January 30, 2012

A Good Idea Lost in the Weeds?

This may come as a surprise to you, dear reader(s), but I have not exactly spent my free time over the past several months pouring over the position papers and the like of the GOP presidential candidates. West Virginia’s primary is closed, and I’m not a registered GOPer, so aside from the entertainment value of watching them cannibalize each other, I’ve got no reason to spent a lot of analytical sweat on any of them.

So imagine my surprise when one of those GOP aspirants who has fallen by the wayside, Rick Perry, appears to have picked up on an interesting idea. Yes, I’m talking about this Rick Perry:
At Rancho Perry, every day was Oopsday. Along the trail, he forgot how many Justices the Supreme Court has (eight is not enough); forgot the name of one of them (Sonia Sotomayor); placed the American Revolution in the sixteenth century; identified the voting age (fixed at eighteen four decades ago by constitutional amendment) as twenty-one; and suggested that the chairman of the Federal Reserve is a traitor, that Turkey (a NATO ally of sixty years’ standing) is governed by Islamic terrorists, and that Social Security is not only a Ponzi scheme but also a criminal enterprise, a monstrous lie, and unconstitutional. And there’s this whopper, from his farewell speech: ‘As a former Air Force pilot, I don’t get confused.’
The idea is to amend the Constitution to remove the life term for Supreme Court justices and switch to one-time terms of 18 years, with a new justice being appointed every two years. It’s not Perry’s idea – law professors have been kicking it around for years – but he’s the first politician I’ve heard to pick up on it. The theory behind it is two-fold.

First, by making Supreme Court appointments more regular and more frequent, the rancor and partisan warfare that springs up around them would lessen. At first blush, that makes some sense. The chance to appoint a Supreme Court justice would no longer depend on an odd synergy of fate and political expediency. Every president would get his or her chance to appoint justices, at least two, during their time in office. Regularity would lead to a smoother process.

Given the current political climate, I’m not sure how far that idea would get in reality. Judicial vacancies in the lower courts happen much more often than Supreme Court vacancies and, given their subordinate role, ought to lead to less political rancor. The opposite is true, of course. Individual judicial candidates for the courts of appeals or district courts rarely get the kind of spotlight that potential justices do, but they still get held up by simple partisan bickering. Furthermore, the way in which regularly occurring political events (like, say, agreeing on a damned budget) get turned into partisan battles of will suggests that the regularity of some event is no guarantee that it will go more smoothly.

Second, the constant churning of membership on the Supreme Court would lead to less ideological dogmatism. Fresh blood and new ideas, combined with the inability of partisan politicos to lock in a justice for a term lasting decades, would benefit the Court and the litigants who appear before it. It would also allow for a broader range of prior experience in the justices appointed. I’m all for that. Why, if we had to roll through qualified candidates every two years, we might even get a defense lawyer on the Supreme Court! Alas, that’s just a pipe dream.

As is, ultimately, Perry’s proposal. Not just because his own candidacy flamed out so spectacularly. Amending the Constitution is seriously difficult, for good reason. The idea that enough people could get fired up for this kind of structural change (as opposed to something issue specific) is laughable. I suppose once the overwhelming majority of the citizenry is so apathetic about the whole process a mobilized cadre of legal geeks might get it done, but that’s the stuff of fiction, as far as I can tell.

Still, props to Perry for putting the idea out there. I’m not certain of whether it has any ultimate merit, but it’s a least a serious and thought-provoking proposal. In a campaign filled with “9 9 9” and grand plans for new states on the moon, that’s something to be proud of.

January 20, 2012

Friday Review: Tabloid

Errol Morris is one of the most decorated documentary filmmakers of our age. In Standard Operating Procedure he probed the horrors of Abu Ghraib and the urge of the perpetrators to document their crimes. In The Fog of War he laid bare the soul of Robert McNamara, the architect of the Vietnam War. And in The Thin Blue Line, he dug deep into a Texas murder case (creating the documentary technique of reenactment in the process) and got an innocent man off of death row. The man makes deep, thoughtful films about deadly serious topics.

