December 28, 2012

Friday Review Year In Review

As with last year, here's an easy to navigate list of Feeding the Silence's accidental regular feature, the Friday Reviews.  Sorted helpfully by review type, just because I'm that kind of guy:


Movies & TV


See ya' in 2013!

December 21, 2012

Friday Review: 2012 Short Takes (Part 2)

As with last week . . .

Not the Weapon But the Hand, by Steve Hogarth & Richard Barbieri: If there was ever an album that was just as advertised on the cover, this it. Take the ambient and electronic confections of Barbieri’s two excellent studio albums, add words and breathy vocals from Steve Hogarth, as heard on his solo album and countless Marillion tracks, and here you are. Judging by the results, it’s amazing somebody hadn’t thought to throw these two together like this before. It’s generally a chilled out, laid back album (with some nice guitar accents from Dave Gregory – see below), but it cranks up and throbs away in spots. A really good listen and, ultimately, more interesting that the new Marillion album (to my ears, anyway).

English Electric, Volume One, by Big Big Train: I’ve had a weird relationship with Big Big Train’s last LP, The Underfall Yard. It was heavily hyped in “best of the year” lists, but it didn’t knock me over. What it’s done, after many a listen, is sort of work its way under my skin. I can’t say I love it, but I keep wanting to listen to it. That counts for something. English Electric, Volume One (a second is due in 2013) is starting out the same way. This one’s an effort of a proper band (that includes Dave Gregory of XTC and former Spock’s Beard man Nick D’Virgilio), although there’s an awful lot of extra hand brought in to flesh things out. This one does have something that the last album lacked – a genuine, cant’ get it out of my head earworm. “Judas Unrepentant” is the story of a frustrated artist who seeks revenge on the world by becoming a master forger. Since it’ll keep me going back to English Electric again and again, I figure the rest will worm its way in, eventually.

Viljars Oga, by Anglagard: One of the first of the third-wave symphonic prog bands of the 1990s, Anglagard’s first two albums (they disbanded in 1996) sounded like the came out of a time warp from the 1970s, plunked down in the middle of the Swedish countryside by means more mystical than mechanical. Which is not to say they aren’t wonderful – they are – it’s just that they couldn’t charitably be described as breaking any new ground. Given that history, it’s no surprise that the band’s third album picks up where the second left off, albeit ?? years after the fact. Given them immense credit – they sound like a call back from the past, yet do it without sounding at all derivative of the bands of that era. It’s just classic, brooding, epic symphonic prog.

echolyn, by echolyn: An echolyn album is like a fine wine – it needs time to age properly. Via the drip drab updates on the band’s mailing list, it seems like the new album had been in works for decades, even if it’s only been sven years since their last opus, The End Is Beautiful. That album really grabbed you from the get go and didn’t let go. The new one (self titled, as was their 1991 debut – confusing, ain’t it?) isn’t that direct. But after many engaged listens it’s really gotten underneath my skin. This band somehow manages to build complex, layered tracks that are melodic and powerful all at the same time. Layers get pulled away upon each listen. The end result is a brilliant record. Hear for yourself with “Past Gravity” performed live in the studio (with special guest Francis Dunnery):

December 18, 2012

How Not to Promote Your Book

Hopefully, at some point, I’ll get to the point where I have a novel completely finished, polished, and ready to be published. Then will come the time to promote it, which I’m sure will be hell. How does one bring attention to their work in the 21st Century? History shows us that presidential assassination is no way to promote the sales of your book. Now my colleagues over at the Ninth Circuit Blog have helpfully pointed out another unacceptable means of promotion.

In the wake of 9/11, Mark Keyser wrote a book about the dangers of anthrax called Anthrax: Shock and Awe Terror. Unable to find a publisher, he went the DIY route, putting together a CD with his book on it. That’s when things got weird. As the Ninth Circuit explained:
In an attempt to secure publicity for the book, Keyser mailed a package to the Sacramento News & Review in 2007. The package contained a letter, a CD containing Keyser’s book, and a small spray can with a label stating ‘ANTHRAX’ and displaying a biohazard symbol. The package prompted employees to call 911 and to evacuate the building, and numerous emergency agencies responded.
It worked, after a fashion. The incident got the attention of the FBI, which sent agents to talk to Keyser and explain to him the trouble it all caused and told him not to do it again. Keyser agreed that he wouldn’t.

But you know where this is going, right?
The next year, Keyser sent out approximately 120 packages to various news outlets, elected officials, and businesses. The materials sent to news outlets and elected officials were placed in business envelopes. They contained a CD printed with a picture of Colin Powell, the book title, and Keyser’s name. The CD contained over half of the contents of Keyser’s book. He attached a white sugar packet to the front of the CD with the sugar markings covered by a label stating ‘Anthrax’ in large letters, ‘Sample’ in smaller letters, and an orange and black biohazard symbol.

The materials sent to businesses were placed in purple greeting card envelopes. They contained a card with the same Colin Powell picture and ‘Anthrax’ sugar packet on the front and a short blurb about the book inside. The card directed recipients to visit a website to learn more about the book.
This time, Keyser was charged criminally as a result of packages sent to a California Congressman, a McDonald’s, and a Starbucks. He was convicted on five counts and sentenced to 51 months in prison. His convictions stood on appeal, although the court vacated his sentence due to a miscalculation of the Sentencing Guidelines.

Keyser’s most novel argument was that his promotional scheme was protected by the First Amendment. The court disagreed, finding that the mailings constituted true threats and that Keyser at least knew they could be interpreted that way:
We also conclude, after reviewing the record as a whole, that Keyser had the requisite subjective intent to threaten when he mailed the packages to McDonald’s and Starbucks. At trial, Keyser testified that he was not trying to scare the people who received his packages and letters, and that he did not want people to believe the packets actually contained anthrax. However, he did agree at trial that he knew that some people ‘might at least briefly be concerned that maybe this is real anthrax.’ He also stated that he intended the packets to be ‘provocative’ and wanted people to have ‘a reaction’ and be ‘concerned about the danger we’re in.’ He testified that he was not trying to cause a panic, but agreed that attracting attention to the book ‘was definitely worth it even if people were frightened.’

One of the agents who interviewed Keyser after his arrest testified that Keyser said, ‘Well, I did want it to cause concern. I wanted to cause a buzz.’ Keyser also told him that ‘[h]e wanted people to believe they had received a sample of Anthrax; that they wanted him [sic] to have the visceral reaction to seeing it so it would drive his message home.’ The same agent reported that Keyser expressed that he expected the FBI to contact him after he sent out his 2008 mailings.
He was certainly right on that score. Regardless of what sentence Keyser ultimately receives on remand, one would think he might have learned his lesson at this point. But as the Ninth Circuit Blog points out:
Quoting Protestant reform leader Martin Luther, Keyser refused to recant: ‘I neither can nor will make any retraction, since it is neither safe nor honorable to act against conscience.’
Presumably the sequel to Anthrax: Shock and Awe Terror will be nailed to a set of big wooden doors somewhere. That would not be the worst promotional idea I have ever seen:

December 14, 2012

Friday Review: 2012 Short Takes (Part 1)

Since there’s been so much new music that came out this year, and we’re quickly running out of Fridays (!), here’s the first of a two-part wrap up of some of the other interesting new music I haven’t had a chance to write about this year.

Live, by Mars Hollow and The Gettysburg Address, by Moon Safari: Both of these albums were recorded as ROSFest 2011, which is why I got them, since I was there in the flesh to see these two bands perform. Both of the performances are excellent (as they were in the flesh), but the end products come across very differently. Neither album contains either band’s entire set (although the Moon Safari is a double), but the Moon Safari album is pieced together so it sounds like a seamless performance, complete with between song patter and such. On the Mars Hollow album, by contrast, each tune fades in and out and stands apart from the others. It could have been taken from many performances, not just one. It makes for a less satisfying listen, but both albums are worth having.

Made In Belgium, by Aranis: Perhaps more than any other band in the RIO/avant prog ghetto, Aranis straddles the line between rock and modern chamber music. That’s even more true on their latest release, given that only one of the 12 tracks on it is written by a band member. The rest are by a host of other Belgian (as the title suggests) composers, including Daniel Denis of Univers Zero and Roger Triguax of Present. Is it rock? Who knows – and who cares, it certainly does rock. These nearly all acoustic tracks (Trey Gunn guests on one track – gotta’ plug the Warr Guitar in, I imagine) are propulsive, intense, and fascinating. Not for everybody, but if you want to hear something different (even from a proggy standpoint), you can’t do much better.

