The Recency of Primaries

It's been a weird year for West Virginia politics.

It all began when Robert C. Byrd, our long-serving senior Senator/fiddler laureate, assumed room temperature last June.  Almost immediately, as seems to always happen in these situations, there were questions about whether then Governor Joe Manchin could appoint Byrd's replacement (who many figured would be Joe himself) or whether a special election was needed.  After a lot of bickering, Joe appointed a placeholder in Byrd's seat and set a special election.

Manchin won that election.  Thus, in November of last year, he resigned as Governor.  Since West Virginia doesn't have a lieutenant governor or similar position, Earl Ray Tomblin, the then State Senate President, stepped in as acting governor.

Again, almost immediately, a brouhaha erupted about how long Tomblin could serve as governor and whether another special election was needed.  Various state groups and political organizations called for a special election, per the state constitution.  Tomblin argued that, although such an election was required, state election statutes allowed it to be put off until 2012, the next regularly scheduled general election. 

The dispute went to the Supreme Court of Appeals, which held (correctly, IMHO) that Tomblin was wrong.  A special election would be required, sooner rather than later, per the Constitution.  However, the statutory provisions regarding how the candidates were chosen, which provide for nominations by convention, were upheld.  So, the court concluded:

This procedure appears to indicate that candidates for governor who are to be
voted on in the new or special election shall be nominated by a convention, as opposed to a primary election, to be called under the rules of the political party executive committees of the State. The procedure established in the second paragraph of W. Va. Code § 3-10-2 regarding the holding of a new or special election to fill the vacancy in the office of governor is within the legislative prerogative and does not violate the State Constitution. Having found the procedure constitutional, it would be improper of this Court to second-guess the wisdom of this procedure, or to otherwise “legislate” a procedure more to our liking. We observe that the Legislature has just begun its general session. The Legislature may amend the procedure for providing for a new or special election if it deems it appropriate to do so . . .

You can guess what's come next, right? Now comes the wrangling about whether we should go with the conventions or change the law and have primaries. Thus, one of my Facebook friends, who has consistently called for voters to be involved since Byrd shuffled off the mortal coil, today Tweeted:

Committeewoman Calls for Primary Election, Electing our representatives is the foundation of our Republic. http://ht.ly/3Ljvj

But I don't think that's quite right.

Lemme clarify.  Praising someone for proposing primaries versus conventions is right.  Regardless of how poorly utilized the polls are or how little enthusiasm the populace has for the process, open elections are better than pols making deals in the proverbial smoke-filled rooms.

But political primaries, indeed even the choosing of legislators by the voters, are simply not a "foundation of our Republic."

The original Constitution, as enacted in 1789, is a famously anti-democratic document.  Of the three branches of the federal government, only one-half of one of them is directly tied to the people being governed, the House of Representatives.  The Senate was originally chosen by state legislatures. The President is elected by members of the Electoral College, which filters popular votes through a federalist prism that sometimes distorts popular will.  And, of course, the courts are appointed for life, specifically to insulate them from shifting political winds.  On top of all that, of course, is that the class of people who could actually vote in 1789 was a sliver of the whole population.

None of that was an accident.  The Founders did not trust popular democracy all that much.  The design of the federal government was supposed to dampen the sometimes unpredictable spirits of the masses.  Whatever popular fervor could grip the House, the Senate stood ready to slow things down and let the fires die out.  The Constitution, in its original form, was an elitist document.

Things have changed significantly since 1789, of course.  For one thing, the pool of potential voters expanded as the right to vote was grated to blacks and freed slaves (15th Amendment), women (19th Amendment), and anyone over 18 years of age (26th Amendment).  Here, in the 21st century, every adult citizen can vote, aside from those subject to some specific prohibition (like felons, in some states).  The pool of voters now is deeper than the Founders would have ever imagined.

The other big change since 1789 has been the development of more ways for those voters to directly impact the government.  Federally, the big change was the provision for the direct election of senators by the voters (17th Amendment).  That change was part of a broader part of Progressive Era reforms that also brought about the initiative/referendum/recall process.  Those have allowed direct voter amending of state law by bypassing state legislatures, oftentimes with bad results.

Another one of the Progressive Era reforms was the establishment of political primaries.  Technically, candidates today are chosen at conventions, but in reality the results are a foregone conclusion based on earlier primary votes.  It was not always so.  In the beginning, it doesn't look like there was much structure to how parties chose their presidential candidates.  The convention setup appeared in 1832.  The first presidential primary, in Oregon, didn't appear until 1910. 



As I said above, open primaries are good things.  Voters should have a say in who the parties choose to be their candidates for election.  But that sentiment is relatively new, not just in the history of of the world generally, but in the United States.  By definition, it can't be a "foundation of our Republic."  But that's OK.  Sometimes you need to add to the foundation to make the structure stronger.

What Appeals Are (and Aren't)

I realize that my daily life involves a fairly specific niche of law.  Criminal defense law is specialized enough, on the federal level even more so.  Add to that the complexities and mysteries of appellate work and it's no wonder that the ins and outs of the process only really interest a few legal geeks (of which, I admit, I'm one).

Still, I wish the broader culture - movies, TV, and the like, in particular - would make a little bit of effort to figure out how things work.  I'm sure one of us geeks would be willing to explain it.  My biggest beef is that most people think appeals are just "do overs" of a trial.  That's not the case.

This came up for me most recently in The Trials of Darryl Hunt, a 2006 documentary.  Hunt is a black man who was charged with raping and killing a white woman in Winston-Salem, North Carolina in the mid 1980s.  He always maintained his innocence. Despite evidence that could be labeled "sketchy," at best, he was convicted, twice, of first-degree murder by all-white juries.  After nearly 20 years of battling, a wild goose chase DNA database search uncovered the real killer, who promptly confessed.

As you might expect, Hunt's case bounced up and down the court system for years until he was finally exonerated.  The film makes great drama out of a couple of periods of tense waiting amongst Hunt's lawyers and supporters while an appellate court considered the case.  With one exception (the appeal that vacated his first conviction), the relief they sought never came.  But the filmmakers never really explain what issues were raised on appeal and how they might effect the ultimate outcome of the case.  As a result, when the appeals are unsuccessful, viewers are left with the impression that the mean ol' appellate court just wouldn't do justice for Darryl.

That impression comes about because most people don't understand that appellate courts in our system aren't designed to resolve factual disputes, for the most part.  In general, appellate courts in common law countries are required to give great deference to factual findings made by a trial court or a jury.  Defendants can challenge the sufficiency of the evidence supporting their conviction on appeal, but it's a long shot, because appellate courts “assume that the jury resolved any conflicting evidence in the prosecution's favor.” United States v. Jeffers, 570 F.3d 557, 565 (4th Cir.2009).  Two recent cases discussed over at The Volokh Conspiracy show just how bad it has to get for a defendant to prevail on a factual issue.

Ruiz v. State, from a midlevel Florida appellate court, is a garden variety search case under the Fourth Amendment (and Fourteenth, since it's in state court).  Ruiz ran into some cops on the street and they eventually searched his home.  At the suppression hearing, the cops testified that Ruiz consented to the search.  Ruiz testified that he did not give any consent.  The trial court found the cops to be credible and found that consent had been given.