Tabloid is not one of those. Don’t get me wrong, it is thoughtful and feints at some broader themes and deep issues. But, really, it’s not destined to go down alongside those films as milestone work in Morris’s career. It is, however, a ripping good story based around one of those real life characters that Morris is so adept at finding (and getting talking).

The real character at the center of Tabloid is Joyce McKinney, who first came to Morris’s attention because of a news story about an ungodly amount of money she spent having her beloved dog Booger (no shit!) cloned in South Korea. The story contained a brief reference to her infamous past, which set Morris on the case. What infamous past?

In 1977, an American named Kirk Anderson was doing his Mormon missionary work in the UK. One day, he was “abducted” from in front of the local Mormon temple. He showed up in London a few days later, explaining that McKinney (with whom Anderson had been involved back in the US) kidnapped him, hauled him off to a cottage in Devon, chained him to a bed, and raped him repeatedly over the course of several days.

McKinney tells a completely different story, as you might imagine. It begins in the US, where after she and Anderson fell madly in love (to the disdain of Anderson’s faithful Mormon mother), he abruptly disappeared. McKinney assembled an odd team, including a private detective, a pilot, and a bodyguard from Gold’s Gym and, having tracked Anderson to the UK, set off to get him back. The pilot and bodyguard didn’t last too long in the operation. McKinney tracked down Anderson, whom she described as having been brainwashed into a cult. He willingly went with her to Devon and was a willing, if not altogether enthusiastic (due to his Mormon indoctrination about sex), participant in all that happened there. He “escaped” when they went to London to get married.

The case, dubbed “The Case of the Manacled Mormon,” blew up in the British media, and particularly in a pair of dueling tabloid newspapers. The Daily Mail threw in on McKinney’s side, paying her for her side of the story. The Daily Mirror, on the other hand, frozen out without access to McKinney, dove into her past in America and dug up all kinds of juicy dirt involving pornography and prostitution. McKinney and her accomplice eventually made bail and fled back the US (according to one article she was apparently convicted and sentenced in absentia, but extradition was never sought).

Tabloid is basically a one-sided narrative. The only direct participant in the affair who talks is McKinney – Anderson refused to be interviewed. Everyone else’s involvement either ended before the disputed events or they are relaying hearsay information. Given that, it’s fascinating that at the end of the film you’re left with more questions than answers about what actually happened. For what it’s worth, I favor a third hypothesis (between McKinney’s romantic tale and the purely criminal escapade) put forward by a former Mormon brought in for some context: that Anderson went with McKinney willingly, but somewhere along the way his conditioning kicked in, he regretted whatever happened, and claimed kidnapping as a way to cover it up. It is entirely possible that McKinney is seductive enough to reel him in, and crazy enough to scare him off (she was later arrested in the US for stalking Anderson – and has sued Morris!).

In the end, Scott Tobias over at the Onion AV Club sums things up well:
McKinney may well be a madwoman, but Morris connects so deeply to her obsessions that the film’s tone never seems exploitative or mocking. Mostly, it’s just endlessly curious in the familiar Morris way: curious about another in his career-long gallery of eccentrics, curious about British tabloid culture, and curious about how radically stories are distorted, both by outlets looking for an angle and by individuals who reserve their greatest deceits for themselves. Tabloid is tonally removed from something like The Fog Of War, but in the end, McKinney and Fog subject Robert McNamara are each trying to control narratives that are out of their hands and have a complicated relationship to the truth.
And that’s always fun to watch, if nothing else.

And now, because I can’t hear about British tabloids without thinking of this song . . . “Paper Lies”:

The Details

Released 2010
Directed by Errol Morris

January 18, 2012

Regulating the Pipeline to God

You’d think that, as an atheist, I wouldn’t be concerned about how the state dealt with the internal affairs of churches. Don’t have a church, so why should I give a rat’s ass? But that’s asking the wrong question. It’s like not worrying about the shredding of the Fourth Amendment because you’re not actually doing anything wrong and thus have nothing to hide. There are certain things we don’t want the state doing. Weighing the validity of religious doctrine is one of those things.