Senna, by Mahogany Frog: I love this band. I picked up their last album, Do5, in advance of their performance at ProgDay. It kicked my ass. Aforesaid performance at ProgDay kicked my ass even harder. Could a new album possibly keep up the ass kicking streak? Better believe it. If anything, Senna (an homage to the man?) captures the thrill of their live set better than their previous efforts. Songs build organically, a heady mix of rock, psychedelica, jazz, and electronica. The results are some of the most beautiful cacophony you’ll ever hear. Don’t believe me? Check it out free at Soundcloud.

Wing Beat Fantastic, by Mike Keneally: I’m not a huge fan of XTC, but when I heard that Keneally was working on album of songs co-written by Andy Partridge, I was all for it. For all Mike’s eccentricity and formidable musical flights of fancy, he can write a mean little pop tune. But calling the material on this album “little pop tunes” doesn’t do it justice. Mike took the bones sketched out together with Partridge (who only contributes a couple of drum loops musically) and fleshed them out (Mike added some self-penned instrumental bridges and one full track of his own). In typical Keneally fashion, the resulting tunes are dense, multi-layered little gems. If this were a just world, he’d be famous for them:

December 12, 2012

Zero Dark Bullshit?

Do you have to see a movie before you can judge it? I don’t mean on a “thumbs up/thumbs down” kind of level. I’m talking about on a moral level, deciding about whether the message of the movie is worth condemning. Do you have to see Birth of a Nation to know it’s profoundly racist? Do you have to see Triumph of the Will to know it’s a blinkered piece of propaganda?

Zero Dark Thirty, the new film about the hunt of Osama bin Laden, from director Kathryn Bigelow and writer Mark Boal (the team behind Oscar winner The Hurt Locker), is raising that issue. Specifically, the films brutal depiction of the torture of terrorists by CIA operatives is causing some folks to wonder if it’s an apologetic for the torture. The debate’s been simmering since the film’s gotten into the thick of the awards season, showing up on numerous “best of” lists for the year (it doesn’t officially open outside of NY and Los Angeles until January 11).

Blowback began in the New York Times, where Frank Bruni commented that:
I’m betting that Dick Cheney will love the new movie ‘Zero Dark Thirty.’
That’s because:
‘Enhanced interrogation techniques’ like waterboarding are presented as crucial to that search [for bin Laden].

* * *

And by the movie’s account, it produces information vital to the pursuit of the world’s most wanted man. No waterboarding, no Bin Laden: that’s what ‘Zero Dark Thirty’ appears to suggest. And the intelligence agents involved in torture seem not so much relieved as challenged by Obama’s edict that it stop. Their quest for leads just got that much more difficult.
Glenn Greenwald picked up on Bruni’s criticism. Although he explicitly noted that he hasn’t seen the film and was only working off of reactions to it, he writes:
With its release imminent, the film is now garnering a pile of top awards and virtually uniform rave reviews. What makes this so remarkable is that, by most accounts, the film glorifies torture by claiming - falsely - that waterboarding and other forms of coercive interrogation tactics were crucial, even indispensable in finding bin Laden.
And as Greenwald catalogs, his reaction is not unique:
Other reactions to the commentary from film reviewers from those who haven't yet seen the film was offered yesterday by NYU Journalism Professor Jay Rosen (‘WTF is Kathryn Bigelow doing inserting torture into her film, Zero Dark Thirty, if it wasn't used to get Bin Laden?’); Mother Jones' Adam Serwer (‘The critical acclaim Zero Dark Thirty is already receiving suggests that it may do what Karl Rove could not have done with all the money in the world: embed in the popular imagination the efficacy, even the necessity, of torture’); The Daily Beast’s Andrew Sullivan (‘Bigelow constructs a movie upon a grotesque lie’); and The Daily Beast’s Michael Tomasky (‘Can I just say that I am equally bothered, and indeed even more bothered, by the fact that the movie opens with 9-11’).
It is true, as Adam Serwer over at Mother Jones recounts that numerous sources have established that the information that led to bin Laden’s eventual demise was not procured by torture. So if a film that’s tagline is “The Greatest Manhunt In History” and which the director claims was made using “almost a journalistic approach,” getting such a fact wrong is pretty inexcusable.

But is that really what the film shows? After all, Greenwald and many others haven’t actually seen it. Are film critics so swayed by the technical aspects to check their morality at the door?* Consider this take from Spencer Ackerman at Wired:
Kathryn Bigelow’s new film about the decade-long manhunt for Osama bin Laden begins with an unsparing, nauseating and frighteningly realistic look at how the CIA tortured many people and reaped very little intelligence. Never before has a movie grappled with post-9/11 torture the way Zero Dark Thirty does. The torture on display in the film occurs at the intersection of ignorance and brutality, while the vast, vast majority of the intelligence work that actually does lead to bin Laden’s downfall occurs after the torture has ended.
He goes on to describe what happens on screen in some detail:
These are not ‘enhanced interrogation techniques,’ as apologists for the abuse have called it. There is little interrogation presented in Zero Dark Thirty. There is a shouted question, followed by brutality. At one point, ‘Maya,’ a stand-in for the dedicated CIA agents who actually succeeded at hunting bin Laden, points out that one abused detainee couldn’t possibly have the information the agents are demanding of him. The closest the movie comes to presenting a case for the utility of torture is by presenting the name of a key bin Laden courier, Abu Ahmed al-Kuwaiti, as resulting from an interrogation not shown on screen. But — spoiler alert — the CIA ultimately comes to learn that it misunderstood the context of who that courier was and what he actually looked like. All that happens over five years after the torture program initiated. Meanwhile, the real intelligence work begins when a CIA agent bribes a Kuwaiti with a yellow Lamborghini for the phone number of the courier’s mother, and through extensive surveillance, like a police procedural, the manhunt rolls to its climax. If this is the case for the utility of torture, it’s a weak case — nested within a strong case for the inhumanity of it.
Likewise, Emily Bazelon at Slate suggests things are a bit more nuanced:
The movie thus doesn’t show a vicious act of torture leading straight to a game-changing piece of intelligence, or even a unique piece. After all, the interrogation of Amar takes place in 2004; Bin Laden remained free for seven more years. And yet it’s Amar’s information that feels crucial, because it’s presented as the root of Maya’s obsession with this particular lead. This is the way in which the movie credits torture: It suggests that the tenacious agent who led the hunt wouldn’t have been moved to do so without this piece of information given up by a detainee who’d been tortured.

Is this actually what happened? It’s hard to say for sure.
And, for what it’s worth:
Boal told that despite the gruesome torture scenes, viewers who come away thinking torture was the pivotal tactic in nabbing bin Laden, rather than one method used in a decade-long hunt, are ‘misreading the film.’
I can’t say whether either Ackerman’s or Bazelon’s impressions are accurate – I haven’t seen the movie yet, of course – but neither can Greenwald and others who haven’t seen the movie say it isn’t. Context matters, particularly when you separate the work itself from how it’s either promoted or described shorthand. From the advertising, one might expect the focus of Zero Dark Thirty to be on the raid itself and the time period just before when it was planned and the intelligence gathered to support it. But perhaps the movie tells a broader story, one in which the national urge for revenge took some ugly and dead end turns before it turned out the way it did. Maybe it’s a metaphoric examination of the entire war on terror, in which we gain the ultimate prize (bin Laden in a watery grave), but at tremendous cost? Who can tell without actually seeing it.

I saw some similar criticisms, in reverse, of Argo, Ben Affleck’s slick depiction of the rescue of a small group of Americans who escaped the embassy in Tehran in 1979. People argued it didn’t go far enough into the background of the Iranian revolution or that it didn’t deal enough with the hostages who didn’t make it out of the embassy. But that’s not what the movie was about. It was about a specific event that occurred against the backdrop of those events. It was never supposed to be a long form examination of the Iranian revolution.

Which is just to say, you really need to see the movie before you decide its morally horrific. Is there some reason to think that critics, who have actually seen it, just check their moral compasses at the door? Or is the film perhaps more nuanced and subtle than Bruni, et. al., are giving it credit for? Who knows? I suppose we common folk will need to wait until January to find out.

