggests that a condition of cashing the $25 billion check is to put someone new in charge:

Lastly, somebody ought to call Steve Jobs, who doesn’t need to be bribed to do innovation, and ask him if he’d like to do national service and run a car company for a year. I’d bet it wouldn’t take him much longer than that to come up with the G.M. iCar.

You can bank on it.

Memo to President-Elect Obama:  If you want to save a moribund industry plagued by lack of imagination and vision, don’t turn to a lawyer. 

Who might Obama get to lead such an effort? One of our very own: Georgetown law prof Dan Tarullo, a top Obama adviser on trade, has been appointed to lead the auto-company transition efforts, reports the WSJ.

I can see it now, a co-branded GM/Ford/Chrysler camel with wheels.  As much as I admire lawyers and lawprofs doing certain things, invigorating the auto industry is not one of them.  Just shoot me now.

No, this isn’t a rant on the evils of Prop 8, but on the synergies available in the blawgosphere for those who have a keen eye and an open mind.  Mark Draughn, renown the world over as WindyPundit, has put out the welcome mat for a new addition to the family, or expanded the Empire as Windy puts it.  His new co-blogger is none other than Joel Rosenberg, a/k/a J-dog.

I’m pleased to announce the expansion of the blogging team here at Windypundit with the addition of Joel Rosenberg (yes, that Joel Rosenberg). Joel is a firearms instructor from Minnesota, where runs the Twin Cities Carry Course. Online, he posts to his Open Sites LiveJournal page and operates the Twin Cities Carry Forum.

Regular readers here will be very familiar with J-dog, whose thoughtful and provocative comments have raised everyone’s consciousness, especially mine.  And, I hesitate to note, has changed the face of fashion for those of us fortunate enough to be worthy of the description “pear shaped.” 

Windy’s take on Joel’s commentary really nails what I most admire about him as well.

I first noticed Joel in the comments over at Simple Justice where I was struck by the fact that even though he clearly had an emotional investment in the issues, he was willing to accept the possibility that he could be wrong, willing to consider alternative explanations, and willing to believe that despite their errors, his opponents were sometimes acting with good intentions.

While Joel left no doubt when he disagreed about something, his manner was such that it was impossible to be miffed by it.  Indeed, if you didn’t chuckle when you read Joel’s comments smacking you in the face, you likely missed the point.  Ever witty and self-deprecating, J-dog always brought some ideas to the table that made you reconsider.  It doesn’t get any better than that.

The Daring Duo have hit the ground running, with Windy busily documenting Obama Derangement Syndrome while Joel has a two-part diatribe about the joys of Evil Black Rifles and why criminal background checks are the anti-gun crowd equivalent of thinking highly of Sarah Palin. 

Since it’s been good for Joel’s business, training upstanding Americans how to shoot straight, one might think J-dog would be a little kinder to his benefactor, but Joel has never allowed shameful self-interest to stand in the way of his defense of the Constitution.  But the man knows his weapons.

If there’s anyone left who hasn’t put Windy on his RSS feed, do so today so you don’t miss anything these two have to post.  As soon as J-dog realizes that Windy voted for Obama (twice), all hell is going to break lose over there and I wouldn’t miss it for the world.  And I have no doubt that Joel won’t be able to restrain himself from letting his devotion to the Second Amendment spill over to some of the others.  I hear he’s pretty fond of the Ninth as well, and lord knows we can never get enough discussion about the Ninth.

Congratulations to Mark and Joel, and I wish your joint venture great success.

How low will it go?  We may soon have a new answer as prosecutors may seek to try an 8 year old boy for the murder of his father and a boarder, according to the ABA Journal.  The New York Times describes the murder:

An 8-year-old Arizona boy charged with premeditated murder in the deaths of his father and another man shot each victim at least four times with a .22-caliber rifle, methodically stopping and reloading as he killed them, prosecutors said Monday.

Like everyone else, the police sought to gain some grasp on why a child would do something like this, anticipating some rational motivation that would explain his actions. 

Although investigators initially said they thought the boy might have suffered severe physical or sexual trauma, they have found no evidence of abuse, said Roy Melnick, the police chief in St. Johns, Ariz., where the shootings occurred. Psychologists say such abuse is often a factor in the extremely rare instances in which a small child murders a parent.

An investigation found no evidence that the boy had disciplinary problems at school or shown signs that he was troubled, Chief Melnick said. “That’s what makes this case somewhat puzzling,” he said, adding that the court had ordered a psychological evaluation for the boy. “Our goal is to get him some help.”

The prosecution, however, has other plans for the child.  According to USA Today :

“We are going to prosecute the child to the fullest extent that the law will allow,” prosecutor Criss Candelaria said Sunday. “Kids that age are rarely transferred (to adult court.) Of course, this case is different because it involves a double homicide.”