That’s the underlying concern evidence in a unanimous Supreme Court decision last week involving a private religious school, an ill teacher, and the EEOC. The church school was part of the Lutheran Church-Missouri Synod. The teacher, Cheryl Perich, was a “called” teacher (as opposed to a lay teacher), meaning she had been through religious training and was considered by the school to be part of its religious mission. She developed narcolepsy, which led to a dispute over whether she could continue to teach. When she threatened to take legal action, the school fired her.

Perich sued the church anyway (via the EEOC), for firing her based on her threat of legal action. The church sought to dismiss the suit by invoking the “ministerial exception,” a long recognized doctrine in the lower courts that said (in essence), courts won’t wade into a church’s internal business, particularly when it involves church doctrine. In this case, the church argued that by taking her dispute outside the church, Perich had violated its doctrine. And since she was a called teacher and, basically, a minister, the courts couldn’t step in and review the decision to fire her.

The Supreme Court, ultimately, recognized the ministerial exception as an outgrowth of the religion clauses of the First Amendment. Chief Justice Roberts, writing for the Court, surveyed the history of government interference in religious matters in England and the Colonies (my favorite, a missive from Henry II to electors of a bishopric in Winchester commanding them “to hold a free election, but forbid you to elect anyone by Richard my clerk” - It’s good to be the king!). Preventing that kind of interference was part of the reason for enacting the First Amendment’s religion clauses. Therefore, to the point that a court would be required to deal with issues of ministerial competence or what have you, courts have to stay out.

What the Court did not do (although the odd couple concurrence of Justices Alito and Kagan tried) was to provide some real guidance as to when this ministerial exception could be applied. A couple of inconvenient facts (one for each side) show how difficult it could possibly be to figure that out. On the side of the church, the inconvenient fact is that while Perich was a called teacher, her job description was identical to that of the lay teachers, who were not called, or even required to be Lutheran. Given that, why should Perich’s status of being “called” really make a difference? As for Perich, her unfortunate fact is that before this dispute arose she had claimed ministerial status in order to get tax benefits. While that doesn’t answer the question of her status, it at least makes it unclear enough to that caution dictates the courts shouldn’t wade into it.

It will be interesting to see how the lower courts grapple with the scope of the exception. Of course, they’ve been doing it for some time, so it might not be as vague as some are making it out to be. It’s also worth noting that, contrary to what I’ve read in some heated ‘Net comment sections, the decision does not allow churches to discriminate at will against any employee. Only those arguably involved in the church’s core function would be covered. Of course, how broad is any given church’s function? That’s the rub.

Ultimately, the religion clauses of the First Amendment reflect the same fear that the Free Speech clause does when it comes to state regulation. It’s not that bad things are done under the auspices of speech or religion that most people would want regulated. It’s that we don’t trust the state to sort correctly between the good stuff and the bad. Rather than risk the state getting it wrong, we let the market handle it, to the extent it can. Whether that’s born of some ideological position or simply a recognition of how the real world works, you get the same place in the end.

It’s often noted, amongst my unbelieving brethren, that religion isn’t an immutable trait like race, gender, or sexual orientation. Given that religious practice involves choice and free will, why should it enjoy protected status? Whatever arguments for or against that idea, in the United States the decision was made long ago. The First Amendment does put religion in a special place in our society when it comes to how the law deals with it. Maybe it shouldn’t, but it would take more than a Supreme Court case to change it.

January 17, 2012

Lyin’ Eyes (Redux)

Last year, I wrote about a case accepted by the Supreme Court that dealt with eyewitness identification. Specifically, it was going to address the issue of whether some kind of police misconduct is required before a court must exclude an out-of-court identification as unduly suggestive (the ID at issue in the case, all agreed, was not the byproduct of any police shenanigans). Defense attorneys across the country hoped that the Court might use the opportunity to seriously reevaluate the whole nature of eyewitness testimony, in light of all we’ve learned in recent years about how unreliable it is. Unfortunately, the Court, by a large majority, played things close to the vest.

