Much of a Muchness

A few random thoughts (I know that's not much different from normal!):

• Congratulations to Crystal Palace on their return to the Premier League. In real football. None of this stop-every-ten-seconds-of-play nonsense, or sissy protective gear!
• I must disagree with a lot of the muttering going around about Martha Stewart's "inappropriate" conviction for making false official statements. Professor Ribstein's refreshingly honest and clear assessment, I am afraid, misses the point, although much less so than the article to which he linked. The usual objection that one hears is that she shouldn't have been punished for making a false statement on something for which she was not criminally charged. Unfortunately, this ignores the question of prosecutorial discretion: the prosecution chose not to charge her directly with the conduct that she was convicted of lying about. Instead, that conduct was handled under the much-lower civil standard of proof by the SEC. As much as anything else, this probably reflects the prosecution's evaluation of the persuasiveness at trial of the evidence it eventually developed. The point of false official statement prohibitions—the one that I lived/ate/breathed is Article 107, UCMJ—is to enable valid investigations, including precisely this use of prosecutorial discretion. Although I don't completely agree with Mr. Turow's analysis, I think his conclusion is nonetheless sound—and particularly so for that particular defendant, a former stockbroker and then-member of the NYSE Board of Directors.
• Professor Froomkin reasonably wonders why we are changing the top commander in Iraq after a year. On the one hand, there's military tradition. In the Army (and to a lesser extent the Marines and Navy, and a lesser extent still the Air Force), flag officer command tours are ordinarily limited to two years, and seldom exceed eighteen months. Part of this is just the operation of the modern personnel system: Flag officers are retirement eligible, so there is a constant demand for them as more-senior officers retire. There is also a sound practical reason: high-level commanders tend to become ineffective in a given unit when that unit is in combat conditions for more than 300 days or so. Put another way, both the unit and the commander need fresh perspectives, or there will be more fresh blood. This particular phenomenon can be spotted in the West since the end of the First Thirty Years' War in 1648. So, although it does raise some eyebrows, there are rational "general principles" justifications for the change.