On appeal, the reviewing court was not as sure about the cops' story:

Cases like this one call into question the fairness of some trial court proceedings. On the pages of the record, the story told by the police is unbelievable—an anonymous informant gives incriminating information; police surveillance uncovers no criminal conduct; the defendant is 'nonchalantly' and 'casually' approached by the police on the street; the defendant cooperatively leads the police back to his apartment to obtain his identification and invites the police inside, where a detective sees contraband in plain view, a fact certainly known to the defendant when he issued the invitation; after his arrest, the defendant tells the police about all the hidden drugs in the apartment.

So the court says the cops are full of shit and the defendant wins, right?  Not so much:

Yet, as an appellate court, we must defer to the express finding of credibility made by the trial court. We were not there. We did not see the witnesses testify. If believed, the detectives’ testimony supports the court’s ruling. This case demonstrates the importance of an independent judiciary. This case involves the search of a person’s home, but were the factors bearing on the voluntariness of the consent scrutinized 'with special care?' Without an unbiased and objective evaluation of testimony, judges devolve into rubber stamps for law enforcement. The judge may have punctiliously performed the duties of his office in this case, but, when considering the large number of 'consent' cases that have come before us, the finding of 'consent' in so many curious circumstances is a cause for concern.

So what does it take for an appellate court to ditch a lower court's factual findings?

United States v. Prokupek involved a traffic stop that lead to a search and the discovery of drugs.  Cops set up fake signs advertising a drug checkpoint up the road.  The defendant exited the highway after the signs and then turned onto the country road at the end of the ramp.  He was pulled over.  At the time, the cop told the defendant that:

The reason you got pulled over is because when you exited the interstate you didn’t signal—you didn’t signal your exit [inaudible]. You signaled your turn, but you didn’t signal—exit—signal when you were getting on the exit.

That was recorded on the microphone that was part of the cop's dashboard video camera.  If it works like the ones in West Virginia cop cars, it activated automatically when the cop turned on his lights to pull the driver over.

At the suppression hearing, however, the cop's story changed.  He testified that the driver signalled the exit, but not the turn onto the country road.  When pressed, the cop admitted that he did not even see the driver when he exited the highway.  In spite of the discrepancy, the trial court credited the cop's testimony and found probable cause to support the traffic stop.

On appeal this time, the defendant wins.  The Eighth Circuit, after noting that determinations of witness credibility "can virtually never be clear error," it was in this case:

The district court’s factual finding that 'Prokupek failed to signal his turn before turning from the exit ramp on to the county road' is supported only by the court’s determination that Trooper Estwick’s testimony at the suppression hearing to that effect was credible. Because Trooper Estwick’s testimony at the hearing is so clearly and affirmatively contradicted by his own statement at the time of the events, in the absence of any explanation for this contradiction that is supported by the record, we conclude that Trooper Estwick’s after-the-fact testimony at the suppression hearing is 'implausible on its face,' Anderson, 470 U.S. at 575, and we are left with the 'firm and definite conviction that a mistake has been made,' United States v. Pickar, 616 F.3d 821, 827 (8th Cir. 2010) (quoting United States v. Hines, 387 F.3d 690, 694 (8th Cir. 2004)). We therefore hold that the district court’s finding that Prokupek failed to signal the turn on to the county road is clearly erroneous.

Sadly, the second case reminds me of a story I saw long ago on one of the TV news magazine shows (20/20, IIRC), about a teenager charged with murder.  The best piece of evidence against the boy was his confession, on video tape, to police.  Due to police procedure at the time, the entirety of the interactions between the cops and the boy were filmed.  When viewed in its entirety, the video showed that the boy's confession had been coerced and was not reliable.  The jury acquitted him.

What was the lesson learned by that law enforcement agency due to that case?  If you think it was that it needed to better train and supervise its officers, you're wrong (and naive).  No, the problem wasn't that the cops coerced a teenage boy into falsely confessing to a murder - the problem was that they recorded it!  The agency changed its policy and stopped recording interrogations.  And given the ongoing dispute about whether cops can be taped by the public (see here for an example), I don't see a boom in the number of cases resolved like this any time soon.

Getting back to Darryl Hunt, his case was all about the facts.  There were legal issues lurking around, but no blockbusters.  The bottom line was it was a whodunit.  On appeal, the courts reviewing the conviction were largely bound by the jury's conclusions about who was telling the truth and who wasn't.  The jury's conclusion wasn't objectively wrong until some kind of unimpeachable contrary evidence popped up - the DNA match to someone else.  So Hunt's chances of success on appeal were somewhere between slim and none.

Nonetheless, the filmmakers pin a great deal of hope on those appeals.  Which I understand.  I've spent plenty of times on pins and needles while the Fourth Circuit decided one of my cases.  But I know, in the back of my mind, what the odds really are and never get too caught up in the hope of success in fact-bound cases.  Some explanation, from either the attorneys involved in the case or some outside expert, about what appeals are about and what they aren't about would have helped viewers grasp complete what was going on.  But it might have bogged down the drama of the film a bit.

The bottom line is that, with very few exceptions, appellate courts are only concerned with legal errors.  Factual errors, unless truly egregious, just aren't on their radar.  It doesn't need to be that way - civil law countries in Europe and elsewhere have appellate courts that do some factual review.  But that's the way it is here.

Lessons From History, a Dime at a Time

One of the most interesting Supreme Court cases of this term is Schwarzenegger v. Entertainment Merchants Association.  Argued last November, the case is a challenge to a California law that would ban the sale of "violent" video games to minors (it was enjoined immediately after enacted so it hasn't actually gone into effect yet).  Those challenging the law make a good case that this is just another in a long line of situations where the populace freaked out about youth culture and tried to trample the First Amendment as a result.

One such example was the scare over comic books, particularly in the 1950s.  Several discussions of the case after oral argument mentioned a book, The Ten-Cent Plague: The Great Comic Book Scare and How It Changed America, by David Hadju, which I went out and got.  As it happened, I didn't start reading the book until just before the recent shooting in Tuscon and the resulting public discussion.  Maybe it's just a matter of timing, or perhaps I'm reading too much into things, but several things struck me in common between the two situations.

First, was how intent the critics of the speech at issue were to link them to The Problem against which they crusaded.  The main guy when it came to comic books was Frederic Wertham, a psychiatrist who published a 1954 screed against the industry, Seduction of the Innocent.  Wertham's main claim was that kids growing up reading comic books were turning were turning into juvenile delinquents. 

To dramatize the situation, he used several notorious cases of kids committing crimes as anecdotal evidence.  The only problem was that he never produced evidence that those kids actually read comic books, let alone the "bad" ones subject to the most public scorn.  As with the discussion after Tuscon, direct causation wasn't important, only finding some support for our solution to The Problem.