The case, Perry v. New Hampshire, involved police responding to a report of car robberies in an apartment complex parking lot. When police arrived, Perry was found in the parking lot with a pair of car stereo amplifiers in his hand. He matched the vague description given of the person breaking into cars. As part of the investigation, an officer went to the fourth-floor apartment from which the initial call had been made and spoke to the caller’s wife, Blandon. She provided the same vague description. When prompted for further detail, she pointed out the window at Perry (who was standing with another officer in the parking lot) and identified him as the perpetrator. Perry was arrested. A month later, Blandon could not pick Perry out of a photo lineup. Perry was charged with theft and criminal mischief.

Perry tried to suppress that on the scene identification, not because the cops did anything wrong, but because the circumstances of the identification were inherently suggestive. The New Hampshire courts wouldn’t go along with that argument and, ultimately, neither did the Supreme Court, which affirmed Perry’s conviction 8-1.

Justice Ginsburg, writing for the Court, rejected Perry’s attempt to decouple the due process issue from the behavior of the police and focus solely on the reliability of the identification at issue. A major purpose of the suppression of an identification is to deter the police from engaging in improper conduct. Where there was no improper conduct, that purpose cannot be in play. Perry’s position would:
open the door to judicial preview, under the banner of due process, of most, if not all, eyewitness identifications.
The court recognized Perry’s argument (supported by numerous amici) that eyewitness testimony is inherently unreliable, but concludes that the “potential unreliability” of evidence does not preclude its introduction and that confrontation, cross examination, and the like are adequate to deal with the problem.

The only dissenter was Justice Sotomayor, who seems to take more to heart all we’ve learned about eyewitness testimony over the years. She wrote that:
eyewitness identifications’ unique confluence of features — their unreliability, susceptibility to suggestion, powerful impact on the jury, and resistance to the ordinary tests of the adversarial process — can undermine the fairness of a trial.
Among the statistics she used to back up that claim is the staggering figure that 76% of the first 250 exonerations due to DNA evidence involved incorrect identifications by eyewitnesses (and, in some cases, victims). That’s not much better than our terrorist detecting skills I talked about last week.

I understand the reticence of the Court to step beyond regulation of police conduct when it comes to suppression of evidence. Unfortunately, eyewitness testimony still holds a much greater weight with average jurors, and the public at large, than science indicates it deserves. The traditional crucible of cross examination may not be enough, in the large body of cases, to deal with that. Ultimately, the responsibility may lie with the defense bar itself to educate the public at large.

January 13, 2012

Friday Review: The Sole Inhabitant

The further along I get when it comes to electronic music, the more I find myself getting into things I once that held no interest for me. As a child of the 1980s, I thought I had just about had enough of Thomas Dolby long before old enough to drive. Strange, then, that I’ve wound back to him and his music and find myself digging it quite a bit more than I would have imagined.

A few years ago, I read an article in Keyboard about Dolby. He was out on tour as a one-man band. Such things are treacherous, but it seemed if anyone could pull it off, it might be someone well schooled in electronic music. So I put The Sole Inhabitant, the CD/DVD commemoration of the tour, on the list of things to check out eventually.

I’m glad I did. Armed with a few synths, an awful lot of MIDI gear (including a 1940’s “impedance bridge” with the guts replaced with MIDI switchery), and a Macbook, Dolby fills out his songs in impressive fashion for just one guy. While there is a certain amount of “canned” stuff going on, based on my observations of the DVD he really is triggering most of the loops and samples in real time. Given the conceit of the tour, that’s to be expected.

Regardless, the whole thing is most impressive when Dolby takes a song and builds it from the ground up, as in “The Flat Earth”:

When it comes to electronic music, I still tend to favor the slow and moody to the more upbeat pop/dance stuff, so I generally dig the first two-thirds of the set more than the rest. That being said, there’s good fun to be had while banging out “Hyperactive” and “She Blinded Me Wit Science.” Besides, I’ve become quite fond of “Europa and the Pirate Twins,” for some reason.