In the end, it’s best to judge for yourself.

* Who do they think they are, lawyers?!

December 11, 2012

Every War Has Unintended Consequences

The latest popular cause amongst drug warriors is the abuse of prescription drugs, particularly powerful pain killers like oxycodone. Resources have shifted to prosecuting those who sell pills and more vigorous regulatory schemes have sprung up around the legitimate distribution of them. This is having some impact, as the use of prescription drugs in some areas is decreasing.

But is it really a success, or are these initiatives just forcing a change in the behavior of users? As with any war, were the drug warriors prepared for this kind of unintended consequence (via):
As efforts to crack down on the abuse of prescription drugs have worked, a new problem has emerged, with addicts who can no longer get their fix by popping pills turning to the old-fashioned street drug heroin, health and law enforcement officials say.

The trend shows up in local arrests, drug seizures and overdose deaths. Drug dealers are finding new markets in the suburbs, where teenagers once got their stash from local drugstores or their parents’ medicine cabinets, some experts say.

‘The kids who got addicted to prescription pills are flipping to heroin, and, as a result, these kids are dropping like flies,’ said Mike Gimbel, a longtime drug counselor in Baltimore County who now works at University of Maryland St. Joseph Medical Center.
It’s not just increased criminal crackdowns producing that kind of shift. As the New York Times reported last year, when pill makers reformulated their products to make them harder to use illicitly (i.e., crush and snort/shoot), users turned elsewhere:
Michael Capece had been snorting OxyContin for five years when a new version of the drug, intended to deter such abuse, hit the market last summer. The reformulated pills are harder to crush, turning instead into a gummy substance that cannot be easily snorted, injected or chewed.

Instructed by his dealer, Mr. Capece, 21, tried microwaving one of the new pills, then sniffing up the burnt remains. Other addicts have tried to defeat the new formula by freezing, baking or soaking the pills in solvents ranging from soda to acetone. Many are ending up frustrated.

* * *

Purdue Pharma, the maker of OxyContin, may have succeeded for now in reducing illicit demand for its reformulated drug. But in several dozen interviews over the last few months, drug abuse experts, law enforcement officials and addicts said the reformulation had only driven up interest for other narcotics.
In the words of one treatment specialist, rather than stopping, users shifted
to what appears to be a more economical high, which is heroin. 
It’s like a game of pharmacological Whack-a-Mole.

Ultimately the problem isn’t that oxycodone is worse than heroin is worse than cocaine or what have you. The problem is that the War on (Some People’s) Drugs is a war a human nature and one that fundamentally cannot be won.

Years ago I saw an HBO documentary about methamphetamine, back before it was the momentary focus of the drug warriors. It was about a group of people somewhere in the Midwest (I want to say Missouri, but I might be wrong) who were users and minor dealers, selling to fund their own habits. At first, they appear like the pathetic junkies of popular conception, shiftless and no good for anything but getting high. But the more you pay attention to the world around them, depressed and filled with a vacuum of opportunity, it becomes clear why they seek solace in drugs. It’s not pathetic that they want a better life, it’s pathetic that, we fail to provide them any better ways of finding it.

If the war can’t be won, why are we still fighting it? It’s not as if the war on mind altering substances never had any unintended consequences:
Instead of resurrecting from the pit a body politic of newly risen saints, Prohibition guaranteed the health and welfare of society’s avowed enemies. The organized-crime syndicates established on the delivery of bootleg whiskey evolved into multinational trade associations commanding the respect that comes with revenues estimated at $2 billion per annum. In 1930 alone, Al Capone’s ill-gotten gains amounted to $100 million.

So again with the war that America has been waging for the last 100 years against the use of drugs deemed to be illegal. The war cannot be won, but in the meantime, at a cost of $20 billion a year, it facilitates the transformation of what was once a freedom-loving republic into a freedom-fearing national security state.
One of the problems with declaring “war” on something is that it’s hard, if not impossible, to admit defeat and move on. Too much invested, too much time, too much money (too many lives, in some cases). But holding out for things to turn around when they won’t only prolongs the misery. As I’ve said before, sometimes the only winning move is deciding to stop the fighting.

December 7, 2012

Friday Review: Sounds That Can’t Be Made

I’ve mentioned more than once that 2012 has been an exceptional year for new music in the prog world, with stunning releases from Rush and 3rDegree, among others. Even now, in December, I’ve got a fresh stack of discs that includes 2012 releases from Anglagard, Aranis, Big Big Train, and Mahogany Frog. It’s been a good year. However, it was inevitable that a much anticipated release would come down the pike that didn’t live up to that high standard.

But it sucks that that inevitability was the new Marillion album.

Don’t get me wrong – Sounds That Can’t Be Made is a pretty good record. Admittedly, I’m a fanboy, so even bad Marillion album (I’m looking at you, Holidays in Eden) ranks pretty high compared to the rest of the world. But it’s not amongst their best work and, in 2012, that means it’s pretty far down the table.

The title track is a pretty good example of why the album isn’t doing much for me. It isn’t until about 2/3rds of the way in (the “aurora borealis” section) that it really kicks from “meh” to interesting. But by that point, you’re not really engaged with the song anymore. Most of the tracks on the album have moments of brilliance, but they’re buried in puddles of mediocrity. That’s particularly true of the two epics, “Gaza” and “Montreal,” in which the connective material between sections just doesn’t hold up.

In fact, it’s the shorter tracks that come closest to success. “Power,” which was one of two tracks debuted during the band’s US tour this past summer, works pretty well, as does “Invisible Ink.” Neither of them are fantastic, but they’re both solid. Similarly, closer “The Sky Above the Rain” builds organically to a lovely conclusion, although it takes its sweet time getting there.

“Gaza,” as you might imagine from the title, has been the controversial song off the album amongst the fan base. Personally, I think Hogarth’s position that it’s a humanitarian song, not a political one, gets it right. It’s not really about the geopolitical situation, it’s about the realities of life on the ground. In that way, it’s a bit like “Easter,” which he once introduced as being dedicated to “everybody in the world caught up in a war in which they want no part.” Given that, I wish the lyrics were better and a little less on the nose. Were it a five-minute tune, that’s one thing. Over an old-fashioned album side, it quickly becomes a bludgeoning.

I generally classify songs on an album as falling into one of three categories. First, there’s the standout tracks, the ones that make you reach for the CD and put it on in the first place. Second, there’s those tracks that are good, but not great, and don’t demand to be heard, but if you’re putting the album on anyway, what the hell. They’re average and ordinary. Finally, there’s the tracks that get skipped more times than not. Sadly, none of the tracks on Sounds That Can’t Be Made fall into the first category. None of them fall into the last one either, thankfully, but if there are two words I don’t associate with Marillion it’s “average” or “oridinary.”

Sounds That Can't Be Made, by Marillion
Released 2012

1. Gaza (17:31)
2. Sounds That Can't Be Made (7:11)
3. Pour My Love (5:59)
4. Power (6:07)
5. Montreal (14:00)
6. Invisible Ink (5:44)
7. Lucky Man (6:54)
8. The Sky Above The Rain (10:34)

Steve Hogarth (vocals, keys, percussion)
Mark Kelly )keyboards)
Pete Trewavas (bass, backing vocals)
Steve Rothery (guitars)
Ian Mosley (drums)

December 6, 2012

And Now, A Quiz

Assume you are walking down the street, minding your own business. Coming the other way, or at least on some sort of intercept course, is a police officer. He’s not running or shouting or doing anything exceptional. He walks up to you and says, “hey, pal, can I talk to you for a minute?”

Let’s assume further that you’re in no mood to talk. You’ve had a long day at work and just want to head home and crack open a beer. Or you just had a fight with your girlfriend and you just want to head home and crack open a beer. Or, perhaps, those pre-election poll numbers weren’t so biased after all and you just want to head home, crack open a beer, and dream of 2016. Regardless, you don’t want to deal with anybody on the way home, much less a cop.

So what do you do? More to the point, what do you think you have to do? Can you ignore the cop? Can you say, “sorry, officer, I’m in no mood to talk” and go about your way? Or do you have to stop and talk?