The second thing that struck me about the comic book debate was how easily each side lapsed into the kind of hateful rhetoric that's been the topic of conversation since Tuscon.  Given the times, the epithets involved Nazis and fascists (before WW II) or communists (afterwards) and, in a foreshadowing of the Glen Beck world, sometimes both.  Both sides did it.  The anti-comic side argued that the immorality inculcated via the illustrated stories made kids ripe for attraction to communist ideals.  Wertham famously testified that, compared to comic books, Hitler was an amateur.  Pro-comic writers, on the other hand, noted that it really was the communists who did things like ban books (and the Nazis burn them, of course), regardless of the fact that most anti-comic moralists were coming from a right-wing Christian viewpoint.  It's a good example how nothing's really new in public debate.

Finally, the interesting thing about the downfall of comics in the 1950s is that it did not really come as the result of legal action.  Oh, sure, there were laws on the books in several states and cities banning the sale of either particular comics or all of them in general.  They would likely run afoul of the First Amendment, but none apparently got run through the courts because the comic industry imploded upon itself.

The cause of the implosion?  Television.  Specifically, televised Congressional hearings, first into juvenile delinquency as a subset of crime in general and then specifically on comic books.  The hearings were big deals, mostly because there was so little on TV at the time.  The anointed defender of the comics, publisher Williams Gaines (responsible for Mad, Tales from the Crypt, and Weird Science, among others), was savaged during the hearing, even though he was on the right side.  As a result of the hearings, public sentiment shifted so forcefully and completely that, after a failed experiment at self censorship, the comic industry shrivelled up.

The lesson of that final point, I think, is that the coercive power of Government went it comes to speech is a lot broader than legislative enactment.  Politicians using the "bully pulpit" to press an issue can do a lot of damage.  The Congressional hearings actually found no link between comic books and delinquency, but by the time those findings were released it didn't matter.  In the public eye, comics were evil and that was that.

I've always been one to draw hard lines between real censorship - laws preventing something from being published - and other forms of speech-related coercion.  Certainly, the public is free to hold whatever opinion they want about a particular kind of entertainment.  If there's no market for it, it will dry up.  But we should be wary of politicians, or their bored spouses, who enter the debate with all the weight they possess.  Truth doesn't matter much in politics, and that can have quite a ripple effect once the cameras are off and we focus on the next version of The Problem.

Go to the Mirror, Boy

I'm certainly not going to argue that fiction always serves as some sort of deep comment on society.  Sometimes you just want to tell a good story.  Lord knows, that's all I aspire to at this point!  But other times, great fiction really does have the ability to hold a mirror up to the world and say, "holy shit, look how fucked up we are."

I've come late to the epic that is The Wire.  I didn't have HBO when it started and only got around to it when they all showed up on Netflix.  I'm through season four and it's a brilliant piece of TV, although perhaps not as orgasmic as its reputation would have it (granted, I have a soft spot in my heart for its spiritual predecessor, Homicide: Life on the Street that might color my opinion).

Above all, The Wire is gritty and realistic.  The pathetic game of cops and drug dealers around which the series spirals rings very true to my ears.  I can only assume that the equally pathetic excuses of politics and education that the show explores are equally on the nose.  It's rivetting, addictive, and deep, but not exactly joyous and fun.

Like Homicide, The Wire uses its setting of Baltimore as an additional character.  I suppose it should surprise nobody that the powers that be in Charm City might not be fond of how the city comes off:

Asked to comment on the show during last week’s Amplify Baltimore event, [Baltimore Police Commissioner Frederick H.] Bealefeld called The Wire a 'smear on this city that will take decades to overcome,' saying, 'You know what Miami gets in their crime show? They get detectives that look like models, and they drive around in sports cars. And you know what New York gets? They get these incredibly tough prosecutors, competent cops that solve the most crazy, complicated cases.' Yet on The Wire, Bealefeld says, 'What Baltimore gets is this reinforced notion that it's a city full of hopelessness, despair and dysfunction. There was very little effort—beyond self-serving—to highlight the great and wonderful things happening here, and to indict the whole population, the criminal justice system, the school system.'

Ironically, that kind of statement from a politician sounds exactly like something one of them would say on The Wire.  Forget the reality of the situation and complain that someone hasn't signed on to give your city the Chamber of Commerce treatment.  Besides, if we're going to judge Miami by its TV cops, I'm surprised anybody ever gets caught for anything down there,  if Dexter is any kind of accurate.

Natrually, series creator David Simon has fired back:

Others might reasonably argue, however that it is not sixty hours of The Wire that will require decades for our city to overcome, as the commissioner claims. A more lingering problem might be two decades of bad performance by a police agency more obsessed with statistics than substance, with appeasing political leadership rather than seriously addressing the roots of city violence, with shifting blame rather than taking responsibility.  That is the police department we depicted in The Wire, give or take our depiction of some conscientious officers and supervisors. And that is an accurate depiction of the Baltimore department for much of the last twenty years, from the late 1980s, when cocaine hit and the drug corners blossomed, until recently, when Mr. O'Malley became governor and the pressure to clear those corners without regard to legality and to make crime disappear on paper finally gave way to some normalcy and, perhaps, some police work. Commissioner Bealefeld, who was present for much of that history, knows it as well as anyone associated with The Wire.

Free advice to the chief - don't pick fights with a critically aclaimed writer.  You will not get the last word.

Free advice to everybody else - if somebody holds a mirror up to your world and it looks fucked up, don't blame the guy with the mirror.  Do something about what you see.

There Goes the Neighborhood

On its face, this is one of the stories (via) that seems so silly and petty that it hardly needs lengthy discussion.

Apparently, the University of British Columbia owns some fairly swanky condos - purchase prices run into seven figures. It is planning to build a 15-bed hospice facility next to one of those condos. No big deal right? Au contraire:

'We cannot have dying people in our backyard,' said rally organizer Janet Fan, Wednesday. 'It’s a cultural taboo to us and we cannot be close to so many dying people. It’s like you open your door and step into a graveyard.'

* * *

Residents wrote a letter Jan. 9 to Jan Fialkowski, executive director of the University Neighborhood Association, (UNA) saying they feel a hospice is the equivalent of a funeral home or crematorium.

''Death' is the Yin and 'Live' is the Yang,' it read. 'If the Yin and Yang are near to each other, ‘Death’ will bring bad luck, meaning sickness and even death . . . The ghosts of the dead will invade and harass the living.'

The letter said Asians believe that living next to 'death' would 'lead to failure of business, the loss of money, the break of marriage and family, and the healthy growing up of children will be affected.'

Of course, that's a silly superstition and no more grounded in reality than fear of the number 13.  The fact that it had deep roots in Asia and is prevalent in an immigrant community makes for interesting anthropological or sociological analysis, but doesn't improve its veracity. It's also incredibly selfish when applied to a hospice - talk about people who can't fight back.  Besides, does anybody honestly believe nobody has died in or around that high rise?

That being said, one statement from a resident resonated a little bit with me:

Qing Lin, who bought a Promontory apartment for $900,000 almost a year ago, said she and her seven year old daughter will have nightmares if the hospice goes ahead.

'We believe that people dying outside will bring us bad luck,' she added. 'I’m very angry and upset. If I had known it was going to be a hospice, I wouldn’t buy it for half the price.'