As I said, this is a CD/DVD package, and although the track list for each is the same, they were recorded in different locations. The DVD, in addition to the music, throws in about a half hour total of fun and interesting intros, another half-hour interview with Dolby (who says some particularly interesting thing about Europe v. the United States and notions of history), and a brief tour of his rig. All in all, it’s one of the best concert DVDs that I’ve seen in a long time.

The Sole Inhabitant, by Thomas Dolby
Released 2006

1. Leipzig Is Calling (5:14)
2. One Of Our Submarines (5:39)
3. I Live In A Suitcase (6:24)
4. Flying North (6:02)
5. The Flat Earth (6:46)
6. Budapest By Blimp (7:57)
7. Windpower (4:25)
8. Europa And The Pirate Twins (4:21)
9. Hyperactive (5:22)
10. She Blinded Me With Science (4:53)
11. Airhead (4:51)

Thomas Dolby (everything)

January 12, 2012

In Which I Agree With *gulp* Gary Bauer (Sorta)

There are few people on the planet that I would say I disagree with more fundamentally – about religion, politics, or ethics – than Gary Bauer. Long a crusader on the religious right (and even a presidential candidate, for a while), Bauer pushes an agenda and holds beliefs that I find odious and disturbing.

‘course, as they say, even a blind squirrel finds a nut sometimes. Credit where it’s due, Bauer’s found one.

Article 6 of the Constitution states that (emphasis mine):
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
Thus, nobody can legally prevent a Muslim, Mormon, or atheist from running for or serving in any political office. The First Amendment bolsters that provision and, through the Fourteenth Amendment, effectively applies it to the states. But it only applies to legal restrictions. What about personal ones. When I go into the polling booth, can I apply a religious test when deciding who to vote for.

Bauer says yes, in a recent USA Today column. And I agree with him, for a couple of reasons.

First, as a practical matter, it’s impossible to police what people think is important to them about a political candidate. As unethical as it would be to not vote for Barrack Obama because he’s black or Hillary Clinton or Michelle Bachman because they’re women, it’s impossible to keep people from making their voting decisions on those grounds. Thus, it seems more than a little pointless to harangue people for something over which you not only have no means to control, but no hope of ever controlling.

Second, Bauer is right that someone’s religious beliefs can say something about them and their fitness for office, although they may not. The important thing is to keep the focus personal, rather than general. The label that one gives to themselves when it comes to religion doesn’t necessarily tell you a whole lot about their view of the proper role of government or how best to solve problems facing the world today. One need only to look at the various flavors of Catholics who pop up in politics to see that being true. Current GOP non-Romney flavor of the week Rick Santorum seems to draw a lot of policy provisions from his Catholic faith, while others like John Kerry come from the same faith and reach radically different positions. In the end, it’s the positions that matter, after all.

That is where, for all his nice talk, Bauer goes wrong, for he does precisely what he argues we shouldn’t and paints with a broad brush:
Though I wouldn't vote for a pagan, I'd vote for a Catholic or a Jew whose policies reflect the traditional understanding of marriage and defend the sanctity of human life much more readily than I would vote for the man next to me in the pew who doesn't support those things.
This after, without any hint of irony, deriding Wicca as “involve[ing] magic, spell-casting and sorcery” (as if a religion involving talking snakes, virgin births, and people who come back from the dead doesn’t). In other words, there are some faiths that are so beyond the pale for Bauer that he wouldn’t vote for a person who espoused those beliefs. That’s silly. I wouldn’t vote for an atheist just because he was an atheist, why should I vote against a Christian, pagan, or whatever simply because they fit into that category?

I wouldn’t, for example, vote against Mitt Romney because he’s a Mormon (although he wouldn’t extend me the same courtesy). I’d vote against him because he’s a feckless flip-flopping douchebag who couldn’t find a principle if it was strapped to the roof of his station wagon shitting down the windows. Two completely different things.

