Bloggus Interuptus (Novelus Writus)

Last year, I bailed on National Novel Writing Month, aka NaNoWriMo. But I had a good excuse – K and I took a trip to St. John in the Virgin Islands to celebrate our fifth anniversary (pix here, if you’re curious). It would have been unseemly to take on the task of writing every day while we were away, and impossible to make up for lost time when we got back. But I’m back in the game this year!

This will mark the fourth time I’ve done NaNoWriMo. In 2007 I crashed and burned about 60% of the way to the 50,000-word target for the month, although I expect to revive that novel in a different format someday. I “won” in 2008 and 2009, although neither novel was finished during the month. 2008’s effort is now moldering in a box in my closet, after a second draft convinced me it was shit. 2009’s effort, which is considerably more epic, is set for a second draft in early 2012. I kind of like it, so I expect I’ll push through the polishing it needs. This year I’m taking on immortality and what I might do to people who are and aren’t really cut out for it. We’ll see how it goes.

All of this is a longish way of saying that I’ll be otherwise occupied this month, so there won’t be any updates at Feeding the Silence. See y’all in December!

UPDATE: Track my progress . . .

The Play’s the Thing, But History Still Matters

Hello. I'm Leonard Nimoy. The following tale of alien encounters is true. And by true, I mean false. It's all lies. But they're entertaining lies. And in the end, isn't that the real truth? The answer is: No.

- The Simpsons, “The Springfield Files”

This past weekend, K and I were out at the West Virginia Book Festival, where we ran into my sister-in-law and my niece plowing through the used book sale. My niece, who’s in high school, already had two armfuls of books. Among them were a boatload of Shakespeare. She got them not to fulfill some requirement for English class, but because Shakespeare references were popping up lots of places and she wanted to know more about them (in contrast to her lunkhead classmates, as I understand it).

Yes, I was one proud uncle.

Perhaps inevitably, discussion slid towards Anonymous, the latest Roland Emmerich opus to hit the silver screen (opening tomorrow). It’s about how Shakespeare really didn’t write the stuff that’s attributed to him, giving the honor instead to Edward de Vere, 17th Earl of Oxford (who, in the movie, is also the son and lover of Queen Elizabeth I). It sounds like riveting, entertaining, popcorn scarfing fun. It’s also complete fiction.

Which, you know, is fine when it comes to drama. The parallel that immediately came to my mind when I heard about Anonymous was Amadeus, which tells the fictional tale of how Mozart was offed by a jealous rival.* It’s fantastic drama, but it ain’t history. Which is fine, as long as that’s all it presents itself as.

If only Anonymous was doing that. Instead, Emmerich and Sony “have produced a documentary and classroom study guide”  to go along with the film. Which is why Shakespeare scholars and boosters are pissed.

One scholar laid out the case against Anonymous in the New York Times last week. The de Vere theory has some history behind it, at least:

The case for Edward de Vere, 17th Earl of Oxford, dates from 1920, when J. Thomas Looney, an English writer who loathed democracy and modernity, argued that only a worldly nobleman could have created such works of genius; Shakespeare, a glover’s son and money-lender, could never have done so. Looney also showed that episodes in de Vere’s life closely matched events in the plays.

Historian Simon Schama did a similarly caustic putdown here (http://www.thedailybeast.com/newsweek/2011/10/16/film-anonymous-doubts-shakespeare.html).

But what’s so wrong with a theory that’s famous believers include Freud, Antonin Scalia, and John Paul Stevens?

[P]romoters of de Vere’s cause have a lot of evidence to explain away, including testimony of contemporary writers, court records and much else that confirms that Shakespeare wrote the works attributed to him. Meanwhile, not a shred of documentary evidence has ever been found that connects de Vere to any of the plays or poems. As for the argument that the plays rehearse the story of de Vere’s life: since the 1850s, when Shakespeare’s authorship was first questioned, the lives of 70 or so other candidates have also confidently been identified in them. Perhaps the greatest obstacle facing de Vere’s supporters is that he died in 1604, before 10 or so of Shakespeare’s plays were written.

Supporters of the Looney theory get around the lack of evidence in a way well known to modern political observers – a conspiracy theory! Thus, the absence of evidence is, in fact, evidence itself. The usual caveats about such things apply, of course, from the traditional problem of how all those conspirators kept the secret for so long to the equally prevalent issue of why would anyone care to put up and maintain such a façade?

Shakespeare supporters are striking back, too. The Shakespeare Birthplace Trust is:

is protesting the release of “Anonymous,” . . . by covering Shakespeare’s name on several signs in Warwickshire, the British county that was the playwright’s home.

BBC News reported that the trust had taped over Shakespeare’s name on nine local road signs to coincide with the London Film Festival premiere of “Anonymous.” It said the group would also cover up signs on 10 pubs and drape a sheet over a Shakespeare memorial in the playwright’s hometown of Stratford-upon-Avon.

I guess the idea is to protest the writing of Shakespeare out of history by . . . writing him out of history, albeit temporarily. It’s not the most clever protest, but it will do.

Although I wonder if the Shakespearians doth protest too much. After all, the Bard himself is well known for his “histories,” most of which have little to do with actual history. They are sublime dramas, but anyone really wanting to know about the fate of Julius Caesar or King Macbeth of Scotland should dive into actual history. Given Shakespeare’s own loose relationship with history, maybe Anonymous is a certain kind of karmic payback?

Or maybe not. A.O. Scott’s review is less than kind:

“Anonymous,” a costume spectacle directed by Roland Emmerich, from a script by John Orloff, is a vulgar prank on the English literary tradition, a travesty of British history and a brutal insult to the human imagination. Apart from that, it’s not bad.

Unless the point of the film is to undermine what Scott calls “a hoary form of literary birtherism” by exposing just how absurd the whole theory is. I suppose you’ll have to buy a ticket and see, which is the best thing for Emmerich’s bottom line, regardless.

And in the end, does any of this matter, anyway? Times theater critic Ben Brantley argues that it doesn’t. After all, the play’s the thing, as somebody or another once said. Nonetheless, there’s nothing wrong with standing up to conspiracy theories that upend the settled historical record. Truth is its own reward. Or at least it should be.

* To be completely fair to Amadeus, it’s told as a series of flashbacks by a man in an asylum, so there’s an obvious unreliable narrator problem staring you right in the face.  I have no idea if Anonymous uses the same trick to ensure some plausible deniability.

Evil, But Not Criminal

Over at the Volokh Conspiracy, Orin Kerr writes about one of those cases where the law doesn’t really catch up with the wickedness of the world.

It involves a fact pattern straight out of a Hollywood movie. A group of drug enforcement officers go about their usual routine – investigate tips of drug activity, make controlled buys of drugs from dealers, arrest them, etc. Everything is on the up and up, with one exception. Instead of sending the dealers into the criminal justice system, the cops let them go. Then the cops take the drugs they seized from the dealers, sell them, and pocket the cash for themselves.

Now, surely the cops committed a crime, right? Well, yeah, but which one? How about violation of the dealers’ civil rights (their Fourth Amendment right against unreasonable searches and seizures, in this case) under color of law, pursuant to 18 USC 242? The Sixth Circuit said, “yes” and affirmed convictions (and life plus 255 year sentence) under that statute. Kerr makes a pretty compelling argument that the Sixth Circuit got it wrong.

The problem that Kerr correctly identifies is a long line of Supreme Court cases interpreting the Fourth Amendment holding that the proper way to analyze those claims is by using an objective, rather than subjective, approach. The only issue is whether there was probable cause to search/arrest, not whether the cop doing the searching/arresting for some other reason.

It’s an outgrowth of a case called Whren, in which a motorist argued that a cop violated the Fourth Amendment by pulling him over because he was black, rather than because he committed a minor traffic violation. The Supreme Court wouldn’t bite and held that as long as there was a legit basis to make the stop, it doesn’t matter if the cop had an ulterior motive in making it. One the one hand, that holding makes sense – to hold otherwise would require some real mind reading on the part of courts. On the other hand, it’s pretty much given cops carte blanche to stop folks for any reason they want, as long as they can gin up some objective “facts” to support it.