Assume for a moment that she is sincere.  Should her honest statement that she wouldn't pay the same price for her home if a hospice moved in next door because of the ghost problem completely out to lunch, legally thinking?  Not as much as you might think.

One of the gold standard cases for property classes in law school is Strambovsky v. Ackley, decided by a mid-level New York appellate court in 1991.  The case involved a home buyer who sought to nullify the contract of sale and get the down payment back from the seller.  Why?

Plaintiff alleges that Ackley and her real estate broker, defendant Ellis Realty, made material misrepresentations of the property in that they failed to disclose that Ackley believed that the house was haunted by poltergeists. Moreover, Ackley shared this belief with her community and the general public through articles published in Reader's Digest (1977) and the local newspaper (1982). In November 1989, approximately two months after the parties entered into the contract of sale but subsequent to the scheduled October 2, 1989 closing, the house was included in a five-house walking tour and again described in the local newspaper as being haunted.

That's from the dissent, but it's a more straightforward recitation than the majority's too-cute-by-half opinion.  So, you've got someone who contracts to buy a house (closing was pending) when he discovers the prior owner promoted it as being haunted.  Buyer wants out.  What did the court do?

The trial court did what most folks would consider common sense and, essentially (I'm paraphrasing a Bloom County here), told his bailiff to kick these two nuts in the ass.  But that decision was reversed on appeal.  Why?

Whether the source of the spectral apparitions seen by defendant seller are parapsychic or psychogenic, having reported their presence in both a national publication (Readers' Digest) and the local press (in 1977 and 1982, respectively), defendant is estopped to deny their existence and, as a matter of law, the house is haunted.

In other words, you can't go around promoting your house as haunted and then hide behind reality when the spectral shit hits the paranormal fan.  The major difference between that case and the UBC condos is that the buyer in Strambovsy doesn't appear to believe in ghosts, but is worried about knock-on resale value, while Qing Lin and her fellow tower dwellers appear to believe.  Regardless, it goes to show that when it comes to ghosts, the law isn't quite as clear as you might expect.

Oh So Proud

I'm currently reading The Ten-Cent Plague: The Great Comic Book Scare and How It Changed America, by David Hadju.  I just got to the point in the 1950s where the scene shifted from blinkered moralists wagging their fingers to law makers and others actually trying to do something about The Problem.  When it comes to legal prohibitions, Hadju talks about Detroit, Indianapolis, and Los Angeles.  But when the time comes for a good ol' fashioned book burning, where does he go?

Spencer, West Virginia.

*sigh*  Doesn't exactly make me want to belt out a rousing chorus of "Country Roads."

UPDATE: Further on, Hadju explains that the Spencer bonfire was hardly an isolated incident and recites some scathing condemnation from none other than the Daily Mail. So that counts for something, I guess.

No No No - Just Stop, Please.

I know it's not a new thing to try and appropriate historical luminaries into arguments, but this is really beyond the pale (via).

If Dr. Martin Luther King Jr. were alive today, would he understand why the United States is at war?

Jeh C. Johnson, the Defense Department's general counsel, posed that question at today's Pentagon commemoration of King's legacy.

Johnson's answer, of course, is that MLK would be hunky dory with it, as counter intuitive as that might be (and contrary to what MLK actually said).  But if that wasn't bad enough, he tries to reason that:

if Dr. King were alive today, he would recognize that we live in a complicated world, and that our nation's military should not and cannot lay down its arms and leave the American people vulnerable to terrorist attack . . .

Note that he's saying this about a man who was perceived by many in the United States at the time as the period equivalent of a terrorist - a Communist - including by the Government! All that FBI surveillance of him wasn't so the Feds could make sure the historical record was complete, you know.

Look, we get it. We're bogged down in an unpopular and probably unwinnable war that has only been ratcheted up over the past couple of years (Nobel Peace Prizes notwithstanding). You need some PR boosts. Just do it on your own, OK? Don't rob the dead of their integrity while demonstrating that you have none of your own.

The Perils of Pardons

One the few vestiges of royal authority that modern governors and the president have available to them is the power to grant clemency.  That is, reduce the effects of or eliminate altogether a criminal conviction incurred by a particular person.  The federal grant of power is in Article 2, Section 1 of the Constitution (the president "shall have Power to grant Reprieves and Pardons for Offenses against the United States") and is unlimited.  State practice is a little more varied, with a spectrum of setups from complete executive authority to some combination of executive authority and regulatory oversight.

It's a power that is not exercised all that often.  Perhaps that's because it is so fundamentally at odds with the rest of our democratic system (it's inclusion in the new Constitution was not a given among the Founders).  In it's purest form the power to pardon is subject to no review.  No checks, no balances.  No separation of powers.  Executives can, in the sweep of a pen, undue entire classes of punishments, as Illinois governor George Ryan did in 2003 when he commuted all the sentences of those on the state's death row to life in prison.  Such authority begs the question of whether it can ever be wielded corruptly.

Of course, the real reason the pardon power isn't exercised more often is that it almost no political upside.  Sure, some folks will complain at the lack of meaningful pardons or commutations, but they rarely get voiced outside the legal field.

The downside, of course, is huge.  Remember the guy who went on a rampage in Seattle and killed four police officers?  It quickly came to light that he had been pardoned by Mike Huckabee when he was governor of Arkansas.  More recently, the governor of Massachusetts was under fire when a paroled violent offender killed a police officer the day after Christmas. 

For a politician with aims at future elections (i.e., all of them that aren't on their death beds), the cost/benefit analysis is pretty easy to do.  It doesn't matter if you made hundreds of well reasoned pardons or commutations during your term.  One mistake will hound you for the rest of your career.

Which leads to years like 2010, where those pardons that were given out were either too late to mean much to the receiver or posthumous.  Obama's few pardons for last year, for instance, were designed not to make waves:

The average time between the initial offense and the pardon was more than 28 years. Six of the nine people Obama pardoned didn't commit an offense that qualified for a prison sentence. The maximum sentence among the nine was two years. One of the nine was pardoned for defacing coins in 1964, an offense for which he was punished with probation and a $20 fine.

The only ones to tangibly benefit from Obama's 2010 pardons were the damn Thanksgiving turkeys.

In fact, the two biggest pardon stories of last year involved men who had no voice in the debate: Jim Morrison and Billy the Kid.

Morrison, you may recall, was convicted in Florida in 1969 for indecent exposure following a concert in Miami.  Depending on who you talk to, it was either a trumped up charge used as a cudgel in the culture wars or the charge was a complete fabrication.  In any case, Morrison always maintained his innocence and was appealing the verdict when he died in Paris.  In many jurisdiction, that would be enough to vaporize the conviction (as Ken Lay - if you can), but not Florida.  So outgoing Governor Charlie Christ, recently beaten in the race for one of the state's US Senate seats, granted Morrison the pardon.

The Billy the Kid situation is a little more complex.  In 1878, after many years of outlawry, Billy agreed to testify before a New Mexico grand jury in return for amnesty from the territory's governor, Lew Wallace (former Union general and future bestselling author - he wrote Ben Hur), for the murder of a county sheriff.  Brady testified, but slipped away while technically under arrest afterwards.  He was eventually captured, tried for the murder, and sentenced to die.  Another escape followed, this time leading to his death.  Outgoing New Mexico governor Bill Richardson decided not to pardon Billy, not wishing to second guess his predecessor's decision not to honor the agreement (the "escape" after Billy testified may have made killed the deal).