January 11, 2012

Spot the Terrorist!

The dystopian world of Terry Gilliam’s Brazil is beset by random blasts of violence, explosions laid at the feet of unnamed terrorists. It’s the terrorist threat that drives the world’s administration, one that includes a department of torture with the deliciously euphemistic label “Information Retrieval.” But the film never really shows you any actual terrorists. It’s even brought up in a discussion between the main character, Sam, and the woman of his dreams (literally):
JILL: Who is this war against, Sam?

SAM: Well, terrorists of course.

JILL: How many terrorists have you met? Actual terrorists?

SAM: Actual terrorists? Well...it's only my first day.
That line’s played for laughs, of course, but there’s an uncomfortable truth lurking there about how much of any “war on terror” is really a PR campaign by the state.

That idea flashed through my head when I read the sickening numbers compiled by the ACLU about the inmates confined at Guantanamo Bay (via). It looks like lots of people down there have never met an actual terrorist, either. Of the 779 people detained at Gitmo since 2002, a whopping 92% of them were never al Qaeda fighters. Maybe that’s because only 5% of them were actually captured by US troops in the field. The bulk of them (86%) were turned in for a bounty.

The other numbers are equally depressing (the number of men detained who the Government admits it can’t any allegations against but continue to detain anyway? 46). But that 92% says more about the “war on terror” than just about anything else could.

January 10, 2012

Another Round for Fleeing Fucks

There is little doubt that no off the cuff utterance has lived as long in the American legal system as Bono’s remark, in 2002, during the Billboard Music Awards on Fox, about winning a particular award:
[t]his is really, really fucking brilliant.
That statement, along with similar deployment of “fleeting expletives” by Cher and Paris Hilton around the same time, launched a legal battle that’s about to be taken up by the Supreme Court for the second time in three years. When the Court hears oral arguments today in FCC v. Fox Television Stations, the court may dive headlong into an issue they were able to avoid in 2009.

At one time, such isolated utterances of one of Carlin’s seven dirty words weren’t enough to drive the fellas at the freakin’ FCC up the wall. That all changed, as they went after Fox and a couple other networks for the fleeting fucks. In its 2009 decision, a sharply divided Court held that the change in policy was not “arbitrary and capricious” and thus didn’t violate any administrative law provisions. The Court punted on the issue of whether the FCC’s policy actually violated the First Amendment.

On remand, the Second Circuit found that the policy violated the First Amendment because it was too vague. It’s hard to argue otherwise if read the disparate treatment of the same language in similar televised presentations. Saving Private Ryan with all its bad words (and, of course, violence, which bothers nobody) was just fine, but Martin Scorcese’s epic PBS documentary The Blues, in which real people spouted a few real expletives, was not. It’s impossible to make rhyme or reason of the FCC’s rulings in this area.

But that’s not all that is at stake tomorrow. Fox , and some of their amici, argue that the Court should strike down the foundation of any FCC regulation of naughty words on TV, the Pacifica case from 1978. That was the case in which the court held that the FCC could ban Carlin’s routine (which had been broadcast on radio), because of the pervasive nature of the broadcast medium. As the Fox brief makes clear, broadcast TV, while it was once pervasive, today is only a sliver of the media available to 21st-century eyes and ears. Given that reality, Fox argues that the FCC should have the same authority to regulate broadcast TV as to, say, the Internet or cable/satellite TV – which is to say none at all.

It will be interesting to see whether the Court goes that far, or simply smacks down the FCC’s policy on vagueness grounds. I’d like to see them go whole hog, but we’ll see.

For a much more in depth preview of the case, see Lyle Denniston’s write up over at SCOTUSBlog.

January 9, 2012

A Few BCS Thoughts

Tonight, Alabama and LSU will lock heads in the BSC Championship Game. Not only do they both come from the same conference (the same division, in fact), but they’ve already played this year, LSU downing Alabama in overtime in what was either a brilliant defensive game or a crushing bore, depending on which side of the 9-6 final your team was on.