At any rate, as Kerr points out, under Whren and subsequent cases, so long as the cops in this case had probable cause when they stopped and searched these dealers (everybody agrees that they did), there was no violation of a “clearly established right.” You have no right to be free from reasonable searches and seizures, after all. That the cops never had any intention on following through with the normal procedure afterwards is irrelevant.

The Sixth Circuit gets around Whren two ways, although the meat off their analysis is that the defendant’s conduct was “thoroughly and objectively illegal from start to finish.” Whren doesn’t apply because the cops weren’t acting as cops (“bona fide law enforcement purposes”), they were acting as criminals. The Sixth Circuit also argues that Whren was all about excluding otherwise valid evidence in a criminal trial, and thus was distinguishable from what went on here.

Kerr isn’t convinced and I’m not sure I am either. He notes that Whren doesn’t mention “bona fide law enforcement purposes” nor really provide any support for that qualification on Fourth Amendment analyses. However, the Fourth Circuit relied on a similar rationale in a case decided last year, although in a very different context. In US v. Taylor (click here for a fuller discussion), the court held that an officer who entered a home while trying to locate the parent of a lost child (and, in the course of doing so, found contraband) didn’t violate the Fourth Amendment. Along the way, it noted that a warrant was not required because the officer was not involved in a law enforcement investigation when he entered the house. In other words, he wasn’t acting for “bona fide law enforcement purposes.”

Obviously, the Fourth Circuit isn’t the Supreme Court and Taylor is very different from the case Kerr is discussing. However, it does show that the Sixth Circuit might not be as far out on a limb as Kerr makes it out to be.

Although this appears to be a case were the court is attempting to ensure that crooked cops don’t get away, the fact is there are lots of other crimes for which these guys were convicted. Among others, there’s garden variety drug trafficking. There’s no need to stretch the law to cover every evil thing these guys did. The garden variety tools are just as effective. Just ask Al Capone.

Friday Review: The Destiny of the Republic

Everything I learned about presidential assassinations I learned from musical theater.

OK, that’s not entirely true. The details of the Lincoln assassination are so prevalent in the culture that you sort of soak those up during your life. As for JFK’s killing, well, there’s always Oliver Stone (kidding!). But as for our two lesser know victims, James Garfield and William McKinley, my knowledge base really comes from Stephen Sondheim’s brilliant, macabre take on the whole political killing business, his 1990 musical Assassins. Such are the benefits of having a college roommate with both a deep appreciation of musical theater and a skewed view of the world that resembles my own.

Thus, my prior knowledge of the Garfield assassination was pretty much limited to the fact that he was shot by a crazed office seeker named Charles J. Guiteau. Guiteau claimed that he was only doing God’s will, but (as the song says) “God was acquitted, and Charlie committed until he could hang.” Turns out, of course, that the situation had a lot more factors going into it than can be distilled into one song (even a really good one).

Those factors come to life in The Destiny of the Republic: A Tale Madness, Medicine and the Murder of a President, a detailed examination of the whole incident by Candice Millard. Millard makes a compelling case that Garfield’s eventual death – he lingered for almost three months after shot by Guiteau – was due at least as much to the medical care he received as it was to an assassin’s bullet. American doctors, who at the time were still fighting back Joseph Lister’s theories on antiseptic medicine, poked and prodded the president with numerous unsterile instruments (including their unwashed fingers), triggering infections that eventually led to his death.

While Millard spends a great amount of time (particularly in the book’s second half) on Garfield’s lingering death, the first half of the book is spent setting up not only the lives of Garfield and Guiteau up to that point, but the world in which they lived. It’s a fascinating snapshot, showing both how different the United States of the 1870s-1880s is compared to today, and how disappointingly similar the two eras are.

Both men had formative events that would not happen in the modern era. Guiteau had a long spell as a member of a utopian socialist commune in New York, becoming part of a vibrant movement in the 19th Century that knows no real analog today. Meanwhile, Garfield managed to become President of the United States without ever seeking out the office. Not only did he enter the 1880 Republic convention in Chicago without being a candidate, his role at the convention was to make the nominating speech of a fellow Ohioan, John Sherman (brother of General William Tecuhmsa Sherman). But his speech, part of a back and forth between entrenched spoils-system Republicans and reformers, was so well received (and made, in part, on the behalf of some oppressed delegates from West Virginia), that he began to receive votes during the numerous rounds of ballots. After two days of voting, he was the GOP nominee. Imagine Chris Christie getting drafted in that way today!

The politics of the day, however, would be depressingly familiar to anyone who pays attention to the way the game is played today. While Garfield holed up on his Ohio farm (it was considered unseemly for presidential candidates to actually campaign in that era – outgoing President Hayes suggested to Garfield that he sit on his porch and “look wise”), his surrogates engaged in the kind of negative campaigning we find today. His opponent, former Union General Winfield Scott Hancock (at one point, it seems like every pol in the book can be called “General”), is bashed not only on his lack of a record (printing up blank pamphlets titled “Hancock’s Achievements”), but for being a Democrat and, therefore, quite possibly a Confederate sympathizer (in spite of, you know, being a Union general and all). Undaunted, Hancock’s forces lobbed corruption allegations at Garfield, scrawling “329,” the amount of money he allegedly gained from an insider trading scandal, all over the place – even including inside the homes of prominent Republicans. The result was a comfortable Garfield victory, although the popular vote margin was on 1898 votes (out of nearly 9 million cast).

Guiteau, meanwhile, leads a life that would be familiar to anyone who deals with mental illness and the criminal justice system. There’s little doubt that Guiteau is insane. He was also a crafty con man, managing to repeatedly run up various debts and then simply slip away under cover of darkness. He could be violent, threatening his sister with an axe and tormenting his wife during their short-lived marriage. However, given that he was a pauper and his family had few assets, they couldn’t afford to have him committed. Even his purchase of the gun has a ring of Dirty Harry to it – he knows nothing of firearms, so he goes in an buys the biggest damn pistol he can find.

Even the nation’s reaction to the shooting seems familiar. In spite of popular conceptions of 19th-century America as being a collection of isolated parochial places, fact is the nation was uniting as it never had before, thanks to railroads, telegraphs, and the recent introduction of Alexander Graham Bell’s telephone (more of him later). Word of the shooting spread across the wires immediately after it happened. Some papers printed rushed incorrect information that Garfield had already died. Letters of support and advice poured in to the White House from all over.

Sadly, the reaction to Guiteau’s act was also something that would not look out of place today. He was locked up immediately, more for his own protection than because he was charged with anything. One of his jailors took a shot at him. Crowds gathered and called for Guiteau to be lynched (Millard even quotes newspaper editorials in favor of it). Once Garfield died and Guiteau’s legal defense hinged on insanity, it was clear that nothing other than a guilty verdict and the death penalty would do. And, of course, political points were scored, with civil service reformers linking Guiteau’s acts to the politicians most associated with the spoils system (including Chester A. Arthur, who became president when Garfield died).

All of this lends rich context to the basic story Millard tells of the President, the assassin, and incident that linked them in history forever. That being said, the book tends to drag a bit in that second half, partly because the story of Garfield’s slow death is redundant and partly because of an odd shift in focus.

Guiteau slinks to the shadows for much of the second half (at least until his trial), while Bell comes to the fore, feverishly working on an invention that would allow Garfield’s doctors to find the bullet lodged within him. While fascinating that the inventor was involved in the situation at all, there’s really no payoff. For one thing, it’s never clear what the doctors would have down had they known where the bullet was (their guesses, it turned out, were way off). Millard even mentions that many gunshot victims and Civil War vets walked around with bullets still inside them with no ill effects, so it’s an odd thing to focus on. But, more importantly, Bell’s gizmo doesn’t work in the end, so the whole tangent seems a bit pointless. In this interview, Millard explains that she came to the Garfield assassination while doing research on Bell, so maybe she was just reluctant to let that research go to waste.