As a history geek, these sorts of posthumous pardon proceedings intrigue me, both because they tend to start interesting debates on the merits and sometimes actually correct a massive historical wrong. But the lawyer in me sees them as a colossal waste of time and effort (Morrison's pardon started circulating in 2007, for instance) that produce little tangible benefit.  Far better to spend that energy on those currently incarcerated, or suffering from the disadvantages of former incarceration, and do something for them. 

But there's too much risk involved to do stuff like that.  So we'll probably stick with pardoning the dead (or not).  And turkeys

As The Smoke Begins to Clear . . .

A few random thoughts about the fallout from Tuscon.

As we proceed through this week, we're learning more and more about the alleged perpetrator of the mass shooting in Tuscon last week, and politicians have already launched into action mode, doing what we always do in the face of The Problem - propose more laws, however ill advised:

Texas Democrat Rep. Rubén Hinojosa said Monday that he is open to joining Pennsylvania Democrat Rep. Robert Brady in support of a bill to curb speech that could be perceived as 'threatening' to public officials.

'The level of discourse is out of control,' Hinojosa said. 'Yes, I would certainly sit down with him and look at the wording and see how we could strengthen it. There’s a need to tone down the rhetoric that occurred here these last few years. In my opinion, I would support legislation, yes.'

Brady told the New York Times on Sunday that he would seek legislation banning certain types of speech in reaction to the weekend shooting in Tucson, Ariz. that left Democrat Rep. Gabrielle Giffords injured and killed six others.

When I saw this, and some other things around the Web, I was going to write an insightful analysis of the First Amendments, threats, and the limits of restrictions on "hate" speech.  But Eugene Volokh beat me to it.  And he's a First Amendment expert, to boot, so just go read his piece.

Meanwhile, over at Reason, Ronald Bailey examines a 1999 study of political assassins (and would be assassins) that suggests that they aren't all that political after all:

Politics apparently plays very little role in most attacks and would-be attacks against public officials. The researchers found that 'fewer than a tenth of subjects who acted alone were involved with militant or radical organizations at the time of their attack or near-lethal approach.' Instead, they seek notoriety, revenge for perceived wrongs, death at the hands of law enforcement, to bring attention to a perceived problem, to save the country or the world, to achieve a special relationship with the target, to make money, or to bring about political change. Less than a quarter of the attackers developed escape plans. In fact, more than a third wished or expected to die during their attack.

Although one can dicker about whether trying "to save the country or the world" is a political motivation, it is clear that the motivations of such folks are much more complex than the traditional left/right narratives would lead us to believe.

Speaking of complex, one of the odder bits of Loughner's publicly available statements is his obsession with grammar.  Here's a look at where that might come from.  Some truly weird stuff in the realm of tax protesters and "sovereign" citizens.

Finally, we've heard today from Sarah Palin for the first time since Saturday's attack.  Palin has been criticized for the infamous rifle sight poster of targeted Congressional districts, one of which was Giffords (Giffords objected to the imagery at the time).  I think the rush to connect the rhetoric of Palin and others to the shooting are, at the least, premature.  Nonetheless, Palin does not cover herself in glory, calling the criticism of hers and others on the right "blood libel" and demanding that:

it is time to restore the American precept that each individual is accountable for his actions.

That's pretty rich, coming from someone who blames everybody but herself for her 2008 campaign flame out.  As for "blood libel," that's the worst choice of words in public since Bush talked about a "crusade" in the wake of 9/11.  I'll give Palin the benefit of the doubt and assume she's just ignorant about the history of blood libel.  I'd guess that Giffords, who is Jewish, fully grasps it.

On Jumping to Conclusions

When I started feeding the silence earlier this month, I said that I wasn't going to talk about politics all that much, as I was burned out on the never ending "my team versus the other team" dynamic in the country.  Politics, at least my impression of politics, has moved on from the staid debates of the Sunday morning talk shows to being something like a 24-hour version of SportsCenter.  We got a tragically typical example of that over the weekend.

Before the bodies were cold in Tuscon on Saturday, the political angles of the shooting, which left six dead and another dozen wounded, were being calculated.  The left saw the shooting as a political act, tied in with and spurred on by rhetoric during the recent election about "Second Amendment solutions" and other such nonsense, and not without some basis.  Giffords's office windows had been shot out, apparently because she dared to vote in favor of health care reform.  And, of course, she was one of those Congresspeople targeted by Sarah Palin's PAC in an ad utilizing rifle sights to designate targets.  The right denied any connection between rhetoric and action and offered up some clearly bullshit responses, such as that the sights in the Palin ad were "surveyor's crosses", not rifle sights.

Perhaps the best sum up of how these things devolve into left/right affairs it noted in this Salon piece about the alleged shooter's list of favorite books on his MySpace page:

Conservatives pointed to Loughner's citation of "The Communist Manifesto" as proof that he was a leftist maniac and liberals interpreted his enthusiasm for Ayn Rand's "We, the Living" as evidence that he was a right-winger.

Not to toot my own horn, but when talking about the incident with the girlfriend on Saturday, I said that I thought a purely political motivation was unlikely.  There simply isn't a history of mass killings as political act in this country.  When an assassin targets a politician, there usually isn't a great deal of collateral damage.  As the girlfriend pointed out, killing a whole bunch of innocent bystanders - including a 9-year old girl (born on 9/11, no less) - would not do any cause any good.

Based on what we know now, which is still far from everything of course, the alleged shooter looks to be simply nuts.*  Based on his YouTube videos (screen shots helpfully preserved at TalkLeft), he appears to be paranoid and prone to conspiracy theories.  Might the ramblings about "currency" tie into the whole "get us back to the gold standard" argument of some libertarians and other right wingers?  Maybe, but it's hardly a strong tie in.  As John Scalzi puts it:

What little I’ve seen — which is basically what everyone else has seen to this point — doesn’t convince me this is about politics as anyone but Loughner understands it. We may (and probably will) learn more as time goes on. But for the moment, I’m of the opinion that whatever this is about, is about Loughner, rather than the overall state of politics in the United States.

Nevertheless, it looks like the incident might cause folks to focus a bit more on political rhetoric with violent images or overtones.  That's a good thing.  But let's try and talk about the issue without trying to score political points for our side.  Sometimes, you've got to turn off SportsCenter and get beyond the tribalism.  Whether we can do it or not, I have no idea.

* To paraphrase someone, he may be crazy, but he's not stupid.  According to reports, the alleged shooter had asserted his Fifth Amendment right to remain silent, so that may slow down the explanatory process a bit.  He's now in the hands of one of my colleagues from Arizona, who has a heck of a mountain to climb over the coming years.

Are You Watching Closely?

It is almost inevitable when a novel is made into a movie that readers of the original will wail, "but the book was better."  And usually they're right.  It's rare to find a movie adaptation that works better than the source material.

So, here's one.

