Monthly Archives: September 2011

Why The Pardon Process In D.C. Should Be Changed

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The DOJ Inspector General issued an interesting report today on the DOJ’s clemency review process. For pardon supporters, the report is pretty disappointing: it shows long delays and an increasing backlog in clemency petitions. This is on top of some of the other problems with the federal pardon system, perhaps most importantly a decline in the number of pardons granted.

Reports like the DOJ’s report always make me think again about the injustice of the pardons process in D.C. (I’ve previously wondered whether pardons are a good thing on the whole, but I’m going to put that issue to the side for now.) You see, if you’re convicted of a regular ‘ole “state” conviction in the District–that is, if you’re convicted in the Superior Court of the District of Columbia–you are subject to the federal pardons process. Minor drug convictions, small thefts, and the like would likely be subject to a state system most any place else, but in D.C. the only chance for a pardon of such crimes come from the President.

A quick look at the relevant stats suggests that this system renders it far less likely that those convicted in D.C. “state court” will receive a pardon. Judging from the pardons posted on the DOJ website, not a single person convicted in D.C. Superior Court has received a pardon in the last 10 years. Compare that number to stats from Wyoming and Vermont, two states that are around the same size as the District. Vermont evidently pardoned around 50 to 60 people between 1995 and 2005. Wyoming, never known to be a state full of softies, pardoned 2 people during the same period–still more pardons than the number in the District. (The governor of Wyoming restored the rights of 10 additional people.) A very rough survey leads me to believe that state prisoners have a much better chance of getting a pardon than federal prisoners.

There’s a simple solution to the apparent problem created by the current D.C. pardon process: grant the mayor of the District of Columbia the power to pardon criminal offenses in the District. As it turns out, the mayor already has a limited power to pardon under D.C. Code § 1-301.76, which allows him to pardon minor violations not prosecuted by the U.S. Attorney. In fact, the D.C. government took the position (at least at one point) that it has the power to pardon all offenses in the District–but the DOJ simply won’t agree. The mayor could just start pardoning people and see what happens, but it would of course be easier if Congress would simply resolve the issue through legislation. Even better, that would be a further step towards complete D.C. home rule.

Given the substantial number of problems that exist in the federal-D.C. relationship, pardons are probably not an issue high on anyone’s list. Yet pardons are just another* way that D.C. residents get screwed by the uniquely federal criminal system here, and that just doesn’t seem right.

-Michael

*Another example is the way D.C. prisoners are housed. Because they are technically federal prisoners, they may be shipped off to any locale in the federal prison system, far away from family and friends back in D.C. It’s not just the warm-and-fuzzies that suffer. As the Washington City Paper explained, “Many D.C. prisoners are not close enough to make court appearances. Those trying to challenge their sentences or the terms of their parole on their own aren’t likely to find updated copies of the D.C. Code in out-of-state prison law libraries. And, prisoner advocates argue, inmates who want a lawyer have a hard time finding one.” As someone who used to have a client housed hundreds of miles away, I can assure you it’s very frustrating.

[H/T: Pardon Power and Sentencing Law and Policy]

An Inquiry Into the History of First-Person Shooter Video Game Villains, Pt. 3

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The third and final segment! Continued from An Inquiry Into the History of First-Person Shooter Video Game Villains, Pt. 2.

4. Speculative Warfare (circa 2008 – present)

Because ultra-realistic FPS games are a marketing time bomb, and because of the awkward gameplay moments that will inevitably arise when your setting involves U.S. forces fighting against a real world enemy, ultrarealistic FPS games have now moved on to the fourth and present-day era: speculative warfare. Like the games of the two previous waves , speculative warfare games feature wars between real nations and real human organizations. However, instead of recreating past or current wars, these games are set in the present or near future, and involve hypothetical conflicts between existent nations.