Like many college football fans, I’m not really a fan of the rematch in the title game. I’ve always been of the opinion that if you don’t win your conference, you don’t play for the national title. But, again like most college football fans, I’ll tune in tonight and watch. The game’s like a drug and I’m a junkie, I’ll admit. Besides, the buzz of WVU’s crushing Orange Bowl win last week is about to wear off. Stewart Mandel has more on the conflicted feelings of fans here.

I will say this for the BCS – it is blatant about trying to do what no other championship game in the world really can, match the two best teams against each other at the end of the year. Think about it. Any playoff system only works in getting close to that matchup if all the favorites win and all the underdogs lose. But what we love about playoffs is that they are unpredictable. One year, a NFL wild-card team can win the Super Bowl. The next, all the wild-card teams get eliminated in the first round of the playoffs. In a BCS setup, Greece never wins the 2004 European Championship because they never even play in the final. At the end of the day, it’s what makes playoffs worth playing.

So the BCS is bucking the trend, which is admirable. But the errand they set for themselves is a fool’s one. How on earth can you pin down the “top” (whatever that means) two teams out of the 120 that play through the season? If two, and only two, teams wind up unbeaten during the regular season, that might be helpful, but doesn’t deal with the strength of schedule problem. And what about seasons like this one, where only LSU made it through unscathed? You play the same game with the 1-loss teams (see here for a good argument about Alabama and Oklahoma State filling that role). And what if the unthinkable happens – Alabama upends LSU, but only barely, and nobody ends up undefeated? It might be fun just to see what happens.

For the record, my biggest beef with the BCS is there is no way for any team to say “if we do X, Y, and Z, we will play for the national championship.” The best bet is to be undefeated, but even that doesn’t guarantee anything. At least in the NCAA basketball tournament each team as a path to automatic qualification. Something more objective would be a good thing (my setup: a playoff involving only conference champions and the highest ranked independent).

In the end, the current system, while obtuse and completely fucked up, is the one that college football fans largely deserve. It gives us the one big game to decide it all, the focal point of all American sports (even the World Series or Stanley Cup Finals we want come down to a do or die game seven, right?). But it does it in such a way that everybody is free to argue about it until they’re blue in the face, often without any real mooring to the undisputed facts.

Damn it, it’s an American tradition! Sort of like presidential elections. I’ll be watching those until the end, well past my bedtime, too.

January 6, 2012

Friday Review: The Confession

Regular readers know that I am against the death penalty. Not because of the inherent injustice in its application or because any human system is flawed and bound to make mistakes, but because I think it’s simply a power that the state should not have. That being said, one would think that would make me a receptive audience to a legal thriller based on the idea of the state of Texas executing an innocent man. I’ll admit that the heart is in the right place, but that still doesn’t make for a compelling piece of fiction.

Two deaths are at the heart of The Confession, John Grisham’s fictional treatment of an area he hit earlier in a non-fiction book, An Innocent Man. The first is the murder of a high school cheerleader named Nicole. The second is the execution, nine years later, of Donte Drumm, who, although convicted by a jury, is absolutely innocent of the crime. As a race-against-the-clock thriller, it has a lot of possibilities. Problem is that the clock runs out about two-thirds of the way through the book, leaving precious little of interest happening thereafter.

By that time, there is absolutely no doubt that Drumm was innocent. Grisham takes several of the more notorious bits of lunacy in death penalty practice over the years (many from Texas) and piles them up in one case. There’s the titular false confession, which is the result of hours upon hours of lies and pressure by cops. Then there’s the fact that the prosecutor and the judge presiding over the trial were sleeping together. Then, with the clock ticking down in the background, the last court that can do something to stop the execution shuts its doors promptly at closing time, even though Drumm’s lawyers have alerted them that they are on the way over with a last-minute filing. All of those things are ripped from the headlines, sadly. Putting them all together in one case, however, is just too much. Grisham doesn’t have a finger on the scales of justice, it’s more like a palm.