Readers from the Ranch will remember that I put Christopher Nolan's The Prestige on my list of 10 favorite films of the the 2000s.  As I wrote then, I won't pretend that it's particularly deep or life changing, it's just a really entertaining film.  Given that, it was only a matter of time before I read the novel of the same name upon which it was based.

For those of you who have neither seen the movie or read the book, the heart of both is a escalating feud between a pair of late 19th-century English magicians, Alfred Borden and Rupert Angier.  They have a shared history, dating back to a single event (different in each telling).  The feud consumes them, in unexpected ways.

The novel came out in 1995, written by Christopher Priest.  It won awards, at the time, including the World Fantasy Award, so it's got quite a pedigree of its own.  It also has one thing that the movie completely lacks (or jettisoned, I suppose), which is a modern day frame story that provides the basis for getting into the feud.  Good move by the brothers Nolan, as the modern day stuff adds nothing to the core of the story, adds an additional layer of the supernatural that I found a little off putting, and lead to a wholly underwhelming conclusion.

What's left, then, is the story of the Borden/Angier rivalry, which Priest cleverly lays out via a pair of first person narratives.  Bordern's comes from his notebook, obtained after his death and published by Angier.  Angier's comes from his diary, though I'm having a hard time remembering if it was later published as well.  Regardless, rather than having them parallel themselves chronologically, we get all of Borden's version before all of Angier's.  Although I initially didn't like that idea, in the end I appreciated the distance it provided from the key incidents recounted by the two men.

It goes without saying that if you're making a movie based on dueling sources like that, it had to shift some things around.  What's interesting is that the brothers Nolan take the outline of the feud and the characters involved and tweak them quite a bit so that, while recognizable from the book, they wind up quite different.  Take, for example, the incident that starts the feud.

In the book, it stems from Borden's intentional attempt to "out" Angier as a fraud (then operating in a John Edward sort of fashion).  It has physical consequences, but fairly minor ones.  By contrast, the spark in the movie is the death of Angier's wife during a performance with Borden in what appears to be an accident.  With that change, the feud becomes more real and believable and more ambiguous at the same time.

That sets the movie up to be a darker affair than the book.  The feud in the book tends to rise and fall, lapse into nothing and the spring up again for no good reason.  The movie makes it all more compact and constant.  It also deepens both Borden's and Angier's actions in a way that the book doesn't.  Both men are required to affirmatively "get their hands dirty" as the feud spirals out of control.  It makes for a more riveting narrative.

All of this is not to say that the novel is bad.  Far from it - the meat of it is interesting and detailed in ways the movie can't be and I like Priest's voice.  It's just that, and I agree with this evaluation, the movie is better.  In a way, it reminds me of Dangerous Liaisons (the Stephen Frears one), which also has at its base a two-way conversation between the main characters that can't easily be transferred to the screen.  Maybe it's a situation where the impossibility of doing that frees the filmmakers from the fear of not doing it "right" and lets their creativity reign?

What Censorship Isn't

Mark Twain hasn't gotten this much pub since he wasn't dead.

The Adventures of Huckleberry Finn ranks as one of the top banned books of all time, particularly troubling schools since it is considered one of the seminal works of American literature that (as one of my high school English teachers put it) "literate people should know."  But it's got language issues.  Not just for it's non-standard-English vernacular, either.  It's loaded with the "n-word," over 200 times, as a matter of fact.

So, now, along comes a college professor to save all the school administrators sleepless nights and students uncomfortable pauses while reading allowed - he's producing a version of Huck that scraps "nigger" altogether:

Twain himself defined a 'classic' as 'a book which people praise and don't read.' Rather than see Twain's most important work succumb to that fate, Twain scholar Alan Gribben and NewSouth Books plan to release a version of Huckleberry Finn, in a single volume with The Adventures of Tom Sawyer, that does away with the 'n' word (as well as the 'in' word, "Injun") by replacing it with the word 'slave.'

'This is not an effort to render Tom Sawyer and Huckleberry Finn colorblind,' said Gribben, speaking from his office at Auburn University at Montgomery, where he's spent most of the past 20 years heading the English department. 'Race matters in these books. It's a matter of how you express that in the 21st century.'

Predictably, when something like this makes the news, many folks outraged by the idea run to the ramparts and decry "censorship."  This is nothing of the kind.  True, real, honest-to-your-God censorship is when the power of the state is deployed to suppress something.  That's not happening here.  To the extent that, in a 21st-century world, the decision of a near monopoly corporation to not sell a certain book produces the same result, I'm open to arguing that.  But this is completely different.

For one thing, Gribben's edition will not make all the unsanitized versions of Huck disappear.  It will just compete in the marketplace along with them.  Legally, given that the rumors of the death of Twain's copyrights have not been exaggerated, anybody can print up any version of Huck they like.  There's no coercion.  There's no threat of criminal sanctions for selling or reading the original text.  Simply put, this isn't censorship.

Is it a good idea, otherwise?  I don't particularly think so.  I'm sympathetic to the dilemma Gribben is trying to address, but this seems like a bad solution.  If modern American school kids aren't capable of reading the book and dealing with it as is, there's an easy solution - save it for college classes.  Otherwise, I'm more troubled by the state of our secondary education system than the fate of a particular book.

But assume I'm wrong and Gribben is right - Huck needs a makeover for 21st-Century America.  If that's the case, why doesn't Gribben just go ahead and do it under his own name?  As I mentioned above, there is no copyright issue to worry about.  Title it something like Mark Twain's Huckleberry Finn, by Gribben.

It reminds me of the battle over Terry Gilliam's Brazil, which produced two radically different cuts of the film, Gilliam's and the studio's.  Gilliam went back and forth with studio exec Sid Sheinberg, who wanted a shorter happier film.  His infamous approved "Love Conquers All" edit strips nearly an hour from the film and transforms it from a dark satire in which the happy ending is the main character going insane to a traditional good wins out Hollywood pic.  Along the way, Gilliam wrote to Sheinberg (transcribed from The Battle of Brazil):

As long as my name is on the film, what is done to it is done to me.  There is no way of separating these two entities.  I feel every cut, especially the ones that sever the balls.  And I plead - whether they are done in the name of legitimate and responsible experiments or personal curiosity, if you really wish to make your version of Brazil then put your name on it.  Then you can do what you like.  Sid Sheinberg's Brazil has a nice ring to it.  But, until that time, I shall continue both to decline and also to decline.  Please let me know how much longer must I endure before the bleeding stops.

Similarly, it's not that Gribben's vision for what the text should be is evil.  It's just that it's not Twain's.  Don't pretend otherwise.

The irony, of course, is that Twain's use of "nigger" is neither haphazard nor malicious.  And contrary to Gribben's intention, it will change the nature of the book.  As Russell Baker wrote (ht):

The people whom Huck and Jim encounter on the Mississippi are drunkards, murderers, bullies, swindlers, lynchers, thieves, liars, mows, frauds, child abusers, numbskulls, hypocrites, windbags and traders in human flesh. All are white. The one man of honor in this phantasmagoria is ‘Nigger Jim,’ as Twain called him to emphasize the irony of a society in which the only true gentleman was held beneath contempt.