I’m guessing most people figure they have to stop and talk. After all, when a cop asks you to do something, it’s backed up with the authority of the state. He’s got the gun, the night stick, and the handcuffs, after all. Although practically that might be the case, legally it’s not. When it comes to the Fourth Amendment’s protection against unreasonable seizures, the Fourth Circuit explains*:
[t]his guarantee does not extend to all police-citizen encounters. Rather, as the Supreme Court has instructed, ‘[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.’ Police-citizen encounters that are consensual require no justification, but those that are not consensual impose a detention on a citizen and so must be supported by an officer's reasonable, articulable suspicion.

As a general matter, law enforcement officers do not effectuate a detention or seizure ‘merely by approaching individuals on the street or in other public places and putting questions to them.’ But, an officer’s authority to initiate an encounter with a citizen rather than detain him is ‘no greater than[ ] the authority of an ordinary citizen to approach another on the street and ask questions.’
Which, of course, begs the question – is any encounter with a cop really “consensual”? Over at Slate’s new crime blog, Justin Peters looks at the issue and generally concludes that there isn’t:
The idea of a consensual encounter is a nice one, conjuring an image of lovers sneaking away for some mutually fulfilling afternoon delight. But, in reality, a police officer who pursues a ‘consensual’ conversation is often just looking to screw you. As Janice Nadler and J.D. Trout note in their fascinating paper ‘The Language of Consent in Police Encounters,’ many consensual engagements are pretexts for less-consensual behavior. ‘The police officer’s main purpose is to get information about what the person is doing, and get permission to do something else, like search their person, house, car, bags, etc.,’ they write.
So it’s bad enough that officers use the consensual loophole as a way to get into (theoretically) more regulated encounters with the populace. But at least they’ve got a good eye for suspicious folks, right? I mean, if people aren’t doing anything wrong, what do they have to hide?
Most people who are stopped by the cops aren’t doing anything illegal. In New York City, for example, the NYPD’s stop-and-frisk policy specifies that cops are only allowed to stop someone if, just like in Florida, they have an articulable suspicion that he or she is involved in criminal activity. But of the 685,724 police stops initiated in 2011, 605,328 of them found absolutely nothing. That’s almost a 90 percent whiff rate. Either the NYPD is staffed by a bunch of Mr. Magoos, or the police are violating the rules of the stop-and-frisk program pretty egregiously. But it’s hard for a citizen to challenge an improper stop and frisk, because any his-word-against-yours system favors the guy with the gun and the badge.
Courts assume, quite incorrectly in my experience, that everyone knows the law and knows their rights. Squishy concepts like whether someone is free to leave police questioning (which determines whether Miranda warnings are given) are examined using a “reasonable person” standard that’s closer to a “reasonable lawyer” (or “reasonable judge”) standard. Most people, when faced with the inherent authority of a police officer, will do whatever he says.

The law needs to catch up with reality when it deals with real world application of Constitutional principles. Reexamining the legal fiction of “consensual” encounters with police would be a good place to start.

*US v. Jones, 687 F.3d 293, 298-299 (4th Cir. 2012)(citations omitted)

December 5, 2012

While I Was Away

So, a few things have transpired since I went away to write my little book this year. The biggest, of course, is the election, which is finally behind us, at least until the Iowa caucuses start up in a few minutes. Here’s a few stories that caught my eye while I was away:

Citizen’s United's OK After All
I’ve never been a fan of the left’s freak out over Citizens United. I continue to believe that most of the people who got so worked up about it didn’t really know what the law at issue actually did. Regardless, in the wake of the election, it looks like liberal organizations made pretty good use of the decision, after all:
This may be one of the major takeaways of the 2012 campaign: When liberals learned to stop worrying and love Citizens United, they benefited from it more than the conservatives who supported the decision.
That’s not completely fair, since one of the two groups mentioned in the article, the AFL-CIO, supported the winning side in Citizens United via its amicus brief. Still, it does show that, even if Citizens United meant metric tons of additional money got pumped into the election, spending that money on advertising didn’t have much impact. The groups discussed in the article used PAC money to fund on-the-ground get out the vote operations, which provided much more bang for the bucks.

Rules for Thee, But Not for Me
One of the thing that kept me from voting for Obama this year is his fondness for an expanded drone war that knows know particular bounds, either geographically or legally. Apparently, someone in the administration must be bothered by it, too, but only to the extent that some other president may get to enjoy the same lack of oversight as Obama. Hence:
Facing the possibility that President Obama might not win a second term, his administration accelerated work in the weeks before the election to develop explicit rules for the targeted killing of terrorists by unmanned drones, so that a new president would inherit clear standards and procedures, according to two administration officials.
But, of course, now that the election’s over and there’s no fear that this particular machinery of death will fall into Romney’s hands, progress has slowed and the project:
will now be finished at a more leisurely pace, the official said.
Brilliant. If you’re wielding power that you’d be squeamish about someone else wielding, you should probably think twice about wielding it in the first place.

But I Thought People Found Jesus In Prison?
I’m all for creative sentencing in criminal cases, particularly for first offenders and juveniles. Even someone who takes a life, as an Oklahoma teen did when he crashed the truck he and another teen were riding in, ejecting the other and killing him, sometimes there’s room for mercy. But is there ever room for an unconstitutional coercion? Amazing enough, Oklahoma District Court Judge Mike Norman sees nothing wrong with giving said teen a suspended sentence, contingent on his attending church services for the next ten years.

The problem isn’t so much in this case – the defendant agreed to the deal and was already a regular attendee of an approved church (which begs the question . . .). So there will be no appeal for a higher court to decide if it’s inappropriate (the ACLU is trying an ethics complaint against the judge, however). But what about the next case, which involves a defendant that’s either not religious or doesn’t belong to Norman’s flavor of choice? What’s the option for an atheist, agnostic, Muslim, or Hindu? Therein lies the problem. Norman’s creative sentence gets the force of the state behind a religious institution, which is what the First Amendment is designed to guard against.

December 4, 2012

The Narrow Margin

I’ve done NaNoWriMo* five times now. The goal of NaNo, of course, is to produce 50,000 words in a month, either as a complete novel or as the sizeable beginning of one. In prior years when I’ve won, I came to December knowing that, while NaNo was over, the draft wasn’t. One pushed on to over 85,000 words, another to 135,000 (another still crashed and burned shortly after NaNo ended).

Going into NaNo this year I knew it would be a bit different. My project for this year, Moore Hollow, began as a short story idea that quickly spiraled into something bigger. I figured it would be complete at about the 50,000 word mark, but didn’t quite realize how close it was going to be:

. . . by 306 words! And that came only after I went back and punched up a scene with a little more detail. I actually considered calling it complete just shy of the 50,000 mark. It still would have been a novel, for SFWA purposes (which makes 40,000 the Rubicon), but I’m glad I went back. I think that scene works better now.

So what is Moore Hollow about, anyway? It’s about a British investigative journalist, fallen on hard times, with family ties to West Virginia. He heads down into the coal fields to investigate a story about a local election in the early part of the 20th Century in which, well let’s just say, some strange things occurred. What he finds out and, more importantly, what he does with that information, is the heart of the book.

Is it any good? Hard to say. I should have a better idea when I whip through the second draft early in 2013.

* AKA National Novel Writing Month

October 31, 2012

Check Your Calendars

Yes, friends, if you’ll look to your monthly time keeping tool of choice, you’ll see that it’s almost November. In addition to the thankful end of the interminable election campaign, that also means it’s time for . . .

That’s right, November is National Novel Writing Month, or NaNoWriMo, during which intrepid souls like myself attempt to produce a novel (or at least the first 50,000 words of it). This will be the fifth year I’ve taken part.

Which means that, like last year, Feeding the Silence will essentially go dark for the month. Focusing on the novel writing last year got me to the NaNo goal of 50,000 words, even though the project cratered shortly thereafter. As it happens, the idea I was working on last year was really more of a short story thing than a novel. I still need to go back and salvage the good parts.

Ironically, this year is flipped around, with my NaNo project being something I originally tried to flesh out as a short story. I think it will work much better in a longer format, so we’ll see.

What’s it about? Let’s just say it plays on the idea that, historically, many West Virginia elections have involved the participation of the dearly departed. But that’s just the underlying idea – we’ll see how it all pans out.

Wish me luck and I’ll see y’all in December!