As always, Russia is the common denominator. Even with the Cold War two decades dead, video games have no shortage of creativity when it comes to finding ways to, once again, make Russia the villain. Just like how the historical reenactment games rewrote history to make Soviets the bad guys, speculative warfare games warp modern day international relations into unlikely scenarios where Russia is the evil invading force. For instance, in Battlefield: Bad Company 1 (2008) and 2 (2010), the player is thrown into the midst of a modern day war between the Russian Federation and the United States, with little time wasted on explaining how such a conflict could ever come to pass. In contrast, Modern Warfare 1 (2007), 2 (2009), and 3 (forthcoming – 2011) at least try to give some plausibility to their story lines, by inventing the rebel Russian Ultranationalist Party to explain how Russia suddenly becomes an active world threat again. (Although the rumor mill falsely claimed MW2 had been banned in Russia, the developers did take out a scene allowing players to shoot civilians in the Moscow airport. Although shooting Russian civilians was deemed too much for the Russian market, simply having Russia be a villain is not a problem.)

Still other games go for the hybrid Russian villain, by mixing elements of historical military fears with modern day anxieties, and team Russia up with a more likely antagonist nation. For instance, in Frontlines: Fuel of War (2008), you have the Western Nations fighting against the “Red Star Alliance” — the mighty pseudo-superpower duo of Russia and China. Likewise, Rogue Warrior (2008) also uses Russia, but teams it up with North Korea and a nuclear weapons smuggling program.

Having Russia be the villain for speculative warfare plots opened the door for other nations to become the hypothetical villain. Russian markets never seem to mind when Hollywood or U.S. game developers choose them to be the bad guy, and the trope is so common as to be beneath notice by any diplomatic instruments. But Russia is sui generis, when it comes to the lack of controversy caused by casting it into the villain’s role. Having other nations fill in for the bad guy is not nearly so straightforward. It is not hard to see why — having major U.S. and other Western nation game developers declare that they can foresee ostensibly friendly or neutral nations as likely enemies in a U.S. military conflict necessarily carries some uncomfortable implications.
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Kellogg’s Wrongfully Claims Ownership of All Depictions of Toucans Used in Commerce

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There are more than 40 species of toucan in the world, featuring a diversity of sizes, feather patterns, and beak colorations. But the Kellogg Company, maker of children’s breakfast cereal Froot Loops, thinks that it owns the sole right to use toucans in commerce — any kind of toucan, no matter what it looks like. In fact, Kellogg’s believes that they are the only company allowed to even use the brand name “toucan”, or anything that even kind of vaguely sounds like “toucan.”

The Maya Archaeology Initiative's logo

The latest victim of Kellogg’s trademark overreach is the Maya Archaeology Initiative (MAI), a nonprofit that defends and promotes the study of indigenous Maya culture. Kellogg’s is opposing registration of MAI’s logo, claiming that its inclusion of a toucan is an illegal infringement on Kellogg’s Toucan Sam character.

The Maya Archaeology Initiative’s logo features a stylized keel-billed toucan in front of a Mayan pyramid.

In contrast, the Froot Loops mascot, Toucan Sam, is an anthropomorphic blue bird that has no immediately recognizable analog in nature, except possibly some kind of dodo bird/blueberry hybrid. The only toucan species that Toucan Sam bears even a plausible resemblance to is the plate-billed mountain toucan, which is a different genus all together from the more commonly depicted toco toucan or keel-billed toucan. Literally the only thing Toucan Sam has in common with the MAI’s logo is that in both cases the bird depicted is intended to be some kind of toucan.

Toucan Sam

Nevertheless, Kellogg’s has filed a Notice of Opposition to MAI’s registration of its toucan-and-pyramid logo, alleging that

Applicant’s TOUCAN BIRD DESIGN mark so resembles Opposer’s TOUCAN marks as to be likely, when applied to the goods of Opposer, including Opposer’s wide range of licensed goods, including clothing, to cause confusion or mistake or to deceive purchasers resulting in damage and detriment of Opposer and its reputation. In this regard, it should be noted that Opposer’s TOUCAN SAM Marks are frequently displayed in connection with depictions of a jungle theme including Mayan temples and surrounding vegetation. Thus, use of the Mayan pyramid in the Applicant’s TOUCAN BIRD DESIGNS is likely to further strengthen the public’s connection of Applicant’s design with Opposer’s famous TOUCAN equities.