I’m struggling to make sense of this.  No, not the double murder by an 8 year old, but the statement by prosecutor Criss Candelaria.  I couldn’t possibly explain what drives an 8 year old to do what he’s done, but I find it similarly impossible to comprehend the reasoning for taking such a harsh position toward a child.  Is it because it was “a double homicide,” as would appear from the statement?  Does that mean single homicides are no big deal for kids.  That makes no sense.

Perhaps the premeditated aspect of his killing drives the prosecution to ignore that the child is 8 years old.  Perhaps the notoriety of the crime pushes the prosecution to show how tough they are, or keep them in the news.  Perhaps no one in the prosecution office has children, and there is a wholesale lack of understanding that we’re talking about an 8 year old child.  I don’t know, and I can’t make any sense of it at all.

Clearly, something went horribly wrong here.  But what that something is has yet to be discovered.  There are some things, however, about which there can be no reasonable doubt whatsoever.  One such thing is that an 8 year old child cannot possibly have the understanding of death, of murder, that would allow the child to appreciate the nature and consequences of his act. 

Sure, an 8 year old can be taught to load, aim and fire a weapon.  An 8 year old may even understand that when you shoot some living thing in the right place, it stops moving, breathing, living.  But this most rudimentary view barely touches the surface of understanding necessary to attribute such a degree of evil to this child to justify the prosecution’s approach.

Police Chief Roy Melnick seems to be the only one involved that has the slightest grasp on reality here: “Our goal is to get him some help.”  That’s what you do with an 8 year old.  That’s what you do when something goes horribly wrong with a child.  What you don’t do is prosecute to the fullest extent of the law.  Now that’s just nuts.

Orin Kerr at Volokh Conspiracy alerts us to an update in the Lori Drew/Myspace case that has raised so many concerns, pointing to this AP story on Judge George Wu’s preliminary decision as to the scope of the upcoming trial.  Past discussion of this case can be found here, here, here, here, here, here and  here.  Yes, I’ve been following this case closely.

For those wondering what became of the motions, and supplemental briefing at Judge Wu’s request, the best answer available is the judge has reserved decision as the case moves forward, a process that I find to be peculiar at best since the decision could be dispositive, or perhaps provide significant parameters to the prosecution.  Why the court would push the case to trial while huge issues are pending is beyond me, elevating speed over substantive rights.  But that’s just me, and I’m not a federal judge.

However, yesterday’s court appearance was not a total waste of time, according to the AP.

U.S. District Judge George H. Wu told attorneys he was leaning toward excluding the evidence from the trial of Lori Drew, who is accused of using a fictitious profile on the social networking site to drive Megan Meier, her daughter’s former friend, to hang herself.

“I don’t necessarily think the suicide is relevant to the crime charged,” Wu said, adding he thought details of Meier’s death would unfairly prejudice the jury. He said he planned to announce his final decision Friday.

The court, again without finality, almost kinda made a ruling of monumental consequence.  If Judge Wu’s “final” decision come Friday stays the course, it will be a strong message that the government’s attempt to manipulate the Computer Fraud and Abuse Act to encompass Drew’s conduct that pushed Megan Meier to suicide will not be allowed.  Taking the suicide out of the case, and presumably Drew’s conduct toward Megan Meier that drove her to kill herself, will eviscerate the government’s emotional appeal and leave this case essentially pointless, as it should be.

The nature of the charges against Lori Drew, violating the terms of service of Myspace, do not bear upon the conduct toward, or the consequences to, Megan Meier.  While many want Drew punished for what she did to Megan, and these feelings are perfectly understandable, that’s not the case before the court.

But, but, but, you sputter.  Who cares about Myspace and its stupid terms of service.  Who cares that Lori Drew lied when she created an identity on Myspace, like about a zillion other people.  It’s what she did to Megan Meier that matters. 

Absolutely, which is why this case is so wrong.  Take Megan Meier out of the case, and the case means nothing.  It’s a joke.  It’s a ridiculous waste of time and effort, to prosecute someone for doing what millions of people do every day.  What normal people, like you, do every day.  Are you a criminal too?  Should you pack your bags for a vacation at Club Fed because you made yourself 10 years younger, 6 inches taller, a few shades blonder, a dozen IQ points smarter?  Without Megan Meier in the case, this is all it’s about.  Nothing.

An interesting sidebar to yesterday’s court appearance is that Drew’s attorney, H. Dean Steward, tried to make an end run around the problem.

On Wednesday, defense lawyer Dean Steward waived Drew’s right to a jury trial in an effort to have the case decided by a judge, not jurors. But prosecutors refused to agree with the defense waiver, which automatically resulted in a jury trial.