Instead of leaning on Bell’s story, I wish Millard would have focused more on Guiteau and what happened to him after the shooting. As I said, he was in jail the whole time, but it doesn’t appear he was charged with anything until Garfield died. Did anybody suspect that might be a problem? And we learn that the only lawyer willing to represent Guiteau is his own brother, who practiced patent law, not criminal law. Surely they searched for someone else, the era’s version of Clarence Darrow or Gerry Spence, who would have reveled in the challenge. Did they all say “no”? Did nobody even look into the possibility? Yes, I admit, I’m a criminal procedure geek, but c’mon!

Millard also falls a little short of her title, Destiny of the Republic. Although there is some discussion of the political calculus in when to bring the vice president into the mix, there is no sense of urgency about the matter. Garfield, while dying, was fully lucid and conscious to the end. There was nothing like, say, Ronald Reagan’s unconsciousness following his assassination attempt (or an equivalent to Alexander Haig’s “I am in control here” declaration). And once Garfield was dead, Arthur stepped in and performed admirably. However traumatic Garfield’s lingering death was to the national psyche, it’s hardly a turning point in the nation’s history.

In the end, where the book really shines is in the contrast of Garfield and Guiteau, two men swept into their fatal confrontation by things beyond their control. It’s ironic that Garfield, who never really wanted to be president, is the kind of person who we should want to become president – educated and inquisitive, a voracious reader, and apparently a genuinely decent guy. And yet, even as part of a very select club of assassinated presidents, he’s pretty much forgotten these days. Of course, Guiteau is not exactly a household name, either.

Unless you’ve been to the theater.

The Details
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The Destiny of the Republic: A Tale Madness, Medicine and the Murder of a President, by Candice Millard
First published in 2011

Talk About Bad Timing

As the Major League Soccer regular season comes to a conclusion, things in DC United land just took another unexpected turn. The team’s been in a skid for the past few weeks, in spite of the lure of the playoffs dangling right in front of them. Nothing exemplifies that more than Saturday’s home game against Chicago, where DC appeared to salvage a late win on a Dwayne de Rosario penalty kick, only to concede two goals to the Fire in stoppage time.

So the club’s playoff hopes hang by the slenderest of threads (win the last two games and appeal to the fates for help), when this happens.

Two years ago, Charlie Davies was a rising star with the US National Team. A skilled forward with blazing speed scoring goals in a top European league (France’s Ligue 1, with Souchoux), he appeared to be the answer to the perpetual American quest for a true finisher up front. Then, before a World Cup Qualifier against Costa Rica in DC, Davies broke curfew, went to a party, and wound up involved in a horrific car wreck. Davies was severely injured, another passenger was killed, and the driver, who was drunk, was later convicted of manslaughter.

One of the feel good stories at the beginning of the season was Davies’s return, playing for DC United on loan from Souchoux, after recovering from his injuries.. Although he’s not back to his prior form (and has developed a reputation as a bit of a diver), Davies’s 11 goals have helped keep DC in the hunt all season. It’s still a pretty good story.

Save for this latest complication. Davies has sued, for $20 million, both the club at which the party was held and, ironically, Red Bull (which, of course, owns the hated rivals from New York) which organized it. DC, apparently, has a version of a statute commonly called a Dram Shop Act, which allows people injured by someone to sue the providers of the alcohol they consumed, if it was obvious the person was drunk and should have been cut off. The theory, then, would be that the club (and vicariously Red Bull) should not have continued to serve alcohol to the driver because she was visibly intoxicated.

It sounds to me (with the caveat that I have no experience with this kind of litigation – to quote Herman Cain, “I don’t have any facts to back this up, but . . .”) that this will be a tough sell. For one thing, it seems to me that Dram Shop Acts were designed to protect wholly innocent third parties, not others associated with the drunk driver. In other words, to compensate the driver of the other car, not the passengers who rode with the drunk driver. I imagine a jury will want to know how, if the driver was so obviously intoxicated, Davies didn’t see that as well. His lawyer’s already out in front on that question:

We believe the facts will show, among other things, that Mr. Davies had no interaction with the driver at the Shadow Room and was in a separate room. Without getting into detail, as he was leaving, the driver asked if she and her friend could give him a ride to his hotel. In the hustle and bustle of the lobby as he was walking out -- a split-second decision — he said yes. There was no meaningful time in which Mr. Davies had an opportunity to ‘observe’ the driver; he had no knowledge what she had been drinking or whether she had been drinking.

We’ll see how that goes (see Update below). More problematic, at least to the extent that Davies’s suit is looking for compensation due to his missing out on the World Cup last year and his career generally coming to a halt, he’s really go nobody to blame for that but himself. Had he heeded the instructions of his coach, he never would have been out in that situation at all. I don’t know if Dram Shop Act cases deal with contributory/compensatory negligence, but I’ll bet a good defense attorney makes sure that information gets in front of a jury, regardless.

But, above all, what shitty timing. Davies has been a spotlight player for DCU and the league this year. He was in the mix for the Gold Cup squad this summer before he picked up a knock. I understand that the timing is down to the statute of limitations (most states have a 2-year statute of limitation on tort suits), but still. To anyone predisposed to see any lawsuit as a bad thing, Davies looks like a guy who made a bad decision trying to fob it off on someone else, at a time when his team is in desperate need of cohesion. It’s going to leave a bad taste in the mouth of not just DC fans, but many USMNT fans as well.

Davies may very well win his suit, one way or the other. But I wouldn’t count on being welcomed back into the good graces of the American soccer faithful anytime soon.

UPDATE:  Of course, he told Sports Illustrated soccer writer Grant Wahl something different earlier this year:

Davies says he didn't drink any alcohol that night, and Roberta and Espinoza, in his words, 'seemed completely normal. There wasn't even a second where I thought they might have had too much to drink.'

Oops.

Wrong and Happy About It

Let it never be said that I won’t fess up when I get something wrong.

Back in August I blogged about a fascinating case up in Rhode Island, where the state’s governor, Lincoln Chafee, refused a request from the federal government to turn over an inmate in state custody to face trial on federal charges that could carry the death penalty. Invoking a little-known clause of the Interstate Agreement on Detainers, Chafee exercised his right to refuse based on Rhode Island’s long stance against capital punishment. The Feds didn’t like is, so they filed a writ of habeas corpus ad prosequendum to drag the defendant to federal court. Chafee and the defendant sought to have the writ quashed.

At the end of my blog post, I wrote:

In the end, I expect the First Circuit (and maybe the Supremes afterwards) to hold that Chafee has to turn [the defendant] over. But I’m willing to be pleasantly surprised if it turns out otherwise.

Guess what? I’m pleasantly surprised. Last week the First Circuit affirmed Chafee’s ability to refuse to comply with the writ, on the grounds that once the Feds invoke the IAD, they are bound by its terms, including the provision allowing the governor of the state in possession of the inmate to refuse to turn him over. It was a split 2-1 decision, although I did not find the dissent compelling. However, that fact could be a springboard for the Feds to seek en banc review from the entire court or take it to the Supreme Court.

Which, sadly, I expect they will do. The case has an issue that probably should be settled by the Supreme Court, but one would think that in this time of runaway deficits that the Feds could find something better to do with limited resources than spend (potentially) millions of dollars to try, convict, and execute a guy who will die in a Rhode Island prison anyway.

Sure, there are state sovereignty issues at play, too, but as demonstrated by the latest crackdown on state licensed medical marijuana operations, the Obama administration doesn’t give a shit about that. Still, money talks and bullshit walks, right? Yeah, but not when the blood lust runs high and an execution is in the offing.

What will the en banc First Circuit or the Supreme Court do with the case, if the Feds push it further? I don’t know. The majority’s opinion is in depth and compelling, but I still find it hard to believe that it will end up being the last word on things. So I’ll keep my original prediction in play, of the Feds seek further review – this defendant will eventually get turned over to them for trial. Either I’ll be right or, again, pleasantly surprised. I’ll take those odds.