Kellogg’s isn’t just claiming that it owns toucans. It especially owns toucans displayed in Mayan temples and vegetation!

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Last Last Meals?

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The last meals of death row inmates have, for some reason, always attracted a lot of public attention. Websites exist cataloging them, the press reports on them, and entire books have been written about them. PETA once tried to capitalize on the attention given to last meals by begging Timothy McVeigh to become a vegan in his final meal. Even artists produce projects focusing on the final meals. Perhaps all this attention is driven by a sense of strange irony in treating a man like a king right before we kill him. Or maybe people are just amused by the strange things sometimes ordered by prisoners, such as Victor Feguer’s request for a single olive or Dobie Gillis Williams’ final order of 12 candy bars (with some ice cream on the side).

In rare cases, the last meals become news because they provide insight into the thinking of the prisoners themselves. Ricky Rector‘s execution was controversial because many believed he was unable to understand what was going on around him (after a self-inflicted shot to the head severely damaged his brain); his lack of understanding was confirmed when he saved a slice of pecan pie that came with his last meal “for later.” John Allen Muhammad–better known as the D.C. sniper–asked that his food choices be kept secret, perhaps reflecting his quiet and calculated nature. Troy Davis didn’t eat a last meal at all, refusing the meal for “good luck” and hoping right until the very end that his execution would be stayed and he would get another chance to eat.

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Updated: Fourth Circuit Butchers International Law and the Alien Tort Statute

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Susan is really the expert on the Alien Tort Statute, so I hesitate to venture into that area. But the Fourth Circuit issued an opinion today that seems to misunderstand basic principles of international law, so I can’t just let it go. In Aziz v. Alcolac, the Fourth Circuit tackled the familar question of whether an aiding-and-abetting claim may be brought under the ATS. The court agreed that such a claim could be brought, but applied the specific mens rea requirement from the Rome Statute to any such claim (as opposed the more general “knowledege” requirement cited in other international law contexts).

The Fourth Circuit takes a truly bizarre path to relying on the Rome Statute. The court correctly recognizes that the “law of nations” can be drawn from international agreements (i.e. treaties), customary international law, and general principles of law common to civilized systems of law. But then the opinion breaks down, fashioning a principle of international law that doesn’t really use any of the above three sources.

The court ostensibly relies on the Rome Statute of the International Criminal Court to define the reach of aiding and abetting liability.  The treaty could useful evidence of customary international law, as treaties often are. Indeed, the United States apparently considers the Statute to be a reflection of binding international law. But the Fourth Circuit refuses to take that approach, concluding that the Rome Statute is “properly viewed in the nature of a treaty and not as customary international law.” The court apparently never considers the notion that treaties and customary international law can and often do overlap.

Instead, the Fourth Circuit just declares that the Rome Statute provides a nice standard because “its status as a treaty cuts in favor of accepting its mens rea standard as authoritative for purposes of ATS aiding and abetting liability.” The court points out that lots of nations have signed the Rome Statute, even if Iraq (where all the action in Aziz happened) and the United States haven’t. Well, that’s great, but doesn’t that go to whether or not the Rome Statute reflects customary international law, the very question the Fourth Circuit said it had already answered? I simply don’t understand how a treaty not signed by the relevant nations and not applicable to those nations as customary international law can nevertheless provide binding principles of law for those nations’ citizens. See VCLT art. 34 (“A treaty does not create either obligations or rights for a third State without its consent.”).

It looks like what’s really behind the Fourth Circuit’s adoption of the Rome Statute standard is the court’s uneasiness with the indefiniteness of customary international law.  The decision talks a lot about how customary international law is difficult to define and of “soft” character. This whole discussion indicates one of two things: (a) the Fourth Circuit was unwilling to do the hard work of doing the international law research and legwork necessary to determine what the relevant customary international law standards are; or (b) the standards really are hopelessly indeterminate, in which case this is not a norm that is “sufficiently definite” to be actionable under the ATS.  See Sosa v. Alvarez-Marchain, 542 U.S. 692, 732 (2004). Either way, this opinion merits a big thumbs down.

