What I am doing at work: The same old, same old most of the time, but I’ve also been giving a lot of thought to Booker. Specifically, I’ve been wondering about a court’s obligation to raise the issue of Booker error in the context of an Anders brief. (For more on Anders briefs, see my post here.) Ordinarily, the court in those cases has a duty to raise and address any arguable issue, and in most cases the Booker issue is at least going to be worth looking into — at least something above the frivolous threshold. But, two problems emerge. First, does this give an advantage to appellants whose counsel filed Anders briefs over appellants whose counsel filed a regular brief, no matter how bad? Second, if the court remands because of Booker error, the district court might be able to impose a stiffer sentence in a new proceeding, which would really stink for the appellant. (“The good news is the court found error in your case and sent it back to the trial court! But the bad news is that now you’re worse off than if the court hadn’t reversed at all.”) Maybe the filing of an Anders brief is the attorney’s signal that the Booker issue isn’t one that would be helpful to the appellant (although, to be honest, attorneys who file Anders briefs, in my experience, haven’t been known for that kind of thorough analysis of the record). Maybe the answer is something hinted at in some posts at Prof. Berman’s Sentencing Law & Policy blog, about due process rights and sentencing. Maybe the appellant has some right to avoid a higher sentence that would be imposed just because a court got motivated to notice unargued error. It’s one thing for someone to appeal an issue and wind up worse off (the recent story about a party appealing a $1.3 million judgment, only to get hit for $30 million at the re-trial, is a nice example), but that’s a strategic risk an appellant has to take. It’s another for an appellant to get shafted through no fault of his own, when the appellant and counsel didn’t make any attempt to raise the issue (and usually in Anders cases the Government doesn’t file a brief, and if it does, it’s pro forma and doesn’t raise new issues). That just seems unfair. Any thoughts on this?
What I’m doing at home: I had some family in town, and between that and the distinct possibility that I might have non-family company thrust upon me because of a social event this weekend, I had to clean my place better than I had in a while, and I even bought some furniture so people would have a place to sit. (Mr. Burns: “Oh, yes, sitting. The great leveler. From the mightiest Pharaoh to the lowliest peasant, who doesn’t enjoy a good sit?”) I’ll post a picture soon. As it turned out, no one ended up coming, but that’s ok. I’ve been a lot more social here than I was in my last city, and met lots of fun people (and a woman grabbed my ass Saturday, so that was nice). I’m not sure why that is. I think it’s partly due to the kind of city I’m living in, and where I am in it, and the fact that my colleagues are all younger than me instead of the married suburbanites I used to work with (who were nice and fun, but rarely dragged me out to a happy hour). I don’t think I’ve changed. I was out in a group of people, and the friend who invited me, knowing that I’m fairly anti-social, asked if I was okay with the crowd. I said, “It’s not the fact that there’s a crowd that bothers me. I don’t mind the number of people as much as having to interact with them.” But it went well and I had fun, and now my place looks decent.
What I am watching: I wasn’t choosing the movies, but I rented The Village, Starsky and Hutch, and Harold and Kumar Go to White Castle. Quickly, I expected one of the big twists in The Village, but didn’t predict the other. I thought it was okay, better than Signs and Unbreakable, but that isn’t saying much. Starsky was fun for what it was, a piece of fluff. Vince Vaughan is going to be like Alec Baldwin, I think: the kind of actor that rarely leads a movie but steals every scene he’s in and ends up being the most memorable character in the movie. And I would love to see him match Baldwin for number of times hosting “SNL.” I think he’d be great at that, but he’s only hosted one time, in 1998 to push Psycho. I wonder if he just hasn’t been asked back, or if something happened then and he doesn’t play well with others or something. Or maybe he’s just too busy doing movies with Ben Stiller and Will Ferrell. Oh, and Harold and Kumar is just what you think it is, so if you go in with zero expectations, it’s not bad.
What I am listening to: Some They Might Be Giants (the title of this post comes from the song “Put Your Hand Inside the Puppet Head”). This anthology I have is called “Dial-A-Song.” When they were just getting started, the Giants set up an answering machine and took out an ad in the Village Voice. If you called the number, you could hear what they were working on those days by listening to the outgoing message on the machine. (There’s now an online version too, if you don’t want to call the number at 718-387-6962.) Sometimes I think of this place as Dial-A-Blog, because I saw an interview with TMBG one time where they said the great thing about Dial-A-Song was that it motivated them to keep writing stuff, because they always felt pressured to get a new song up on the answering machine. Although it may not seem like it, I spend a lot of time thinking about what to post here, almost to the point of “thinking in blog.” (Google tells me I’m not the first to use the phrase “dial-a-blog,” but I hadn’t heard those references before.)
What I am reading: I’m trying to finish my January magazines by the end of January, a rare event for me. I was going to say I wouldn’t make it, because I still haven’t started this month’s “Atlantic,” but then I realized it’s the Jan/Feb double issue, so I have more time. I haven’t bought any books in a while, so I think I might go to the bookstore tonight. I’m trying to decide what’s going to be next in the fifty book challenge. I think it’s going to be a book about religion, and then a work of fiction, but we’ll see.
What I am thinking about: Iraq, oddly. I say oddly because I haven’t been giving it a lot of thought. But today Fitz and I were talking about Sen. Ted Kennedy’s statements about the war effort there, I was reading about Sen. John Kerry’s interview on “Meet the Press, and looking at some pictures from the elections in Iraq. I’m sure you’ve seen the photo of the Iraqi woman holding up her fingers in a V-for-victory sign, with her index finger covered in the ink they used to identify voters over there.
(I’ll claim fair use for posting this because (a) I saw a credit listing it as a pool photo, and I think they ought to be a little more understanding about sharing those with other news outlets, and (b) I’m going to discuss the photo itself, so I’ll claim benefit of the “commentary” exception to copyright infringement.) Anyway, that picture is compelling to me, even more than the one I’ve also seen (available at the Powerline link) of the woman with a tear in her eye as she holds up her inky finger. The V-woman picture is powerful to me because it reminds me of so many other images of people flashing that sign, from Churchill to, well, Nixon. Of course, the sign has the dual meanings of “victory” and “peace,” and it seems like the woman is trying to symbolize both, if they’re even something different here. I’m not saying Iraq is peaceful or that victory can be declared, but these elections are a significant step, and a hell of a lot better than those 100%-to-0% farces that Saddam used to hold. This picture has so much of a story behind it, and it draws the viewer in with its composition — the viewer’s eye goes from the inky finger to her hopeful eyes. Or maybe they’re almost impish (note the little smile) at her gesture of defiance to those who would not have her vote. Anyway, I think it’s a great photograph, and I think it has a good chance at a Pulitzer, although I don’t know whether it would qualify as breaking news or feature photography.
What I am not thinking about: The Stupor Bowl, except for two things: (a) I think it’s funny that all the ads have to use phrases like “win a trip to the big game in Jacksonville” or “have your big-screen tv in time to watch the big game” because they can’t call the game by its name; and (b) the game will be followed by the premiere of “American Dad,” although the full season won’t start until May.
Shout-out: To E-Spat, for her amazing post, which is as good as it gets. Speaking of Pulitzer-worthy….