October 24, 2012

Couldn’t Happen to a Worse Person

I try not to get caught up in other people’s misfortunes – schadenfreude isn’t very attractive – but I’ll make a special case for Nancy Grace. Regular readers know I have a special spot in my heart for the loud-mouthed cable news legal “analyst.” It does that spot some good to know she’s getting sued for libel (via TalkLeft):
A day before his parole hearing, Michael Skakel filed a defamation lawsuit against CNN television host Nancy Grace alleging that she made false statements on her show about evidence in the 1975 murder case for which he has been sentenced.

* * *

In the segment, ‘Kennedy Cousin Asks Judge for Shorter Jail Time,’ Grace asks [Tru-TV host Beth] Karas if Skakel was masturbating in a tree near [murder victim Martha] Moxley's window. Karas responds: ‘His DNA was found.’
But apparently that’s not true. So, have fun with that one, Nancy!

Karmic juiciness aside, the case does raise an interesting issue, at least in my tiny mind. Skakel is a convicted murder, after all. Whatever doubts there may be about his factual guilt, he’s guilty in the eyes of the law. Given that the entire point of a defamation claim is that the plaintiff’s reputation has been sullied by the false statement, can a convicted murderer be defamed? Particularly for something related to his conviction?

With the caveat that I’m far from an expert in the area, the answer doesn’t appear to be all that clear. Courteously, the Connecticut judiciary has put its model jury instructions online to help get the lay of the law.

Start with the generic instruction on defamation, which sets forth three elements:
To establish a case of defamation, the plaintiff must prove the following:

1. the defendant published a defamatory statement to a third person;

2. the defamatory statement identified the plaintiff to a third person; and

3. the plaintiff's reputation suffered injury as a result of the statement.
Likewise, the instruction specifically for libel requires the plaintiff to prove that “the publication caused harm to the plaintiff.” So injury to reputation appears to be a key part of the case.

But not so fast – Connecticut law also provides for per se versions of both libel and slander.* To quote the libel instruction:
Certain written defamatory statements are considered to be so harmful in and of themselves that the person to whom they relate is entitled to recover general damages for injury to reputation, without proving that any special or actual damages were caused by the statements. These defamatory statements are called libel per se. Libel per se is a type of libel in which the defamatory meaning is apparent on the face of the statement.

When the defamatory words are libel per se, the law conclusively presumes that there is injury to the plaintiff's reputation. The plaintiff is not required to prove that (his/her) reputation was damaged.
The instructions go through various categories of per se defamations, with the slander categories more wide open than the libel ones. Whether public masturbation falls into those categories, I can’t say (it doesn’t at first glance). If it doesn’t, Skakel will have to prove that Grace’s blunder damaged a reputation already diminished (if not destroyed) by a murder conviction. That might be a tough sell to a jury, or even a judge. It will be interesting to see how Skakel’s lawyers play things.

It will also be interesting to see how Grace and company defend their “honor.” Here’s hoping they can’t.

* Libel is written defamation, slander is spoken defamation. I’m not really sure under which branch a TV program falls.

October 23, 2012

Vintage Lawyer Bashing

I recently read an interesting law review article that dealt a lot with the tension in in the historical development of the American idea of the “rule of law.” Specifically, the tension between the technical law as written and larger, more nebulous concepts of justice and common sense. As you might expect, bound up in that discussion was the historical American view of lawyers.

The short version is that we’ve always been on the shit list, even though many bigwigs of American history come from the legal profession. It’s part of the job description.

But just how far back does it go? Consider this quote from a census taken in New Hampshire in 1770 and reported to the king:
Grafton County . . . contains 6,489 souls, most of whom are engaged in agriculture, but included in that number are69 wheelwrights, 8 doctors, 29 blacksmiths, 87 preachers, 20 slaves and 90 students at the new college. There is not one lawyer, for which fact we take no personal credit, but thank an Almighty and Merciful God.
No wonder I’m an atheist!

October 19, 2012

Friday Review: The Apostle

When people complain about whether a particular story works or doesn’t, most of the time they focus on how things end. Either “it just ends” or “the ending doesn’t make sense” or “I thought it was over but it kept going.” You know what I’m talking about. But just as important to the success of a story as when and how it ends is when and how it begins.

After all, most characters in any story exist before and after the story we actually see. They have backgrounds, histories, triumphs and setbacks that inform who they are, but that we never quite figure out. The question is, how is the best way to spend time with them?

The biggest flaw of The Apostle, written and directed by Robert Duvall, who also delivers an amazing performance as the titular pastor, is when it begins. That’s not because the flim’s too long (although, at just north of two hours and 15 minutes, it is), but because by the time the story really gets going, we know too much about Duvall’s character, Sonny. It’s a tale of redemption, but we get to know Sonny too well to actually want him to be redeemed.

He’s a preacher. And not one of those quiet, speaks in metaphor, Unitarian types, either. I’m talking full blown gonzo, just short of speaking in tongues (he refrains to get on the radio), revival tent firebrand. He doesn’t just talk to God, he shouts. He is the kind of asshole who, upon finding a car accident along his drive, stops not to provide first aid, but to confront the dying driver with the fact that he’s going to hell if he ain’t right with Jesus.

If that was the only thing wrong with him, the following tale of redemption would mean much more. Instead, we see Sonny stalk his estranged wife (throwing a rock through her window in the process), drag her around by her hair (in public) in a way that shows he’s no stranger to domestic violence, and smash her new boyfriend in the head with a baseball bat, killing him. What’s worse, Sonny wraps his problems up in his religion, such that his problems aren’t caused by his own violence and rage, but by the devil.

But that’s only the first half hour of the movie. At that point, Sonny flees and finds refuge in a small town as the “apostle” E.F. The rest of the movie tells the story of how he establishes a new church and builds it into a community landmark. It could be a moving, even charming, tale, did we not know what an asshole Sonny really was. I’m not one to argue that a person is beyond redemption – I’m a criminal defense lawyer, after all – but killing a man in a blind rage and then waving it away as part of some religious world view is a pretty high hurdle to cross.

Which is to say that the question of when to start the story has a great impact on what comes behind. I’ll be honest – Sonny was never a character that was going to worm his way into my heart. Having said that, had his backstory been a little more mysterious, or at least doled out along the path of his attempts at redemption, it would have made for a more compelling story. As it is, my main thought for most of The Apostle was “is he really going to get away with this?”

Which is, perhaps, the question Duvall wanted viewers to be asking as the film progressed. I kind of doubt it, but it’s possible. Whether he does, in fact, “get away with this” depends on your perspective and whether you value the enforcement of secular law or spiritual redemption.

The Apostle isn’t a great film, mostly because of how it tells its story. It does revolve around a great performance, however, so it’s well worth seeing.

On an ironic note, The Apostle and last week’s Friday Review subject, Red State, both end with a fundamentalist preacher incarcerated and unwilling to stop trying to preach the good news. Red State’s response (delivered by Kevin Smith, off camera) is “shut the fuck up.” Nobody does the same in The Apostle, but I imagine someone was thinking it.

The Details
The Apostle
Released 1997
Written and directed by Robert Duvall
Starring Robert Duvall, Farah Fawcett, Miranda Richardson, et. al.

October 18, 2012

In Vino Addo

When I buy wine, I have a very few, completely unscientific things I look for. One is a cork, as I’m wary of wine with a screw top (although those are becoming increasingly popular). The other is a cool label or name, something that jumps out at me. After that, the actual details of the stuff in the jug is purely secondary.*

As it happens, one afternoon I was driven to purchase a bottle of wine called The Night Harvest:

The label isn’t particularly interesting, but something about the name grabbed me. I think the vintner saw it as an expression of innocence or some such. But I took it just the opposite way. To me, “the night harvest” sounds like a euphemistic way of dealing with a horrible act of violence. Something that regularly comes and sweeps something, or someone, away for nefarious purposes. I think it also puts me in mind of The Night Watch, the definitive live document of the last 1970s variant of King Crimson.

With that in mind, I sat down and started to build a track. I wanted to use some repetitive phrases and rhythms to build a sense of foreboding as the harvest is about to begin. I layered several different sounds on top of one other, including the sound of marching feet. Everything breaks loose when the harvest actually happens, then things shift again with some mournful phrases as the horror subsides. Maybe, even, there’s some hope in the aftermath.