Maybe Susan will explain why I’m wrong, but for now I’m convinced that this was a bad decision.

-Michael

Update (Sept. 22): This post over at Opinio Juris confirms that others are reading this opinion the same way I am.

Not So Smart?

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“One shouldn’t exaggerate the quality of judges and justices. Law isn’t the calling of geniuses. The Supreme Court today is composed of competent lawyers, and one should probably leave it at that.”

Judge Richard Posner, judge on the United States Court of Appeals for the Seventh Circuit, commenting on judges

Cracking the Code

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A new federally-mandated medical billing code system, the International Classification of Diseases, 10th Revision, includes about 140,000 codes that doctors will be required to use in describing the conditions of their patients to insurers. The Wall Street Journal has a nifty tool letting you search all the codes. After playing around with it, I discovered my favorite code: code Z631, covering ”problems in relationship with in-laws.” Thank god doctors now have a way of concisely describing that medical crisis.

-Michael

Update: More funny codes.

Did Cheney Accidentally Admit That The Iraq War Violated International Law?

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Over at Jonathan Turley’s blog, a guest blogger named Lawrence Rafferty is parroting a pretty bold claim made by former AP and Newsweek reporter Robert Parry: that Vice President Dick Cheney accidentally admitted in his new book that the Bush administration violated international law in launching the war in Iraq. Cheney’s book, titled In My Time, mentions that President Bush sought a “second resolution” from the U.N. Security Council to justify the war in Iraq, but wasn’t able to get it.  According to Cheney, the administration eventually “pulled … down” the proposed second resolution and proceeded to attack Iraq without it.

Parry and Rafferty see this account as a tacit admission of illegality because (1) ”approval from the Security Council is a prerequisite under international law for giving legitimacy to an invasion,” and (2) Cheney’s story makes clear that the United States had no such approval at the time it sought the second resolution.  Both steps in this line of reasoning, however, are wrong.  Both authors exaggerate the import of Cheney’s statements.

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“Garbage Island” and International Law

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A few months ago, an episode of How I Met Your Mother (my favorite show) referenced “Garbage Island,” a massive floating landfill supposedly in the Pacific Ocean.  In HIMYM, Marshall is shocked to learn about the allegedly hundreds of garbage floating out at sea. In the end, Marshall doesn’t really do anything about the island–it’s just a plot device–and it isn’t really discussed anymore.

Later, I learned that “Garbage Island” is similar to a very real problem: the Great Pacific Garbage Patch. Although some continue to insist there is no massive garbage patch, it seems there is scientific consensus that a large amount of miles of garbage has gathered in a gyre in the middle of the Pacific Ocean. This garbage patch of mostly plastics sickens animals, causes garbage debris to wash up on the shores of various Pacific islands, and generally looks gross. Of course, the NOAA tells us it’s not really a visible patch and it’s not really continuous; it’s actually a few different areas where small plastic particulates fill the water.

A massive problem like this probably demands a massive solution. This sounds like a job for international law! After all, only with international cooperation could a problem like this be dealt with: it’s a big problem, in a location not controlled by any one country, which developed because of the practices of multiple nations.

So has international law tackled the Great Patch?

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Bush League Judicial Opinions

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After seeing Michael’s post about Judge Spark’s order inviting counsel to a kindergarten party to teach squabbling counsel about how to resolve discovery disputes without oversight, I was curious about whether any other judge had ever used the phrase “kindergarten party” in a written opinion. While I agree with Michael that Judge Spark’s opinions go too far, and are too cruel and targeted to be appropriate, I do think there is a time and a place in judicial opinions for informal turns of phrase. Plus, it is always pretty entertaining when judges try and fail to sound “hip,” by wrongly employing the lingo that all the cool kids are using these days.