Behind the Scribbling: “The Last Ereph”

Over the weekend, the final edition of The Absent Willow Review went live, which includes my short story, “The Last Ereph.” You can read my story here. Be sure and check out the rest, too. Some of them look pretty good. Thanks again to the AWR folks for publishing my story, and my condolences on going out of business.

That said, I thought I’d provide a little bit of background on that story.

I actually started this story out the old fashioned way, longhand. I took a pen and notebook with me to ProgDay in 2010, figuring that the rustic setting and downtime between sets would provide some good inspiration. Why I didn’t think to take my netbook, I have no idea. My handwriting is legendary in its awfulness and my hand cramps up after a few lines. Regardless, it jotted down about the first half of things in the shade at Storybook Farm, appropriately enough. The rest came together at home, with invaluable editorial assistance from K. Any particularly brilliant turn of phrase is probably due to her. Thanks, honey!

The inspiration for the story came, oddly enough for an atheist, from some sympathy for a dying religion. I read an article a while back in the New York Times about Zoroastrianism and how it was on the verge of dying out. Now, the Zoroastrians were monotheists way before it was hip, worshiping one god in Persia before even the Jews came on the scene, must less the late arriving Christians and Muslims. That being said, they should be legion, yes? Not anymore. From what I remember from the article (caveat – I could have it completely wrong), Zoroastrians don’t prosthyletize, don’t claim an exclusive in to the truths of the universe, and don’t frown on things like intermarriage with folks from other faiths.

What I took away from the article was that the Zoroastrians were disappearing because they were open minded and non-confrontational, which really struck me as kind of a shitty fate. So I decided to write about it. In the universe of “The Last Ereph,” people belong to “cult houses” like people today belong the churches. They’re more philosophical than religious, although there are those about (I guess – maybe we’ll find out sometime later?). The semi-hero, Kol, stumbles into a decrepit house of a cult with only one remaining member. Will it stay that way? You’ll have to read it to find out.

As for the perhaps most critical question, asked by my parents: “how do you pronounce ‘ereph’?” I have no idea. That’s one of the beauties of writing fantasy – I get to make up words and not give a damn what they sound like out loud. I’ll leave the film/television/audiobook adapters to worry about that.  And individual readers, of course.

That's it.  Enjoy!

A Musical Interlude

Apparently, the long holiday weekend has drained my blog-fu for this week. So here's a quick ditty I whipped up a couple weeks ago to tide you over until next week.

Friday Night (and My Baby's In Another State) Blues by Infinity Ranch

Friday Review: Contagion

I’ve seen multiple reviewers quip that watching Contagion, Steven Soderbergh’s meditation on a global pandemic, in a movie theater is a bit like watching Jaws in a rowboat. That’s true. Even before Gwyneth Paltrow’s face gets peeled off during an autopsy, the way Soderbergh’s camera lingers on every bit of human contact makes you hyperaware of any cough, sniffle, or wheeze emanating from your fellow moviegoers. In that sense, Contagion is frightening as hell. Shame it’s not a very good movie.

The problem isn’t with what is on the screen. Soderbergh’s a great director with well developed visual chops, which he puts to great use in the beginning of the film as we trace the spread of the disease out of Hong Kong via a handful of people unfortunate enough to have interacted with the aforementioned Paltrow at a casino. We get quickly introduced to a broad range of characters, from public health officials and scientists tracking the disease, to those impacted by the spread, to even a crazed altmed blogger who sees the thing through the lens of conspiracy theories.

A good start. Problem is the movie plows on through the spread of the disease and the eventual development of a vaccine to stop it in a way that is almost completely devoid of the characteristics of engaging drama. The characters are barely fleshed out. Some disappear for long stretches of time for no good reason. The world’s going to hell in the background, we’re told, but it hardly ever shows (electricity flows, the water works, and everybody looks pretty well fed). There’s no real conflict, at least one that’s more concrete than the metaphysical “man v. nature” theme. Yes, obstacles are overcome and (in the end) someone saves the day, but it’s done with all the power of a midlevel documentary produced for high school students.

A part of the problem might be something for which Soderbergh and his collaborators should otherwise be praised. Everything I’ve read suggests that the science in Contagion is spot on. It’s rare enough for Hollywood to get it kind of right, but to get it really right is an achievement in and of itself. Unfortunately, it doesn’t necessarily lead you anywhere, dramatically. Years ago I blogged about a German film, Sophie Sholl - The Final Days, that was so true to the historical record that some scenes had entire stretches of dialogue taken directly from transcripts of the heroine’s interrogation session. Historically interesting? Certainly. Compelling drama? Not so much. Same with Contagion. The process of how things worked out is interesting in its own right, but it’s not particularly enthralling.

To the extent that Contagion goes looking for conflict, it finds it in the contrast between the diligent and persevering scientists/public health types and the nutty blogger mentioned above, played by Jude Law. There’s actually a lot there you could go into – click the link for Respectful Insolence at the right for a blog devoted to that kind of conflict – but Contagion stacks the deck too heavily on the side of the scientists for it to be a fair fight. Not only are the scientists all diligent, competent, and generally good at their jobs, they are also selfless altruists who make grand gestures for the benefit of their fellow human.

Perhaps the best example is Kate Winslet’s character, sent by the CDC to Minneapolis (where poor Gwyneth returns to lose her face) to get a handle on the situation and work with the local public health apparatus. Of course, she gets the disease and dies. With her dying action, she tries to give her coat to the guy in the cot next to hers in the ward where the dying have been stockpiled. On its own, it would be a touching human moment. Combined with a CDC director who gives his dose of the vaccine to the child of one of the facility’s janitors, a researcher who tests the successful vaccine first on herself, and a World Health Organization researcher who develops a quick case of Stockholm Syndrome (off screen, natch’), it’s just one more repetitive beat on the nature of the good guys.

In the face of that, Law’s nutty blogger never really stands a chance. It’s not enough that he floats the idea that the virus is the result of a biological weapons program gone amok (it’s not). It’s not enough that he revels in the standard anti-vax conspiracy theory that drug companies ramp up fear to get people to buy their products. It’s not enough that he promotes a bullshit herbal treatment for the disease that may lure in the gullible (although, to be fair, there’s no other treatment at the time). No, on top of all that, it turns out that he’s actually making a huge payday off the sales of said herbal remedy and, in fact, is arrested for (of all things) insider trading.

I’m not saying that Soderbergh gets it wrong in this conflict when he assigns the white hats and black hats. It’s just that the good guys are so good they border on saintly. Meanwhile, the antagonist is not only a loudmouth of questionable influence, but is a shitty money grubber, too. It’s hard to make compelling drama out of a conflict when you put your thumb on the scales like that.  Hell, even movies with Nazis as bad guys try to make them a little more complex than the mustache-twiddling baddies from 1930s serials.

Which is a real shame, because Contagion lays out how something like this would really go. With some tweaking, it could be educational and gripping. As it is, it just comes off as stilted and cold. One thing’s for certain – you’ll never look at a hand shake the same way again. Or Gwyneth Paltrow’s skull.

The Details
-------------------
Contagion
Released 2011
Directed by Steven Soderbergh
Written by Scott Z. Burns
Paltrow, Laurence Fishburne, et. al.

In Praise of Profanity

My thoughts on profanity, and the use of “dirty” words, are neatly summarized by this observation from Henry Drummond (aka Spencer Tracy) in Inherit the Wind:

I don’t swear for the hell of it. Language is a poor enough means of communication. We’ve got to use all the words we’ve got. Besides, there are damn few words anybody understands.

There’s a time and a place for everything, of course. I try not to drop F-bombs around my niece and nephews. Nor would I respond to a question from a judge like, say, “are you suggesting that this statute is unconstitutional?”, with “fuck yes!” There's a time and a place for everything. But, generally, I think that people who get overly up tight about that kind of stuff need to lighten up a bit.