Judge the Art, Not the Artist

Years ago, my brother and I were talking about music.  Somehow the subject of Mr. Sting (as Zappa called him) came up, leading my brother to explain that he couldn't get into his stuff because Mr. Sting was too much of an asshole.  I found that odd.  Regardless of Mr. Sting's personality, he's written some great tunes.  Maybe Bring on the Night is brilliant because he's a prick, rather than in spite of it?

I try, as best I can, to separate the artist from the art he makes.  For the longest time, that was in recognition of the simple reality that some great creative types are actually horrible people.  More recently, it occurred to me that I wouldn't appreciate people not reading my books or stories just because I'm an atheist.  I was stunned that a large chunk of the respondents in a thread on Absolute Write last year entitled "Would you buy/read a book by an author you don't like?" answered "yes."  One would think that writers would be loathe to suggest that anyone read or not read their stuff based on anything other than the quality of the work.  It seems odd to me.

The grade-A example of such a writer, who came up in that discussion, is Orson Scott Card.  He's written a whole bunch of successful novels, including Hugo winners Ender's Game (good) and Speaker for the Dead (brilliant).  He also writes columns on his web site about politics, some of which are horribly bigoted when it comes to gay rights, among other things.  I would not want to have Card over for dinner.  But that doesn't impact my enjoyment of his earlier work (he's gone downhill since, thankfully).

This issue was front of mind this week because over the weekend the girlfriend and I watched On the Waterfront, Elia Kazan's 1954 Oscar winner.  It's a film with a lot of history in it. 

For example, Marlon Brando's amazing performance, an early example of "method" acting in a Hollywood flick, "changed American movie acting forever," according to Roger Ebert. 

The score was Leonard Bernstein's first (and last, IIRC) dedicated film score and is equally brilliant (and quoted from liberally in LA Confidential, I think). 

But it was also Kazan's first film after he appeared before HUAAC and named names.  As such, he made no bones about the film being his answer to all those detractors who blamed him for turning in friends to McCarthy's witch hunt.  From Ebert's review:

Brando's line finds a dramatic echo in A Life, Kazan's 1988 autobiography, where he writes of his feelings after the film won eight Oscars, including best picture, actor, actress and director: 'I was tasting vengeance that night and enjoying it. On the Waterfront is my own story; every day I worked on that film, I was telling the world where I stood and my critics to go and - - - - themselves.''

As Ebert points out, Kazan's motives when making the picture keep some viewers from just watching the film.  They can't separate the art from the artist.  Which is a shame because, even after more than five decades, On the Waterfront is a powerful, dramatic, and exciting film.  And in the context of the film, Brando's character does the right thing and it extracts a great cost.  You don't, after all, have to agree with Kazan at the end of the day when it comes to his HUAAC testimony.

The scorn can extend beyond the artist himself and arise not from his own work or life but rather than how others picked them up and used them.  One would think the 100th anniversary of Leo Tolstoy's death would have warranted celebrations in Russia.  Not so.  He was celebrated by the communists - even though he wasn't one - and was excommunicated from the powerful Russian Orthodox Church before his death because of it.  They're still holding on to that grudge.

The bottom line is most artists probably have unfortunate opinions or habits, if you dig into their lives deeply enough.  Hold high enough standards for your authors or musicians and you'll likely be able to enjoy only a tiny sliver of the books and music out there.  It's a natural and understandable human reaction to let our disgust of a person taint all that they do.  That doesn't mean we shouldn't push past that initial reaction and push forward.

So What Is Entertainment, Anyway?

There's a scene in The Blues Brothers where Jake & Elwood crisscross the Illinois countryside drumming up folks to come see their big ballroom show.  As Elwood ends one of his numerous run throughs of his pitch, Jake has him add, "that's a lot of entertainment . . . for two dollars."  Nobody ever accused Jake & Elwood of not being entertaining.

But what about George Lucas?

Seems like an odd question, doesn't it?  But in an old blog post that I just read for the first time the other day, John Scalzi argues that Lucas's most beloved child, the Star Wars saga, isn't actually entertainment.  Lucas wasn't interested in actually engaging with an audience, Scalzi says, but instead was wrapped up in the construction of a mythos that he cared about.  If the audience didn't buy in, too bad.  As a result, the further the series went on (although Scalzi seems to regard none of the films too highly) the worse things got as Lucas spent more and more time on the Imperial history lesson and less on, you know, characterization, plot, and other things that make for "entertainment."

That argument strikes me as odd, because it seems to conflate "entertainment" with "good."  Scalzi makes a pretty good case for why Lucas lost the plot along the way, but that merely makes the later films bad entertainment, not something other than entertainment.  It's just so counter intuitive that someone could see a series of mass market, highly successful, and well loved films as being anything other than entertainment.  We're not talking about a novel that Lucas wrote in secret and never showed anyone, but somehow leaked out after his death.  We're talking commercial grade pop culture here.  What is that if not entertainment?  It certainly meets the dictionary definition:

1: the act of entertaining

2a archaic : maintenance, provision
b obsolete : employment

3a : amusement or diversion provided especially by performers

b : something diverting or engaging: as (1) : a public performance (2) : a usually light comic or adventure novel

It all reminds me of the huge dust up Roger Ebert caused last year when he claimed that video games weren't "art."  In the discsussions of that issue, it became clear that when most people use to the word "art," what they really meant was "art that is good."  Bad art was defined away as something not really artistic at all.  It's the same phenomenon I've seen play out over and over again in Net discussions about progressive rock, where someone (usually genre newbies - I went through it, too), conflate "prog" with "good" and non-prog with "bad."

But that can't be right.  Surely whether something is "art" or "entertainment" or "prog" is separate from whether it's good or bad (i.e., whether you like it or not).  After all, as Theodore Sturgeon famously pointed out, 90% of everything is crap. 

Moreover, any producer of entertainments can have multiple motives in making a movie or writing a novel.  Perhaps they care so much about the mythos and world building that they want maximum audience engagement, i.e "entertainment", in order to forge that bond.  Whether such duplicity is "successful," whatever that may mean, would vary from work to work.

Again, I'm not denying the end point of what Scalzi says about Lucas's movies.  He disappeared up his own ass in the prequels (others have pointed out how trying to explain how The Force worked was a really bad idea).  The same danger is present outside the realm of sci-fi & fantasy, after all.  Look at bio pics.  They usually get so bogged down in covering all the historical bases of their subject - aka, building the mythos - that the result is dull, boring, and without any real narrative focus.  It doesn't make them something other than entertainment, tho'.  Just means they suck. 

IMHO, of course.

How Civil Liberties Die

It's not a difficult story to comprehend.  It should be easy enough to stop, if we cared enough to stop it.  But we never do.

First, there is the claim of some great evil that needs to be confronted.  It could be drugs.  It could be terrorism.  It could be smut ("think of the children!").  Doesn't matter.  Something is wrong in the world and we, as a society, need to do something about it.  It becomes The Problem.