As it turns out, no one but Sparks has busted out the term kindergarten party, at least not in any reported order. So I looked into whether any similar phrases were in use, and found that no judge has ever sunk so low as to use the term “weaksauce” in a judicial opinion, and only one or two have referred to conduct as being “amateur hour.”

But I was pleased to see that quite a few judges have seen fit to use my personal favorite synonym for kindergarten party behavior, and have described litigants and attorneys alike as being “bush league.” Among those using the phrase are judges from the Mississippi Supreme Court (“I do not approve of what defense counsel did in this case, but compared to what happened in Cole, Darby’s lawyer is in a bush league. Darby v. State, 538 So. 2d 1168, 1178 (Miss. 1989)), the 7th Circuit (“But the confession was the beginning of the cooperation, for it was the confession that revealed that Rutledge was involved in more than bush-league drug dealing.” United States v. Rutledge, 900 F.2d 1127, 1131 (7th Cir. 1990)), and the 5th Circuit (“The betting began with bush-league sums in early June, 1970.” United States v. Burke, 495 F.2d 1226, 1230 (5th Cir. 1974)).

The 10th Circuit has joined in to — even accompanying its use of the phrase with a pretty terrible pun:

“Arguably, an etymologist would place the terms ‘slime’ and ‘sleazebag’ in the same league as ‘scum’; perhaps a bush league rather than a professional league, but nonetheless the same league.” Henderson v. Times Mirror Co., 669 F. Supp. 356, 361 (D. Colo. 1987) aff’d, 876 F.2d 108 (10th Cir. 1989).

Sadly, the 10th Circuit appears not to understand its own analogy, given that the whole point of having a bush league and a pro league is that the two are not, in fact, part of the same league.

And here’s a fairly scathing quote from a Massachusetts Superior Court:

“However, within my discretion, I find that a litigant’s right to access to the appellate courts is so important and so sacred that the blatant and transparently bush league contumacious conduct of Bruce D. Amster in attempting to avoid a creditor’s judgment doesn’t qualify for cutting off his appellate rights even though his conduct is flagrant[.]” John P. Kendall v. Hyannis Restorations International Sales, Inc., et al., Superior Court of Massachusetts

My new goal for the day: find an excuse to use the phrase “transparently bush league contumacious conduct”.

And here are some final quotes, attesting to the judicial popularity of describing kindergarten party antics as bush league moves:

“Absent that, the cataloguing of every instance of intense disagreement between the parties over the life of an investigation and trial, be it claimed Brady violations or bush league recess interrogation of the courtroom gallery, contorts the Hyde Amendment into a vehicle for Monday morning quarterbacking Congress simply did not intend.” United States v. Ali, 06-CR-200 (ENV), 2008 WL 4773422 (E.D.N.Y. Oct. 27, 2008)

“In comparison to some of the more notorious cybersquatters, Rayne’s registration of roughly thirty domain names might seem bush-league. See H.R. Rep. 106–412, at 13 (noting that certain cyberpirates have been known to warehouse hundreds, even thousands, of domain names).” Savin Corp. v. Rayne, 00-CV-11728 PBS, 2001 WL 34815751 (D. Mass. Mar. 26, 2001)

“Legal academia may have unwittingly contributed to the common failure of counsel to brief thoroughly state constitutional issues by sometimes viewing them as the bush league of constitutional law.” Davenport v. Garcia, 834 S.W.2d 4, 21 (Tex. 1992)

And saving the best for last, we have what must surely be the absolute worst pun that has ever graced a federal court’s opinion, courtesy of the district court for the Southern District of New York:

“Of the magazines cited by defendants as undermining the PLAYBOY mark, PLAYBIRDS has no significance. PLAYBIRDS is a sex-oriented magazine but its style and content is bush league compared to PLAYBOY. It consists essentially of a series of pictures of unclad women with their legs open, exhibiting with dull redundancy the organ that PLAYBOY strives to make mysterious and interesting through suggestive display.” Playboy Enterprises, Inc. v. Chuckleberry Pub., Inc., 486 F. Supp. 414, 422 (S.D.N.Y. 1980)

-Susan