In addition to my own sounds, I used some samples from Freesound, which I first learned of through Richard Barbieri’s solo albums. People upload various samples and allow them to be used with attribution. This track uses the following samples:
  • 25273_freesound_argghh-ses2.wav
  • 20186_patchen_foot-stomp-d.wav
  • 70100_gregswinford_errir-forest.mp3

“The Night Harvest” is the longest tune I’ve put together since “Outpatient Beast,” but is much more satisfying. With “Outpatient Beast” I started out with the idea of stringing several sections together in order to create a prog-esque epic. Frankly, it shows. “The Night Harvest,” on the other hand, grew organically to this size and, I think (I hope), works much better in the transitions and such.

So, grab a glass of wine and enjoy!

* For the record, this appears to work pretty well.

October 17, 2012

Music for a Parasite

Over the summer, you may have heard about a study which concluded that folks who clean their cat’s litter box regularly are at an increased risk for suicide. As it turns out, the “increase” was beyond minimal, but the science behind why there’s any increased risk at all was kind of fascinating.

As explained in this story from All Things Considered, there’s a parasite in cat poop that first needs a living host, then needs to escape from said host. As a result, it causes the host to behave less cautiously than it might otherwise. As for bugs:
Janice Moore, a biologist at Colorado State University, says one example is a tiny worm that infects pill bugs.

JANICE MOORE: And when those worms mature in the body cavity of those pill bugs, then the pill bugs behavior changes and it roams around out in exposed areas. It no longer cares about crawling under things, which is ultimately really, really bad for it.

HAMIILTON: But good for the worms; reckless pill bugs are more likely to end up in the stomach of a bird which is where the worms complete their lifecycle.
Driving home listening in the car, “reckless pill bugs” jumped out at me as a perfect name for a song title. So I wrote it down when I got home, along with countless others I keep handy.

A few days later, a rhythm wormed its way into my head during a meeting. I managed to quantize it on paper and thought that it might sound good as a one-note synth sequence. I took it home, programmed it, ran it through the Minimonsta and it sounded pretty good. It was up tempo, skittish, and sort of mechanical. I immediately thought, “this is a reckless pill bug!”

Once I decided to grow the track from there, things fell into place fairly quickly. The rest of the synth bits that match the driving rhythm were also programmed in ACID and driven through the Minimonsta. The bass riff came from the Minitaur, of course, as does the wobbly little lead bit in the middle section. A happy accident with a detuned oscillator, that.

As the song came together, I decided it needed one more thing – my voice. Not much of it and, naturally, not in its natural state. The Micron has a primitive, but effective, vocorder that I used to mess with me repeating the song title over and over. I’ll probably play around with that a little more in the future.

So, without further ado, the adventures of an addle-brained lil’ bugger and the passenger trying to get out:

Yes, I realize that the song title makes “pill bug” one word. Is it better if I claim laziness or artistic license?

Up tomorrow – something altogether darker and more epic!

October 16, 2012

It’s All About Tunes

A few weeks ago I mentioned reorganizing my online musical life, shutting down the old account at ACIDPlanet and consolidating things at Soundcloud. At the time, I took down all the tracks I had up at Soundcloud, in order to put them back up in the proper format and running order.

Yes, I’m that pretentious.

I’ve taken the cream of that crop and organized them into a new “set” (think of it as an album, if you wish) called Working Title. Unlike the two ADICPlanet sets, which made use of premade loops as well as my own stuff, these tracks are all my own. Here’s the set as it exists now:

Over the next couple of days, I’ll upload two more tracks to round out the set. I’m really happy with them, as they’re completely different from one another and both came from concrete ideas in my head, rather than just growing out of fortuitous doodles.

Speaking of reorganizing, it’s been a while since I showed what the studio setup looks like these days (click here for a bigger view):

For the gear heads, here’s what you see in that picture, from left to right:
  • Alesis SR-18 drum machine
  • Korg M50 workstation (bottom) w/ GFS Greenie Classic fuzz box
  • Alesis Micron virtual analog synth (top)
  • Korg Kaosilator synth
  • Zoom R-16 digital recorder
  • Peavey KR-1 amp
  • M-Audio Axiom-61 MIDI controller (bottom)
  • Nord Rack 2X w/Boss PH-2 Super Phaser (top left)
  • Moog Minitaur bass synth (top middle)
  • Berhinger MIDI controller (top right)
  • Gateway computer running ACID Music Studio and various software synths, including GForce Minimonsta and M-Tron and virtual versions of Korg’s M1, Wavestation, and Polysix synths

Up tomorrow – music inspired by a skittering little bug!

October 12, 2012

Friday Review: Red State

Disclosing my bias up front, I’m a big fan of Kevin Smith. Ever since my college roommate and I first rented Clerks way back in the days of VHS. I recognize his shortcomings as a filmmaker (as he does himself), but I like the overly talky scripts and, yes, the dick and fart jokes. Besides, it’s always nice to see a self-taught fat fuck make good (we can all dream). And the man tells some mean stories.

Unfortunately, when he steps out of his comfort zone, things get rocky. I didn’t think Jersey Girl was as awful as most people did, but it clearly wasn’t the bold breakout from the View Askew universe, to which he ran right back for Clerks II. I was hoping that Red State, which is ever further outside his comfort zone, might fare better. Sadly, it doesn’t.

Red State is actually three different movies, thrown together and jostling for attention during its run time. It begins in the most Smith-like way, with three high school boys excitedly planning to meet an older woman for sex via some kind of online service (one kid says, “it’s like Craigslist for people who want to get laid,” to which another says, “I thought Craigslist was all about people who want to get laid?”). It is, of course, a setup, in which the three are entrapped by their hookup (Melissa Leo, of all people) and drugged into unconsciousness. Like a setup for a teen horror flick.

But then one of the three kids awakes in a cage in a church, home of a Phelps-like clan of ultrafundie Christians. They not only spout the hate of the Phelps bunch, they take action – executing a gay dude (Saranwrapped to a cross, no less) they had earlier abducted from somewhere. Through a lengthy sermon from the leader (who is more long winded than even Jay), it becomes clear that our horny teens will meet the same fate. So, it’s a movie about a cult or fundamentalist religion, right?

Shift again. Contact with local law enforcement at the compound goes badly, which brings in the ATF to conduct a Ruby Ridge/Waco style siege that, of course, turns horribly bloody. There’s a layer of modern post-9/11 terrorist hunting in there, too. Things spiral down into a confusing firefight that seems to last longer than the war in Afghanistan. To top it off there is, possibly, the actual apocalypse, in a head fake that might have truly gone somewhere interesting.

Any one of those flicks might have worked on its own merit, but bumped up against each other none of them really get a chance to breed. The ATF materialize out of nowhere, for instance, without even the wherewithal to keep the local sheriff from carrying on in his own stupid way. The cult/religious stuff can only go so far, as we don’t really get beyond the placard slogans you’d see on the evening news (although Michael Parks, as the leader, is suitably chilling). By the end, with one exception, there’s no character to care about to the point that when the bullets start flying and the blood flows, you just want it to be over with.

I’ve read that Smith is basically done as a director, turning his attention to being a full time talker and social media personality (perhaps the Gore Vidal for the 21st century?). I hope he goes behind the camera for at least one more shot at a movie that exists outside the View Askew world. I’m pretty sure he’s got a good one in him, even if he hasn’t been able to find it yet.

The Details
Red State
Released 2011
Written and directed by Kevin Smith
Starring Michael Parks, John Goodman, Melissa Leo, et. al.

October 11, 2012

On Being Polled

After work yesterday I was where I frequently am – sitting on the living room floor in front of the TV with a PS3 controller in my hand – when the phone rang. Given the time of day I was sure it was a telemarketer of some sort, but since my caller ID is on the fritz I picked up anyway. Under normal circumstances, I tell telemarketers I’m not interested and hang up before they get into their spiel, but the woman on the other end of the line did something that made me hold on for just a second.

She pronounced my name right. You’d be amazed at how many different and interestingly wrong ways “Byrne” can come out of someone’s mouth.

Turns out she wasn’t selling anything, but asking questions for a “research” firm. I assumed it would be political, given the season, and I was right. So I settled in and answered a bunch of questions. It was an interesting experience.