Political figures don’t fare much better than the legal ones. All during the book, we drop in on the governor of Texas and his two closest friends and advisors, his “communications director” (aka spin doctor) and chief counsel. The governor himself is a poll-driven political whore, but you’d expect that. What you might assume is the only reason Grisham gives him two advisors always in tow is that one of them might say something profound about what happens or offer some dissenting opinion. Alas, it’s all about politics with all of them. Nobody at all seems concerned that the state has killed an innocent man.

Here’s the thing. If you want to write a convincing fictional takedown of the death penalty, the structure Grisham uses here would work. Most wrongful convictions are a little more complex than this one, however, and you could use the period after the execution to unravel how it all went wrong. Grisham so tilts the playing field, however, that there’s nothing to unravel once the execution goes down. As a race against the clock it fails because, well, they kill the wrong guy. But as a thoughtful exposition of how such a thing could happen, it also fails.

Which is a real shame. Grisham is a big name author who could presumably reach some people who are not entrenched partisans when it comes to the death penalty. Maybe he will someday. He certainly won’t with The Confession.

The Details
The Confession, by John Grisham
First published in 2010

January 4, 2012

Now There's A Defense!

I can’t imagine anything, aside from powerful psychotropic drugs, that would make Alvin and the Chipmunks: Chipwrecked anything other than 87 minutes of pure hell. Then again, my imagination doesn’t think of things like going to the theater and getting buck naked, either:
A Chicago man was arrested last week after being spotted sitting fully nude in the front row of a suburban matinee screening of Alvin And The Chipmunks: Chipwrecked.
96 other patrons were escorted out, probably by a SWAT team in full regalia, and the dude was arrested. But wait, he’s got a defense:
[The accused] reportedly told police he was duped into nudity not by those wanton temptresses of the Chipettes but by a woman who let him into the theater, told him to strip, and promised that she’d be there shortly to ‘have sex and do drugs.’
You know the old saw about how if something sounds too good to be true? Same applies to offers from women to meet up at a kiddie movie and get freaky. Or so I’ve been told.

But it’s all OK now. He’s in jail ($100,000 bond? Are you kidding me?) and will not doubt wind up as a registered sex offender. Which we all know is the key to being successfully rehabilitated and reintegrated into society.

January 3, 2012

Maybe I’ll Just Sit This One Out

It’s only the third day of the year, but already I know one thing about the upcoming year. I will not vote for Barack Obama in November.

I voted for him in 2008, willingly if not enthusiastically. Since then, it’s not the domestic policies that have led me to this point (although many of those aren’t great). It’s been the complete embrace of Bush-era terrorism policies that shifted more and more power to the executive and made review of the exercise of those power almost impossible. It was a bad deal when Bush did it. It’s not any better when Obama does it, just because he’s got a “D” next to his name.

This, finally, was the last straw for me (via):
President Obama signed the National Defense Authorization Act (NDAA) today, allowing indefinite detention to be codified into law. As you know, the White House had threatened to veto an earlier version of the NDAA but reversed course shortly before Congress voted on the final bill. While President Obama issued a signing statement saying he had ‘serious reservations’ about the provisions, the statement only applies to how his administration would use it and would not affect how the law is interpreted by subsequent administrations.
More details on the NDAA here. Although the powers it sets out have mostly already been exercised by this administration and the previous one, codifying them in the U.S. Code will make it all the more difficult to reign them in at some future point. And while Obama promises not to make full use of them (although there’s no reason to believe that, given his record in the area to this point), that doesn’t bind future presidents.  Ed at Dispatches has more on that angle here.

I’m aware of the counterarguments. That anybody the GOP will field in November will be worse, overall. There’s the rallying cry of “what about the Supreme Court?” I don’t disagree, but I can’t go along with that anymore. There’s only so far I can go when it comes to choosing the lesser of two evils. If my vote means anything (logic and sheer numbers says it doesn’t), it has to be cast with some integrity.

So where does that leave me? Probably sitting on the sideline, unless something interesting happens with a third-party candidate (sorry GOP friends – I’m not that far gone). Sometimes the only winning move is not to play.