Which is a long winded way of introducing some wisdom from George Carlin, passed on via Ed at Dispatches (and Paul Provenza’s book Sataristas), from an interview he gave just before he died. He's addressing the oft-repeated argument that people who are profane are compensating for a lack of intellect:

Yeah, that ‘You don’t need to; you’re a funny man, you don’t need that stuff’ thing. Well, my argument is that you don’t need paprika or oregano or a few other things to make a stew, technically, either — but you make a better stew. If you’re inclined to make a stew of that type, ‘seasoning’ helps.

* * *

Why should I deprive myself of a small but important part of language that my fellow humans have developed? Why not use all of what we’ve developed to communicate with?

* * *

I think the folks who choose to deny that part of our language have limited themselves. And that’s fine; that’s good. Good choice over there…but I’m just fine over here.

That being said, simply being filthy isn’t a sure fire way of being funny. Carlin cites Bill Cosby as a guy who never worked ‘blue” but was (at one point) really funny. I've got another example.

There's a classic Monty Python sketch where John Cleese plays a hungry reader who leaves the local library to buy some cheese. Cheese shop owner Michael Palin stymies him at every turn due to his lack of inventory (the shop is “certainly uncontaminated by cheese,” Cleese quips). Finally, after rolling through dozens of different varieties, they come to one Palin actually has:

Wenslydale: Ah! We have Camenbert, yessir.

Customer: (surprised) You do! Excellent.

Wenslydale: Yessir. It's..ah,.....it's a bit runny...

Customer: Oh, I like it runny.

Wenslydale: Well,.. It's very runny, actually, sir.

Customer: No matter. Fetch hither the fromage de la Belle France! Mmmwah!

Wenslydale: I...think it's a bit runnier than you'll like it, sir.

Now, in the version that aired on British TV (a curse-free zone), the next line was, “I don’t care how excrementally runny it is. Hand it over with all speed.” The way Cleese lands on each syllable of “excrementally,” combined with the barely contained anger that’s been building, is brilliantly funny.

By contrast, other versions in free-fire zones (Live at the Hollywood Bowl, for instance), the line is “I don’t care how fucking runny it is.” Maybe it’s because I heard the TV version first, but I just don’t think that’s as funny. There’s something about needing a creative way to work around the censor that can be very inspirational.

Which is not to say that censorship, self-imposed or otherwise, is the way to go. As Carlin points out, if you don’t want to work “blue,” then don’t. The rest of us will continue to use every color Crayon in the box. Put away the profanity?  Fuck that shit.

Note: David James Is English

I mention that right at the outset, because if an American had proposed some of the things James does in this column in The Guardian he would be set upon by defenders of the footy faith, persecuted as another heretic from across the pond, just like the ones who brought us multiple-point goals and artificial turf. Besides, that fact gives some cover to this American, who thinks James might be onto something, at least with most of the five things he identifies as things soccer could learn from its “egg-shaped cousin,” rugby.

The five things James identifies are (1) increased substitution flexibility; (2) making yellow cards more meaningful; (3) using technology to deal with disputed goal calls; (4) doing away with the transfer window; and (5) someone other than the ref keeping time. I’ve got no position one way or the other on transfer windows. And while goal line tech would no doubt help out in some cases, technology does not ensure correct calls (ask Toledo’s football team), so I’ll leave that to the side for now. As for the others, James has a point, if not a particularly good idea for addressing it.

Take substitutions. The sub rules in soccer look barbaric compares to most other modern sports – you get 3 per game, that’s it. If you use all three subs and then somebody else gets hurt or abducted by aliens during a corner kick, tough shit – you’re down to 10 versus 11. It was not always thus. In the good ole’ days no substitutions were allowed at all. As I understand it, substitutions were initially allowed only for injuries, but that rule was quickly abused, so it morphed into its current form.

Is “three” the correct answer for “how many substitutes should be allowed in soccer?” I dunno. I’ve seen plenty of matches where the last 10 or 15 minutes get pretty dire as 16 tired guys or gals just huff the ball around because nobody can actually run anymore. The three subs on each end run around like children gone off their Ritalin, but often with less interesting results. Maybe more subs would be better. Where James completely goes off the rails is his idea of “specialist” subs, with which we are all too familiar with in our own version of football, thank you very much. But there’s a happy medium somewhere, one that allows for a more up-tempo and offensive match during the whole 90 minutes, without turning it into the NFL.

I also agree that making yellow cards more meaningful would be a good thing, although not for the reasons James lays out. He’s concerned that the effects of accumulated yellows only pile up after several matches and the penalty ultimately served does little to benefit the “wronged” parties along the way. My concern is that a yellow card is really no deterrent for the kind of attack killing tackles that squelch interesting soccer. I’m thinking of the “professional foul” committed in the middle of the park during a counter attack simply to bring proceedings to a halt. It happens so often that defenders clearly aren’t troubled by the yellow (unless they’ve already got one). I’m not sure that the “sin bin” (that’s “penalty box” to you frozen pond types) would really work, as teams playing a man up for long stretches of time already rarely make the most of it. Five minute bursts of 11-on-10 action may not really add much to the game.

Where I think James is most correct is the issue of timekeeping. Soccer games are ruled with an iron fist by a single official who is responsible for all discipline, major decisions about things like goals, and the rather mundane job of signaling the end of the half or game. The clock runs continuously through each half, with a discretionary amount of “added time” at the end to make up for stoppages (allegedly). Thus, unlike most sports where the players, coaches, and fans all know precisely how much time is left in a game, soccer keeps everyone but the ref in the dark.

What I’ve seen of rugby timekeeping makes much more sense. Rugby halves run continuously, just like soccer halves (though they are five minutes shorter). The clock doesn’t stop for routine dead ball situations – line outs, scrums, what have you. But it does stop for longer stoppages, such as injuries or after a score. The ref signals the stoppage, the clock stops. It’s that simple. There is no added time at the end of the half or game because there’s no need for it. The half or game ends once the clock hits zero and the next dead ball occurs. Everybody knows what’s going on and what’s at stake.

Truth be told, Major League Soccer was on the right track with its timekeeping when it started, which involve the time being kept on the stadium clock and not by the ref. The mistake in the MLS plan was now allowing for any stoppages, so time wasting was pathetically easy. That being said, I can remember at least one last minute finish that simply wouldn’t have been as dramatic had we been playing the game the way the rest of the world did.

I don’t think anybody who is a soccer fan wants to fundamentally change the sport into something it’s not. That doesn’t mean it shouldn’t evolve as technology and the experiences of other sports show ways that little tweaks might enhance the game. Even an Englishman can recognize that.

Friday Review: Brave New World

One of the few books I’ve returned to repeatedly over the years is Brave New World, Aldous Huxley’s audacious dystopian classic. When I was young I read it for pleasure. In college, I read it as part of an independent study project on utopia and dystopia in fiction. A few weeks ago, spurred by a sale at Audible, I decided to read . . . er, listen . . . to it again. Fortuitously, I finished it up just as Banned Book Week began. Given that Brave New World is still one of the most controversial books of all time (in the top 10 books challenged in the United States last year), it seemed like a perfect choice for this week’s Friday Review.

For the unfamiliar, Huxley’s dystopia is developed in a completely different way from the nightmarish authoritarian worlds of, say, 1984 or Anthem. Orwell famously wrote that “[i]f you want a picture of the future, imagine a boot stamping on a human face — forever.” The world of 1984 is grey, depressing, brutal, and no place than any sane person would want to live. Huxley’s world, on the other hand, is at least superficially enticing. Everybody’s happy. Family strife and trauma have been eliminated, since families themselves are obsolete. There’s loads of things to buy and do to keep people occupied outside of work where, by the way, everybody does what they’re designed to do, so nobody gets fed up with their job. Sex as recreation is encouraged, if not mandated. And, if nothing else, there’s soma, a wonder drug that squelches any lingering worries.