In federal court, Rule 23 of the Federal Rules of Criminal Procedure give the government the ability to veto the defendant’s decision to waive a jury and proceed with a bench trial.  I suspect that Steward, in light of the issues raised by Judge Wu as well as his preliminary ruling uttered yesterday, feels confident that the Judge will be best able to focus on the narrow charges levied against Drew under Section 1030 of the CFAA without being swayed by the highly prejudicial and irrelevant fact of Megan Meier’s suicide.

Not surprisingly, the government doesn’t want a bench trial, which would deprive it of the ability to seek conviction of Lori Drew for conduct that has no bearing on the crime charged.  After all, we wouldn’t want to thwart the government’s ability to use Section 1030 as a weapon to reach unrelated wrongs whenever a computer is involved.

Stay tuned.  Let’s see whether Judge Wu’s sticks to his guns. 

Over the objections of Justices Stevens and Breyer, the Supreme Court has denied cert in Kelly v. California and, with Justice Souter joining, Zamudio v. California, two cases involving the use of videos to capture the essence of the loss of a human in order to convey to a jury what it means to murder someone.  From SCOTUSBlog, via Doug Berman,

“In the years since Payne was decided,” Stevens wrote Monday, “this Court has left state and federal courts unguided in their efforts to police the hazy boundaries between permissible victim impact evidence and its impermissible, ‘unduly prejudicial’ forms….Having decided to tolerate the introduction of evidence that puts a heavy thumb on the prosecutor’s side of the scale in death cases, the Court has a duty to consider what reasonable limits should be placed on its use.”

In the past, it would have been impossible for those of us on the outside of these cases to appreciate what the dissenting judges were talking about, or what the true nature of the evidence at issue meant.  But as technology has invaded the sanctum of the Supreme Court, this is changing.  The video in the Kelly case has been made available for all to see.  It takes a while to download, and about 20 minutes to watch. 

Having never watched a death penalty video before, I had no idea what to expect.  It was devastating.  With soft, almost religious music playing in the background, the video followed the victim through photographs and some video through her life.  The voice over was minimal, describing the age and some occasional details about the photographs.  It enabled a viewer to see how a person grows, enjoys life and exists within a family.  It makes someone very real. 

At the end of the video, it shows the plaque on the grave of the young, happy, smiling life you’ve just watched.  It then cuts to another place, open sky and a winding river with a lone rider on horseback, and described this as the heaven that one would hope would be the final resting place for this beautiful young woman.

Knowing nothing more about the crime, about the murder itself, whether brutal or almost accidental, calculated or thoughtless, about the type of person who chose to take the life of this young woman, it is impossible not to be deeply moved.  This video will bring tears to the toughest macho man.  It is certain proof of the devastating pain, horror and pointlessness of murder. 

The video is meant to accomplish this task.  I don’t know whether it was professionally done, handled in some psychologically effective way to achieve a depth of empathy that could never otherwise be conveyed.  But make no mistake that it will cause anyone except the staunchest anti-death penalty supporter or psychopath to believe that execution is the only proper penalty for the crime committed.

Is this fair?  Is this right?  These are very difficult questions to answer once you’ve seen this video.  On the one hand, there is little doubt as to their impact, and that they convey to a death penalty jury more effectively then words every could what has been lost.  To call it a “a heavy thumb on the prosecutor’s side of the scale” doesn’t begin to capture the weight this video evidence has.

On the other hand, it is a flagrant appeal to pure emotion.  It begs certain questions about the imposition of the death penalty that need answers.  What if the victim didn’t enjoy a wonderful childhood, and has no photos of happy days and loving relatives?  What if the victim is unattractive or a miserable person, or was raised in squalid surroundings?  Is their life less consequential?  Is their murder less horrific?

The appeal to emotion is prejudicial to the rights of the defendant.  The death penalty is not to be imposed because we feel deep empathy for the victim and her family, but upon a weighing of the extenuating and mitigating factors.  The video’s purpose is to overwhelm all other factors, and it accomplishes this purpose.  The question is not whether it’s prejudicial, but whether it is unduly prejudicial.

From one side, I can appreciate the argument that the truth, that reality even if displayed in a way that overcomes all other considerations, is not unduly prejudicial.  It is, perhaps, precisely prejudicial. 

From the other side, I can appreciate that the defendant will never be able to present evidence to overcome the empathy, to counter the life lost with the life in issue.

This is an extraordinarily difficult issue.  The question is not whether you favor the death penalty, but where the death penalty exists, whether this is the proper evidence to present to a jury to reach a reasoned decision of whether to impose it in a particular case.

The dissenters on the Supreme Court are entirely in the right here.  The is a matter the truly needs determination and guidance, and the Supreme Court’s denial of certiorari is an abdication of responsibility.  Regardless of which way the court would come out, they should have taken the cases, struggled with these extremely difficult questions, and done their job.  Instead, they dodged this very difficult problem and left us hanging.