This survey focused on West Virginia elections, particularly the governor’s race, although I was asked about the presidential race and the West Virginia senate election as well. Oddly enough, when it came to the West Virginia races, I was asked who I would vote for in races involving both all the candidates (i.e., throwing in the Mountain and Libertarian party candidates) and only the Democrat and Republican candidates, but for the presidential contest was only offered the Obama/Romney choice. To her credit, the lady on the phone accepted my “neither” answer on that one without complaint.

My guess is that this poll was being conducted on behalf of Bill Maloney, the Republican challenger to West Virginia governor Earl Ray Tomblin. I was specifically asked about my opinion of Maloney and whether it had changed recently, but wasn’t asked the same question about Tomblin. There were a long series of questions about which candidate most reflected certain ideas (regardless of which one you would vote for.) Thankfully, once again, when I answered “neither” to the question of which one “cared about people like me,” my inquisitor took that answer without question.

The pollster didn’t identify itself, so I have no idea whether the results of this inquiry will be made public or if it’s an internal poll done for one of the campaigns (that’s my guess). Regardless, it’s ironic that my answers to those questions over the phone will probably have more impact on the election than any vote I cast. After all, polling is based on samples of the population, so each person who answers questions is really doing so on behalf of perhaps thousands of people. In the voting booth, I’ve only got one ballot to cast, even in West Virginia.

So, hey, maybe I made a difference this time around!

October 10, 2012

Judges Behaving Badly

Everybody makes mistakes. Everybody has bad days. But when you’ve got “judge” in your job title, chances are your bad day is going to make headlines. Here are a couple of cases that crossed my virtual desktop where misbehaving judges got caught, in one way or another.

The first, from Kentucky (via the ABA Journal), isn’t really about a judge doing anything wicked, so much as venting his temper in court. But he did so in a way that struck a chord with me.

Judge Martin McDonald* was hearing a prisoner’s habeas corpus action challenging his conviction. He was not a happy camper (all of this was caught on the court’s video system, put online by the local paper, and is embedded in the ABA Joural article). The prisoner was represented by someone from Kentucky’s version of the public defender system who is designated an “appellate counsel.” That’s what it says on my business cards, you see. So I caught McDonald’s barbs full force:
But then the judge erupts again:

‘I would appreciate DPA sending lawyers who actually are trial lawyers, and not some backseat drivers, that’s what I would appreciate. You’ve never been in the heat of the battle in one of these cases, and now you’re criticizing lawyers that actually are real lawyers that do the work, the dirty work, the down in the trenches work. That’s what I find distasteful and disgusting about this whole business.’
Note that folks like me aren’t “real lawyers” because we don’t do trial work. I’ve dealt with that slur long enough that I’ve grown used to it, ever since one of my divorce clients back in my Legal Aid days told me she was going to go get herself a “real” lawyer (i.e., one she had to pay for). Still, it’s beyond the pale for a sitting judge to ding a lawyer appearing before him that way.

Ironically, the judge backed down a bit later in terms of actually letting the prisoner’s lawyer do his job:
The judge relented, however, as the assistant commonwealth’s attorney, fearing an issue on appeal, urge[d] the judge to allow her opposing counsel more leeway, and allowed the hearing to continue.
Ah, we appellate lawyers are a crafty bunch!

As for the second, well, I think we can all agree that “crafty” is not the right word to use. As told by the The Legal Intelligencer, Philadelphia Traffic Court Judge Willie Singletary was showing some pictures on his phone to a contractor. They included pictures of his mom, his kids, him with Stevie Wonder and one more thing – his penis.

The Court of Judicial Discipline, which concluded that Singletary brought “the judicial office into disrepute,” explained:
We think that the public — even those members of the public who register the lowest scores on the sensitivity index — do not expect their judges to be conducting photo sessions featuring the judicial penis and then to be sending the photos over the electronic airwaves to another person.
The “judicial penis?” Does it have a robe? A gavel? Scratch that - I don’t even want to know.

There’s actually an interesting legal issue there, as the court had to determine whether Singletary intentionally showed the penis pictures to the contractor, even though the parties agreed that he forgot the pictures were on his phone. As the court explained:
We hold that a judge who intentionally grooms his penis for photography, and then intentionally photographs his penis for the purpose of display to others, had better remember that the photographs are in his phone lest they ‘slip out’ at some inopportune (albeit unplanned) time under circumstances which are likely to offend another person or persons, for, if they do, we will hold such conduct satisfies the ‘mens rea requirement’ so as to support a finding that the conduct is such that brings the judicial office into disrepute.
You know, in this day and age when nothing electronic really disappears, that’s just good sound advice, whatever line of work you’re in. If you’re a judge (of any rank or stature), doubly so.

* Although the articles refer to him as “retired,” it’s unclear how he’s sitting on a current case. That does happen – witness my argument with the retired Justice Sandra Day O’Connor a few years ago.

October 5, 2012

Friday Review: Clockwork Angels

Over the years, Rush hasn’t shied away from the epic. Back in the 1970s they cranked out three album side-long suites. A little later they spread a four-piece collection of songs over four albums released 21 years apart! But for all that, the band had never done a full-on concept album, giving the whole project over to a single idea.* I suppose they were waiting until they had enough experience under their belts to make it work.

And, boy, did the waiting ever pay off.

I was pleasantly surprised when the band came back with Snakes & Arrows in 2007, their best album in decades. Clockwork Angels takes the basic blueprint of those tunes, stretches them out a bit more, and wraps them around the story Neal Peart wanted to tell. It’s their proggiest work in a long time, sublime riffage and epic arrangements carrying a tale of wonder through the world that Peart conjured in his head.

I’ll admit that Clockwork Angels didn’t immediately grab me like Snakes & Arrows did, which is partly down to the lyrical content of a lot of that album. But the new one’s grown on me, hard, over the past few weeks. Is it Rush’s best album, as I’ve read in places? Probably not, but when you consider the scope of the band’s career and just how long they’ve been at it, the ability to crank out something this good at this time is really special. In a year of kick ass new albums, Clockwork Angels will be near the top of the heap.

But, as Ron Popeil might say – wait, that’s not all!

Author Kevin J. Anderson, a long time Rush fan, collaborated with Peart on a novel for Clockwork Angels, taking the basic story from the album and fleshing it out. The result isn’t all that great and is a good data point in the argument for leaving musical stories alone in that form (see also, Ken Russell’s version of Tommy or the film version of The Wall).

As a book, Clockwork Angels is essentially Candide, with an overlay of Rush’s own “Hemispheres” suite, or maybe the Shadow War portion of Babylon 5. Our young, naïve, dumb as a box of rocks protagonist Owen Hardy travels through his world, pulled between the autocratic Watchmaker and the “freedom extremist” known only as the Anarchist. It’s order versus chaos, Apollo versus Dionysous, Vorlons versus Shadows.

Unfortunately, neither Anderson nor Peart are Voltaire. Where Candide was a scathing satire on the world in which Voltaire lived, Clockwork Angels is just a story, set somewhere other than here without any connection to the real world. I’ve got no problem with that – I write other world fantasies, after all – but you lose something in the relocation. The end product is a fairly routine coming of age story, even if it does involve airships and alchemy.

Nor is Owen a Candide. Voltaire’s hero was sheltered and naïve, but I don’t remember him being stupid. Owen really takes his time to figure certain things out, clinging desperately to the propaganda phrases the Watchmaker has fed him all his life. It’s like you can hear the clockwork mechanisms grinding away in his brain. His need to ponder everything he experiences leads to Anderson essentially going through most incidents twice, without really gaining anything in the retelling. Also, to be blunt, Owen’s trevails are much more of an “adventure” in the positive sense, compared to Candide’s experiences of war, death, natural disaster and religious persecution.

The world into which Owen is dumped has some interesting steampunky features, but some of the more tantalizing ones are left hanging. There’s apparently some kind of parallel universe structure at work, but it’s not deeply examined. The Watchmaker runs Owen’s home country, Albion, through the use of alchemy and precision clockwork. Yet the other places Owen goes seem to have the same technology. Why? Does the Watchmaker trade the tech to other nations for resources? Does he play favorites? Albion is basically a superpower – what does the rest of the world think of that? It’s simply not discussed.