Of course, it doesn’t really work out as well as advertised. If it did there’s be no conflict right? Thus no drama, thus no book. We meet characters who are outsiders, even in a world where everyone is so carefully crafted to be one of the horde. Things go completely haywire when a “savage,” that is a man raised outside the carefully crafted world in which most people live, shows up and begins to ask uncomfortable questions. Usually, at this point, I’d say “wackiness ensues,” but any book that ends with a major character killing himself really isn’t all that wacky.

That said, here are a few observations I picked up reading through Brave New World this time.

First, a writerly observation. Huxley starts the book off in a way that just about every “how to” book on writing says you shouldn’t. He doesn’t introduce any of the main characters. He doesn’t kick off the plot to get you hooked. Instead, he spends several chapters data dumping about how the people who live in this world are created and conditioned. It transitions nicely into the introduction of most of the major characters, but I can’t think a modern editor would be pleased with it. Which just goes to show that you follow the rules, unless you’re good enough to break them and get away with it.

A big part of Brave New World is about conditioning. As I said, Huxley spends several chapters at the outset explaining how children are bred, “decanted,” and conditioned via various means into the caste-bound happy adults they will become. What I never really picked up on before was how that conditioning bumps up against a more traditional form of conditioning, in the character of John “the Savage.” Raised on a reservation by a woman from the wider world left behind during vacation, he grows up as hard wired as the two main bottle-raised characters, Lenina and Bernard. That’s particularly evidence in his reaction to Lenina’s sexual advances, his revulsion driven by what he learned about sexuality in the reservation (namely that his mother, who shared Lenina’s conditioning, was outcast and beaten for having sex with several men in the area). Similarly, his drive to seek refuge in Shakespeare seems to come about in the same unthinking way. It all speaks to me as a commentary on how we are all conditioned by our environments, whether intentionally or not.

Which leads to an altogether less comfortable observation. The philosophical climax of the book is a long discussion between John and Mustapha Mond, the Resident World Controller of Western Europe, who basically runs that part of the world, in which they go back and forth about issues of free will, liberty, and the like. Particularly, John asks about the lower caste workers, who do the truly shit jobs. “Don’t they want better out of life?” he asks (I’m paraphrasing). It’s a question that would come to most us, raised as we are on the importance of “life, liberty, and the pursuit of happiness.” Mond’s answer, of course, is “no,” for the simple reason that they are doing the jobs they are conditioned to do, not just physically by psychologically. They don’t know what they’re missing, in other words.

That conversation resonated to me in that it reminds me of the problem of cultural imperialism and human rights. Like I said, most “Western” nations place a high priority on individual liberty, even at the expense of social order or tranquility. But other cultures – I’m thinking of some Asian ones – don’t place the same emphasis on individuals, instead focusing on group dynamics and social functionality. Does Mond’s explanation of why the lower castes aren’t unhappy with their lot apply equally to people who grow up in other cultures who don’t know they’re being denied the individual liberty others take for granted? Of course, the difference between us and them in the real world is much much less than the difference between the Alphas and Deltas of Brave New World. But I’m not sure that doesn’t just dodge the question.

I always viewed John as “our” representative in the book. After all, he’s the character whose upbringing most closely resembles our own. This time through, I came to the conclusion that I don’t want John representing me. He’s a closed minded fundamentalist asshole, only he quotes Shakespeare instead of the Bible. Not that he doesn’t make some potentially valid criticisms of the world he confronts. He’s just written in such a way that he’s not all that sympathetic. Of course, neither are the representatives of the modern world, either. In that sense, Huxley pushes everyone to the extremes of their positions, for whatever reason. It makes the conflicts ring a bit hollow, in the end, and presents an either/or choice, where something more subtle is possible.

John does have one thing going for him, although it ultimately hastens his demise – empathy. When John and his mother return to society with Lenina and Bernard, she quickly slips into a soma-induced coma and dies. In fact, her convalescence causes quite a spectacle, as people aren’t familiar with aging and are conditioned not to be afraid of death. John behaves in quite recognizable ways when his mother dies – he’s grief stricken, angry at those around him who aren’t, and generally miserable.

By contrast, at the end of the book John leaves the city and tries to live a hermit’s existence in the English countryside. That all goes to hell when a small group of workers catch sight of him flogging himself outside (more problems with sex, of course). Word quickly leaks out about the ritual, which a first brings the press to the area and then a collection of gawkers and curiosity seekers. Looking on from helicopters, they don’t see in John what most of us would – a troubled soul in pain trying to deal with something difficult. They see entertainment, because they’ve been conditioned to treat everything outside of work as entertainment, even other people. As a result, there’s no empathy there and they cheer on John’s flogging for the sake of spectacle. It’s quite nauseating, really. Normally we think of dehumanization as something we do to others, but Huxley turns it around.

Ultimately, what I think struck me most on this go round with Brave New World was my willingness to look critically at whether Huxley’s world is really a dystopia. Yes, the idea of a happy, if shallow, existence free from fear and doubt strikes me as inherently wrong in the gut. In fact, my gut reaction to it is similar to my feelings about transhumanism I wrote about a while back. But as in that piece, I have a hard time making a cogent rational argument as to why a world without pain would be a bad thing. Yes, if we were all eternally healthy we’d take it for granted, but is it necessary to be occasionally ill or injured (perhaps seriously) just to appreciate it? Is my reaction to Huxley’s world mere a result of my own conditioning?

Don’t get me wrong – I’m not going to run for president under a “soma for all!” platform anytime soon. In the real world, transitioning to the type of world Huxley proposed would involve so much coercion and violence that, even if the end product would be desirable, the horrors of getting there would be too much. For a fictional world in which to brainstorm ideas, however, I’m much more skeptical of the dystopian label than I’ve been before.

Which just goes to show you why Brave New World endures, both as a work of literature in its own right and as a target for censors. It makes people think, which can lead to all sorts of wackiness.

The Details
-----------------
Brave New World, by Aldous Huxley
First published in 1932

Why I Love the Multiculture

I first got online in 1994, as part of a special research project I was doing at WVU. At that time, you didn’t get a university email address just be stepping on to campus and home connections were still in the primitive AOHell stage. Nevertheless, the Net was already alive with the kind of discussions and connections that we see today.

For an impressionable college kid it was awesome. Suddenly I had access to whole communities of people interested in the same weird shit I was. Formula 1, at the time, was decidedly niche in the United States. Being able to connect with scattered fans around the country, not to mention those around the globe (I asked a question on USENET about the first Hungarian Grand Prix and got replies from actual Hungarians!) blew my mind. Not only did those connections nurture my love of niche sports like soccer and sports car racing, it eventually led me into the emerging modern progressive rock underground. The rest, as they say, is history.

All of which is introduction to partly explain why I find this column at Salon by the mononamed Toure to be a complete load of horseshit. In it he pines for what he calls the “monoculture,” that is the mass movement pop culture of the kind that you can’t get away from:

The epic, collective roar -- you know, the kind that followed ‘Thriller,’ ‘Nevermind,’ ‘Purple Rain,’ ‘It Takes a Nation of Millions to Hold Us Back,’ and other albums so gigantic you don't even need to name the artist -- just doesn't happen today. Those Moments made you part of a large tribe linked by sounds that spoke to who you are or who you wanted to be. Today there’s no Moments, just moments. They’re smaller, less intense, shorter in duration and shared by fewer people. The Balkanization of pop culture, the overthrow of the monopoly on distribution, and the fracturing of the collective attention into a million pieces has made it impossible for us to coalesce around one album en masse. We no longer live in a monoculture. We can't even agree to hate the same thing anymore, as we did with disco in the 1970s.

Putting aside some very valid objections from the comments, I’ll take Toure at his word. The monoculture is dead, a victim of the increased number and visibility of niche markets for pop culture works. So? Is he really suggesting that less choice is better when it comes to personal amusements? ‘cause, you know, that’s stupid.