The Office of National Drug Control Policy is not a subtle bunch.  Its latest foray into scaring kids to stay away from marijuana is over the top, a modern day Reefer Madness effort designed to suggest that smoking some reefer will be the end of any chance they might have to lead a successful life.  The motto is, “Hey, not trying to be your mom, but there aren’t many jobs out there for potheads.”

Clearly, the ONDCP is pushing the envelope.  But why, I wonder, are so many pushing back? 

There are many people who argue that marijuana should be decriminalized.   That the suggestion that smoking marijuana places a young person on the road to heroin addiction is absurd.  This is certainly and worthy debate, and one that becomes clearer when you consider that there are jail cells filled with young people who have done nothing different than people we have elected to high office from both parties.  Indeed, this has to strike anyone who thinks on occasion as an absurdity.

But there is a flip side to consider.  As much as the heavy-handed efforts by the  ONDCP provide the source of some hearty laughter, what do we gain by promoting pot use?

Think about it this way.  If you are a parent, do you tell your teenage child to go try some pot?  See if you like it?  Find out whether it’s your version of the martini?  Want to join Mommy and Daddy in a blunt?  Come on.  This isn’t cool.

This is why I found Radley Balko’s reaction to the government’s silliness disturbing.  In contrast to the advertising campaign that pot smokers are losers, Radley proffers a list of successful people who have smoked pot:

Barack Obama, president-elect.  Bill Clinton, 42nd president of the U.S.  John Kerry, U.S. Senator and 2004 Democratic nominee for president.  John Edwards, multi-millionaire, former U.S. Senator, and 2004 Democratic nominee for vice president.  Sarah Palin, governor of Alaska, 2008 Republican nominee for vice president.  British Home Secretary Jacqui Smith, Transport Secretary Ruth Kelly, and Chancellor Alistair Darling.  Josh Howard, NBA all-star.  New York Governor David Paterson.  Former Vice President, Nobel Peace Prize winner, and Oscar winner Al Gore.  Former Sen. Bill Bradley, who smoked while playing professional basketball.  Supreme Court Justice Clarence Thomas, former Speaker of the House Newt Gingrich, and former New York Governor George Pataki. Billionaire and New York City Mayor Michael Bloomberg.

The list, of course, is decidedly underinclusive.  It certainly shows the fallacy of the government’s campaign to suggest that all pot smokers turn out to be losers.  Of course the campaign was absurd and silly, and obviously there are plenty of people who have smoked pot and turned out to be great successes.  So what?

Many others have linked to, and joined with, Radley Balko’s endeavor, including some blawgers who I respect and admire greatly.  But I suggest that they have confused two issues.   At least, I hope they have.  No, marijuana does not inevitably lead to heroin addiction and failure in life.  But does that mean that it’s a good idea to suggest that people should smoke pot and be like Barack Obama or Michael Bloomberg?

Smoking pot is something that almost everyone of a certain age has done.  Some did it more than others.  Some grew out of it.  Some did not.  Not every person who smoked pot became a billionaire or president.  Some became a waste product.  Some would have become billionaires anyway.  Some would have become waste products anyway.

Automobile accidents happen because drivers are high, just like they do when drivers are drunk.  I don’t extol the virtues of getting drunk.  I don’t condemn someone because they smoked pot.  But it’s not something I promote either.

Let’s not lose our heads on the subject of marijuana.  It’s hard to blame the government for using an advertising campaign to promote sobriety.  Not smoking marijuana isn’t a bad thing.  While the campaign itself may be a worthy topic of debate, even ridicule, its underlying purpose isn’t really controversial at all.  The national policy against the use of marijuana is pretty standard stuff. 

And this does not implicate the medical marijuana issue, any more than arguing that vic-o-din (deliberately broken up so search engines won’t recognize it), great for relieving severe pain, is the perfect “pick-me-up” pill for anyone driving race cars. 

No one on the list of marijuana smokers achieved success because they smoked marijuana.  It’s questionable whether anyone on the list smoked pot as they climbed the ladder of success, or was a regular pot smoker beyond their younger years.  I haven’t seen anyone on the list become part of an advertising campaign to “Smoke Pot, Be Like Me!”

So let’s not get crazy about this.  It’s perfectly reasonable to challenge the criminalization, and certainly the punishment, of marijuana users.  It’s fair game to ridicule the ONDCP’s anti-marijuana campaign, described by Radley as “an incredibly lame campaign, [that] reeks of stodgy wonks making a desperate attempt to look hip.”

But it’s similarly foolish to turn the government’s inept effort into an opportunity to suggest that pot smoking is the road to success and wealth.  It’s not.

Update:  Radley has just added this video, created by John Holowach.  I think this strikes a very good balance, and makes its point effectively.