Two other things seriously impeded my enjoyment of the book. For one, Anderson decided at some point to pepper the book with phrases from Rush lyrics, not just from this album but from lots of others. I found that really distracting, both because Peart’s words don’t always sit easily next to Anderson’s and because it just seemed like too much of an in joke. The other problem, which played into the lyric dropping, comes from Peart. Of course, I digested the book in audio form, which is read by Peart. Unfortunately, Neal sounds like he’s reading a story to a group of kids and doesn’t really work as a narrator. And he hits those lyrical Easter eggs like a bad comedian hammering a punch line, in most instances.

Ultimately, the difference between the album and book were driven home to me while listening to “BU2B,” short for brought up to believe, which deals with Owen’s “education:”
Believe in what we’re told
Until our final breath
While our loving Watchmaker
Loves us all to death
From Owen’s mouth (or Peart’s), those lines are rote recitation, nearly meaningless, spoken by someone who’s never really thought about them. On the other hand, belted out by Geddy Lee in a song full of rocking syncopation, they come across as biting, somewhat angry, and cynical. That Owen Hardy would have been a much more interesting protagonist than the one Anderson ultimately delivers.

In the end, the book’s primary failing is that it is merely adequate, while the album upon which it’s based kicks all manner of ass. My recommendation – leave the book on the shelf, throw the album in the car, and crank it up during a long drive.

* I’ve seen some references here and there to things like 2112 or Hemispheres being concept albums, but they aren’t. One side got the suite, the other had songs that were completely unrelated.

Clockwork Angels, by Rush
Released 2012

1. Caravan (5:40)
2. BU2B (5:10)
3. Clockwork Angels (7:31)
4. The Anarchist (6:52)
5. Carnies (4:52)
6. Halo Effect (3:14)
7. Seven Cities Of Gold (6:32)
8. The Wreckers (5:01)
9. Headlong Flight (7:20)
10. BU2B2 (1:28)
11. Wish Them Well (5:25)
12. The Garden (6:59)

Geddy Lee (bass, bass pedals, vocals, synthesizers)
Alex Lifeson (guitar, additional keyboards)
Neil Peart (drums, percussion)

The Details
Clockwork Angels
By Kevin J. Anderson (story by Anderson and Neal Peart)
Published 2012

October 4, 2012

When the Good Guys Lie

I’ve been ruminating about this video for a couple of weeks, since it was pimped by Neil Gaiman on Facebook. It’s about a town library that was in danger of closure unless residents voted in favor of a minor tax increase. Tea Party forces mobilized to oppose the tax and looked to carry the day. Then, this:

I mean, the good guys won, right? And, in the end, the pro-library folks came clean and everybody knew what was up before the vote happened. So what’s the problem?

Well, the problem is that, in my gut, the pro-library folks were lying. The entire outlandish possibility of a book burning was a complete work of fiction, and not even one with a connection to reality, either. If the library closed down, it’s most likely that its collection would be sold off to help close the financial hole. My local library sells used books every year as part of the West Virginia Book Festival (coming next weekend!). They don’t burn the excess parts of the collection.

However, as political lies go, it’s fairly harmless, but if making shit up to get people to vote your way is kosher, where does it end? What about organized campaigns to warn of Obama’s double secret atheist Muslim agenda to impose Sharia law in a second term or how Romney is really a Mormon Manchurian Candidate who will force us all to give up caffeine and wear magic underwear if he’s elected? Where do we draw the line?

Perhaps the problem is that I’m a bit irked that it’s the “good guys” who took this route. They had the better argument and should have won the day via force of rhetoric. Or am I just naïve to think that reason wins the day when it comes to politics?

Maybe I am.

Over at the New York Times philosophy blog (yes, there is a such a thing), Michael Lynch examines whether reasoning leads us inexorably to the value judgments we make (and political decisions are nothing if not value judgments), or just the opposite – does reasoning just provide justifications for conclusions we reach for more emotional reasons. Research shows the latter:
Recently, however, some social scientists, most notably the psychologist Jonathan Haidt, have upped the cynical ante. In Haidtt’s view, the philosophers’ dream of reason isn’t just naïve, it is radically unfounded, the product of what he calls ‘the rationalist delusion.’ As he puts it, ‘Anyone who values truth should stop worshiping reason. We all need to take a cold, hard look at the evidence and see reasoning for what it is.’

* * *

According to Haidt, not only are value judgments less often a product of rational deliberation than we’d like to think, that is how we are supposed to function. That it is how we are hardwired by evolution. In the neuroscientist Drew Westen’s words, the political brain is the emotional brain.
Lynch argues hopefully against this conclusion, but I’m not completely convinced. The example he uses as a long-term change in attitude – the acceptance of homosexuals – I think supports Haidt’s hypothesis. I don’t think people generally decided they didn’t have a problem with homosexuals on a rational level. I think it was more down to the increased visibility of actual gay people and the realization that they’re aren’t actually the monsters they had been made out to be. In other words, people became OK with the idea emotionally, not rationally.

At the end of the day, though, I think I side with Lynch:
Giving up on the idea that reason matters is not only premature from a scientific point of view; it throws in the towel on an essential democratic hope. Politics needn’t always be war by other means; democracies can, and should be places where the exchange of reasons is encouraged. This hope is not a delusion; it is an ideal — and in our countdown to November, one still worth striving for.
But maybe that’s just because I want it that way.

October 3, 2012

Our Fucked Up Penal-Industrial Complex

As we ready ourselves for the first of the Obama/Romney debates, Stephen Colbert highlights one sector of the economy that’s not just growing, but thriving:

To a criminal defense attorney, UNICOR is the same kind of double-edged sword as “cooperation,” aka being a snitch. On the one hand, it’s good for clients to get into a UNICOR program, for multiple reasons, including maybe learning a useful skill for when they’re released. On the other hand, it’s just barely not slave labor and conditions are bound to not improve now that the program has the ability to compete with private enterprise.

It also results in some truly fucked up irony on the ground. As Colbert points out, UNICOR originally sold only to other federal agencies including federal defender offices. That’s right – my office probably includes furnishings made for almost now pay by someone our office once represented in court. Isn’t that sick?

It’s not that I’m opposed to the idea of prison labor in general. It makes perfect sense as a limited program, designed both to provide job training to inmates and labor to maintain the facilities in which they’re incarcerated. But there’s a line that gets crossed when people locked in a cage are working for outsiders at a rate of pennies per hour. Keep in mind, we’ve been down this road before as a nation.

Of course, UNICOR’s ever expanding scope is just another symptom of a criminal justice system that is being turned into a Twilight Zone-ish profit center for private enterprise, which should be viewed as a national tragedy. But I’m guessing it never comes up during tonight’s debate, which is the real tragedy.

October 2, 2012

What’s Spanish for “Chuztpah”?

As the story goes, the best definition of “chutzpah” is when a son who murders his father and mother then seeks mercy from a court because he’s an orphan. That is a good one, but this one might not be far behind.

You probably don’t know the name Cecilia Giménez, but you no doubt are familiar with her work. Giménez is the elderly Spanish woman who decided to do something about the deteriorating fresco of Jesus at her church and turned it from this . . .

. . . into this:

Images via Wikipedia.

Giménez and her handiwork have been roundly mocked,* but the increased attention has made the small Spanish church a tourist destination. And Giménez wants in on the action:
According to El Correo, Gimenez has apparently lawyered up, and is now asking for royalties from her church’s newfound money stream.
She also complains that the notoriety of her work has led to her becoming a virtual shut in due to media attention and tourists flocking to the church. It’s not clear to me how getting a piece of the church’s revenue from the painting would solve that problem (if anything, it seems likely to make it worse), but I’ll admit I’m unfamiliar with the Spanish legal system.

I have been curious, since the story broke, as to just what the legal landscape of this situation was. As I understand it, Giménez took this project up on her own volition and without authorization from the church leaders. If so, it sounds like vandalism, doesn’t it? If somebody came into my house and started “renovating” the stuff on my walls, I’d be kind of pissed. If that’s the case, getting royalties would seem to be a stretch. On the other hand, if Giménez had some vague permission to do what she did and it’s become a cash cow, I think she’s got a legitimate claim for some compensation.

Even if she never sees a Euro, Giménez nonetheless wound up with a level of fame (or infamy) that most artists only dream of. That’s got to count for something.

* I kind of like it. Who needs another “realistic” vision of a pasty white Jesus, anyway?