As someone who lived through The Moments(tm) he lists, I can report that I was not swept up by them, except in the sense that I was aware of them. Michael Jackson? Never a fan. Prince? The same, except as the subject of a Kevin Smith monologue. Nirvanna? Meh. I don’t even recognize the other one so, obviously, I could care less. More to the point, at the time those Moments(tm) were happening, I was wandering in the musical desert without any real stuff that was firing my imagination.

You know what changed that? The Net allowed for the niche of all niches, progressive rock, to gain enough of a profile that I found out about it. Not only hadn’t it died in 1975, there were new and vital bands striving to do new and interesting things, as well as harken back to the glory days. It didn’t matter that they weren’t high profile enough to merit being stocked at the local CD store. Thanks to email (and eventually web commerce), I could order directly from the bands. How much more of a niche moment can you have than Alan Morse calling me at home to figure out a problem I had ordering the first Spock’s Beard album, during which he broke into a chorus of “Country Roads?” I wouldn’t trade that to be part of some massive Moment(tm).

The funniest part of Toure’s piece is his example of the devastation that the multiculture has wrought:

Nowadays my music conversations run like this:

‘So what are you listening to?’

‘Aw, you gotta check out Danny Brown and Abbe May and Das Racist.’

‘OK, cool. I've never heard of them.’

‘What are you listening to?’

‘Cat’s Eye and Ariel Pink and Little Dragon.’

‘Oh. I gotta check them out.’

No connection is made.

Wait, what? So the problem today is that when you talk to friends about music you find out about new music you might want to hear? Maybe I’m strange because, but if I had a conversation with a friend about music – presumably one in which I had some faith in his musical tastes (if not, why bother?) – and learned about three bands I’d never heard of before, I’d consider that a good day.

But, then again, maybe I’m just strange. I don’t care about Moments(tm) shared with millions of strangers. I care about finding and experiencing amazing music. New music. Old music. Confusing music. Whatever. To the extent I share those moments with anyone else, it’s in the hope that enough people get into it to keep the artists making more music.

So, fuck the monoculture. Long live the multiculture!

Create-a-Crime

Years ago I wrote about cops in New York City who, apparently bored with the lack of real crime going on about them, set about creating some, leaving “lost” purses around town and arresting those who walked away with them with theft. Apparently, that do it yourself mentality is alive and well in the Big Apple as a part of the War on (Some People’s) Drugs. Color me stunned.

As the New York Times reports, simple possession of a small amount of marijuana is not a crime (since the 1970s) in New York. However, possession of pot “in public view” is still a misdemeanor. Enter the NYPD:

Critics say that as part of the Police Department’s stop-and-frisk policy, officers routinely tell suspects to empty their pockets and then, if marijuana is displayed, arrest them for having the drugs in public view, thereby pushing thousands of people toward criminality and into criminal justice system.

As Orin Kerr notes over at Volokh, the question of whether such an order violates the Fourth Amendment is not as easily answered as it should be. And even if it was a clear violation for cops to make such a request, most lay people won’t know they can refuse. Regardless of the constitutionality of the stops, it’s beyond unjust to punish someone for doing precisely what they’re ordered to by the police.

Thankfully, NYPC Commissioner Raymond W. Kelly has issued a memo aimed at stopping the process:

The memo says, ‘A crime will not be charged to an individual who is requested or compelled to engage in the behavior that results in the public display of marihuana.’ The act of displaying it, the order continues, must be ‘actively undertaken of the subject’s own volition.’

That’s a step in the right direction. If we’re going to continue to wage this fruitless War, let’s at least play fair, all right?

Live from Richmond!

An overwhelming amount of time, my job consists of me sitting in my office either reading or writing. On a few occasions, I’m dragged out into the light, dusted off, and sent to Richmond for oral argument before the Fourth Circuit. Now, thanks to the wonders of modern technology, you can hear me in action.

Last Friday, I argued a case that dealt with the Fourth Amendment and what has to happen before a police officer can transform a traffic stop into an immigration investigation. You can hear the argument, which went on well past the usual 20 minutes per side, here. For a little bit of setup, here's the summary of argument section of my opening brief:

Guijon-Ortiz was a passenger in a truck that was the subject of a traffic stop. Once the legitimate purpose of the stop had been extinguished and it was concluded that the driver was properly licensed and authorized to drive the truck, the traffic stop should have come to an end. The district court erred by denying Guijon-Ortiz’s motion to suppress the evidence of his identity and immigration status that was discovered thereafter. The district court incorrectly concluded that the officer could use time he otherwise would have used to write a traffic citation to pursue other investigative hunches. It also incorrectly concluded that the officer had reasonable suspicion that criminal activity was afoot. Because the evidence discovered as a result of the improperly prolonged traffic stop was the only evidence supporting the charge against Guijon-Ortiz, his conviction must be vacated.

As you can see . . . er, hear . . . the discussion at oral argument went off on a tangent not addressed in the briefs. It happens, sometimes. It’s both thrilling (talk about thinking on your feet!) and frightening, since you’re obviously stepping into uncharted waters. Regardless, we’ll see in a few weeks/months what the end result is.

Church or Jail? Tough Call

As a criminal defense lawyer, I always appreciate it when judges or others in the criminal justice system come up with sentences for low-level offenders that don’t require them to go to jail. We lock entirely too many people up in this country and we should be more vigorous in pursuing alternatives. Nonetheless, is it too much to expect that they not come up with alternatives that blatantly violate the Constitution?

One small town in Alabama has come up with an alternative sentencing scheme that really makes you shake your head. It presents a simple choice – go to jail or go to church:

Operation Restore Our Community or ‘ROC’...begins next week. The city judge will either let misdemenor [sic] offenders work off their sentences in jail and pay a fine or go to church every Sunday for a year.

If offenders elect church, they’re allowed to pick the place of worship, but must check in weekly with the pastor and the police department. If the one-year church attendance program is completed successfully, the offender's case will be dismissed.

It’s actually not even an alternative sentence, it’s better than that. If you choose jail, you have a criminal record that will follow you for the rest of your days. The church program, on the other hand, operates like a pretrial diversion program and erases your misdeeds if you complete it.

Regardless, it’s a clear First Amendment violation, as Eugene Volokh explains:

Both conservative and liberal Justices agree that coercion of religious practice violates the Establishment Clause. And while they disagree on what counts as coercion of religious practice (e.g., does being exposed to prayer, and socially pressured to stand and remain silent, at a high school graduation ceremony that isn’t legally required, qualify as coercion?), this is not a close case: Just as it would coerce religious practice to say someone who hasn’t been convicted of a crime, ‘go to church or we’ll send you to jail,’ so it coerces religious practice to say someone who has been convicted of a crime, ‘go to church or you’ll stay in jail.’

Apparently violates the Alabama state constitution, too.

It’s not enough, as the local police chief who dreamed up this scheme explained, that you can choose jail or church (assuming there is a particular flavor of “church” that includes your own – there are no references to mosques, synagogues, or other non-Christian services in any of the news coverage). In reality, that’s no choice at all.

Kudos to the powers that be for thinking outside of the box, but, to paraphrase a great being, “so ten out of ten for intent, but minus several million for good thinking, yeah?” So, it’s back to the drawing board with you. Read this first. And this. In fact, there’s probably some Alabama statutory law you’ll need to be familiar with, too. Come to think of it, just get together with a law talking guy (or gal) or two. They can set you straight. I hope.

Friday Review: Depois Do Fim

To paraphrase Frank Zappa, prog in the late 1970s and early 1980s wasn’t dead, it just smelled funny. In fact, lots of bands, inspired by the pioneers who broke out in the early 1970s, got together and made an album or two during that time. Given the generally hostile reception they got, those bands didn’t tend to last very long. Those albums slipped away into the history books.

One of the cool things about the combination of the growth of the Internet and fairly cheap CD production technology in the 1990s was that lots of these lost gems found their way to the light again. How else would a single album released by a Brazlian band (with lyrics in Portugese, natch’) find its way to the ears of someone in West Virginia?

Which is a fine thing, because Depois Do Fim is a real gem. To be sure, it is a creature of its time. Sonically, it sounds a little dated and a little muddy. Bands at the time didn’t have access to top quality home equipment we do these days. That being said, it sounds good, but in a low budget kind of way. Musically, it’s purely second-generation symphonic prog, influenced greatly by the likes of early Genesis and the Italian scene. There is nothing at all ground breaking about the music on Depois Do Fim.

It is gorgeous, however. The tracks alternate between instrumentals and vocal tracks. The instrumentals have a great sense of melody and flow, allowing the players to stretch a bit without going all wanky. Vocalist Jane Duboc stars on the vocal tracks, obviously, with a beautiful, powerful, and expressive voice. I have no idea what she’s saying, but who cares.

This album came to my attention because it’s rated as one of the top symphonic prog albums of all time by users over at Prog Archives. Is it, really? It’s hard to say. Any piece of second-wave music has to take a step back to the ground breakers that came before it, regardless of how exceptionally executed it is. That doesn’t have any impact on whether it’s a wonderful listening experience in its own right. It is. And I’m grateful it made its way north for me to hear.

Details
------------
Depois Do Fim, by Bacamarte
Released 1983

Tracks:
1. UFO (6:26)
2. Smog Alado (4:11)
3. Miragem (4:54)
4. Pássaro De Luz (2:28)
5. Caño (1:59)
6. Último Entardecer (9:29)
7. Controvérsia (1:57)
8. Depois Do Fim (6:31)
9. Mirante Das Estrelas (6:11)

Players:
Jane Duboc (vocals)
Marcus Moura (flute, accordion)
Mario Neto (guitars)
Mr. Paul (percussion)
Delto Simas (basses)
Marco Veríssimo (drums)
Sergio Villarim (keyboards)

Good News, Bad News

A quick update on the short story I had accepted for publication last month.

First, the good news. The original plan was for "The Last Ereph" to appear in the November edition of The Absent Willow Review, going online on November 16. Things have been pushed up a month, so it will appear in the edition going online on October 16.

Now, the bad news. That edition will be the last edition of The Absent Willow Review, which is sadly going out of business after nearly three years. The site will remain up until December. It's a shame any time a market shuts down, but it's hard not to take this one kind of personally. Poke around the site while it's still around. And, of course, check back on October 16!

Same As It Ever Was

The scandals rocking major college football continue:

[T]he Carnegie Foundation made headlines with a report, ‘American College Athletics,’ which concluded that the scramble for players had ‘reached the proportions of nationwide commerce.’ Of the 112 schools surveyed, 81 flouted NCAA recommendations with inducements to students ranging from open payrolls and disguised booster funds to no-show jobs at movie studios.

By “continue,” I mean they’ve been going on for nearly a century. That Carnegie Foundation report came out in 1929. 10 years later, freshman players at Pitt went on strike . . . because they weren’t getting paid as much as their more senior teammates.

Those two tidbits are just a part of the fascinating, and depressing, history of the commercial side of college sports laid out in Taylor Branch’s new article in The Atlantic (via). Branch is arguing that college athletes should be paid, although I’m still not convinced (beyond the scholarships, academic assistance, etc.). What he does do is make a good case that NCAA invocation of “amateurism” and “student-athletes,” at least when it comes to the big money sports, is not only hollow, but pretty much always has been.

In fact, the term “student-athlete” first popped up in litigation:

The term came into play in the 1950s, when the widow of Ray Dennison, who had died from a head injury received while playing football in Colorado for the Fort Lewis A&M Aggies, filed for workmen’s-compensation death benefits. Did his football scholarship make the fatal collision a ‘work-related’ accident? Was he a school employee, like his peers who worked part-time as teaching assistants and bookstore cashiers? Or was he a fluke victim of extracurricular pursuits? Given the hundreds of incapacitating injuries to college athletes each year, the answers to these questions had enormous consequences. The Colorado Supreme Court ultimately agreed with the school’s contention that he was not eligible for benefits, since the college was ‘not in the football business.’

Equally fascinating is how the NCAA, which wasn’t organized with any real authority over the schools that made up its membership, leveraged the nascent TV coverage of college football (the schools thought TV would kill the sport!) in the 1950s to exert some control over the situation. That control slipped away in 1984, when the Supreme Court ruled that the NCAA couldn’t keep individual schools or conferences from seeking out their own TV deals. Ironically, what kept the NCAA from being crippled financially was college basketball, because only it could sell the TV rights to the men’s national championship tournament, aka March Madness. Starting to see why there’s no similar tournament for major college football?

Of course, it’s TV money that’s largely driving the latest round of conference shifting we’re seeing go on right now. The drive for the ACC, Big (sorta) 10 and the artist formerly known as the PAC-10 to grow big enough to justify a conference championship game was because of the extra revenue, mostly from TV, they generate. Likewise, WVU doesn’t want to be relegated to a crippled Big East and potentially cut out of the windfall that is the BCS sweepstakes.

As I said earlier, I’m still not sold on the idea of paying college athletes. However, Branch does a good job of showing how profoundly fucked up the current system is. It's not quite this bad . . .

Crack Baby Athletic Association
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PARKEric Cartman,Kyle Broflovski,more...

But it's close.  Maybe the best option is to blow it up and start from scratch. There’s no good reason for sports to enmesh with academics at all. Let the NFL, NBA, and what have you set up youth academies like the soccer clubs in Europe and elsewhere do and go from there. Or reduce the whole thing to the level of Division III, where those involved really are student-athletes.

Yeah, that’s not going to happen anytime soon. So this Saturday I’ll choke down my concerns, put on my bright yellow WVU shirt, and cheer as “we” beat up on LSU on national TV in primetime. Hopefully. ‘cause if we don’t, it’s only a game, right? At least I have the luxury of looking at it that way.

Same as it ever was, indeed.

A Quick Word on Criminal Procedure

It appears that Troy Davis, convicted of murdering an off-duty police officer in Savannah, Georgia in 1991, will be executed on Wednesday night. The Georgia State Board of Pardons and Paroles rejected Davis’s request for clemency this morning, clearing the way for his scheduled death. He’s already exhausted his other legal avenues, barring some kind of last minute Hail Mary.

For more on the background of the Davis case and the issues raised regarding his guilt or innocence, this dairy at Daily Kos hits all the high notes. I don’t know enough about the case to opine one way or the other on the man’s guilt, although I did skim the federal judge’s lengthy opinion after an unprecedented procedural remand by the Supreme Court a couple of years ago and found the case much less clear than either side portrays it. Given my opposition to the death penalty in all situations, whether Davis is guilty or not is not an issue to me with regards to whether he should be killed.

But I wanted to chime in on one facet of the discussion, particularly as raised by comments to the New York Time article I linked to above. The article makes multiple references to Davis’s failure to prove his innocence, to which many folks in the comments respond with shock and horror. As summed up by one person:

Am I reading this correctly? The goober judge who refused to grant a new trial said that the defense had failed 'to prove the defendant's innocence?' What law school did he go to? In Georgia defendants have to prove their innocence?

Not to stick up for any particular "goober judge," but, yes, in Georgia and the rest of the United States, defendants have to prove their innocence if they have already been convicted by a jury.

Our system, for better or worse, reveres trial court fact finding, particularly jury verdicts. I’ve written before about how deferential appellate courts are to verdicts in criminal cases. That deference continues all through the process. It simply is not enough for a defendant to poke holes in the prosecution’s case years down the road. It’s not enough to show that a new trial based on the evidence as it stands now would result in a different outcome. You must prove that you are innocent, a staggeringly high burden to meet without some sort of forensic breakthrough to hang your hat on. It may be a shitty system (I’m inclined to think so), but it’s the one we’ve got and it’s no use harping on isolated high-profile cases like Davis’s when the problem lies in the bigger picture, not it’s peculiar brush strokes.

None of that has any bearing on the ultimate truth of whether Davis murdered that officer decades ago, of course. But, as I’ve written before, courts aren’t designed to be places to learn the truth. They’re about justice which, sometimes, doesn’t wind up being all that just.