Second, objections are made.  By the usual types.  You know, those damn ACLU liberal pinkos and their libertarian fellow travelers.  They want the drug dealers to win.  Or the terrorists.  Or the smut peddlers (or worse, they are the smut peddlers).  Regardless, they're not sufficiently seriously in thrall to The Problem.  Just ignore them.

Third, we declare War on The Problem.  The battle is joined.  Some bad guys are dealt with.  In the melee, however, a lot of pretty decent people get swept up, too.  Some folks look back and say, "hey, wait a minute, this War doesn't seem to be helping The Problem."  To which the powers that be just smile and say, "trust us."  And another part of the Fourth Amendment, or whichever, passes on.

We're in step three locally when it comes to drunk driving, specifically when it comes to drunk driving checkpoints.  Those are the barricades cops set up on local roadways on the weekends to nap drunk drivers.  Somewhat amazingly - or maybe not - the Supreme Court has suggested that the Fourth Amendment is not troubled by such roadblocks.  True, when they are done simply as crime fighting tools, that's not allowed.  But if the authorities can come up with some plausible non-criminal reason to doing it, it's OK.

Not that it's a problem if the cops did find a bag of weed or a gun in your car while they tried to smell alcohol on your breath.

OK, so, we'll take it as read that they're not unconstitutional.  But do they work?  At least enough to justify the restraint on liberty?  It doesn't look that way.  According to yesterday's Daily Mail, a study done by an admittedly involved interest group shows that for every 1000 drivers stopped, cops make three drunk driving arrests.

Think about that for a minute.  That's not even one percent of people who get stopped.  It's three percent of that one percent.  If you got three right answers on a 1000-question test you'd be . . . well, you'd be dead, I imagine.  Regardless, that's not what I would call a rousing success.

Oh, but that's not a problem.  Every law enforcement source asked about the study had basically the same answer: "Trust us.  We know it works."  It's sort of like flat Earthers or creationists, really, sidestepping reality.  And, of course, there's this sentiment:

'But I think the checkpoints are more effective than what the numbers show,' [Kanawha County Sheriff's Lt. Crosier] said.

* * *

'And anything we can do to take an impaired driver off the road should be considered effective,' Crosier said.

That sentiment usually shows up when authority figures talk about The Problem.  It sounds nice and soothes some fears, but it makes no sense.  We could eliminate drunk driving completely by getting rid of cars and forcing everybody to take public transit.  Suggest that and the cries of "Nazi!" and "socialist!" that rang out during the health care debate last year will seem calm by comparison.  But if can do anything to take one drunk off the road it's worth it, right?

The problem is not The Problem.  The problem is how we antrhopomorphize The Problem and turn it into some fairy tale bad guy who can only be vanquished by our righteous actions.  It's not about righteousness, it's about results.  Nobody is in favor of drunk driving.  The question is how is the most effective way to deal with it?  And how can we deal with it in a way that doesn't destroy the liberty of everybody else? 

In the end, there has to be a cost/benefit analysis, as no solution, even the most authoritarian one, is likely to eliminate The Problem altogether.  Drunk drivers will always be with us.  So, too, will terrorists and smut peddlers.  The bottom line is whether we're willing to sell out our fundamental freedoms in order to flail blindly at The Problem.  Unfortunately, recent history shows that we are.

The Kidney Connection

Sadly, it's big news in this country when a governor (or president, for that matter) actually exercises his authority to pardon someone or commute their sentence.  Add in an odd condition for getting that commutation and it's a hard story to avoid.

I speak, of course, about Mississippi governor Haley Barbour's decision to suspend (rather than commute) the sentences of two sisters, Jamie and Gladys Scott, who received life sentences in 1994 for their parts in a robbery that netted $11.  The catch - Gladys must give her kidney to Jamie, who is currently in need of thrice-weekly dialysis (at great expense to the taxpayers of Mississippi, apparently).

The odd condition was proposed by Gladys.  Nonetheless, the condition raises some troubling issues:

"If the sister belongs in prison, then she should be allowed to donate and return to prison, and if she doesn't belong in prison, then she should have her sentence commuted whether or not she is a donor," said Michael Shapiro, chief of organ transplantation at Hackensack University Medical Center in New Jersey and chair of the United Network for Organ Sharing's ethics committee.

Shapiro also points out a potential side effect complication that occurred to me over the weekend - that if organ donation is seen as a ticket out of prison, more inmates will propose it as a means to get out.  Given the horrendous conditions in some overcrowded prisons in this country, that amounts to subtle coercion to "consent" to a medical procedure an inmate would not otherwise agree to.  Or, as Jason Mazzone concludes over at Balkinization:

Yet an organ transfer between siblings, engineered by the state to save it some money, should raise greater scrutiny not less. For if, as the Supreme Court has told us, bargains between criminal defendants and the state are to be treated with reference to principles of contract law, a deal involving kidneys and siblings raises a basic question of voluntariness: it is hard to say no when it's your sister's life on the line.

On top of that, there's another legal issue I've seen lurking but not yet discussed.  According to this report, the sisters have the same attorney representing each of them.  Generally, criminal codefendants having the same lawyer is not a good idea.  Codefendants may have entirely similar goals when it comes to representation.  Nonetheless, each is entitled to independent counsel who has her best interests at heart, even if those interests run contrary to the other defendant.  To put it more starkly, if one defendant wants to roll on the other, having the same attorney represent both presents all kinds of problems.  I'm not saying anything untoward has taken place here - it is most likely a situation where everybody's interests dovetail - but it did set my Spidey senses a tingling.

At the end of the day there isn't much of a chance the issues that this case raise will get any kind of hearing.  Everyone involved is OK with it, after all, and Gladys will not go back to prison if her kidney is not a match for her sister's.  And, in a world where justice often goes wanting, the release of two women from overly harsh sentences is definitely a good thing.  It would be better, however, if their release was based just on that - a recognition of this being a situation where justice needed to be done.  Instead it's baled up with all sorts of issues that are going to lay in wait and explode in some poor schmuck's face down the road.

What I'm Writing

When I shut down the Ranch, one of the reasons I gave was that I wanted to spend some of the time I spent on blogging working on my fiction. I wish I could say I had a great breakthrough when it comes to that stuff in the past year, but nothing's popped up as of yet. But I have been, as the kids might say, "working it."

As for novels, I've currently got three in some level of prep, each arisen from National Novel Writing Month contests. I didn't bite off NaNoWriMo in 2010, as K and I spent a week in St. John during November, which made deadlines and writing targets kind of meaningless.

• 2007's project, My Year of Living Magically, bombed out before the month was out, but I've sort of recast it in my head in a way that I think will really work. So, I'll have to go back and work that one up. 
• 2008's project, Plausible Reliability, sits largely where it did in 2009, unfortunately. It is badly in need of an edit, which my father has been good enough to provide, tho' I haven't had a chance to dig into it. 
• 2009's project, The Water Road, is proving to be the most difficult, but I'm winding towards a finish of the first draft. It will need massive revisions. I only realized the other day that it's the first big work I've done set in an entirely different world from our own. That leads to a certain amount of continuity issues because I am, in the parlance of the craft, "making it up as I go along."

Things are a little further along when it comes to short stories. I've got several now that are out in the world, submitted to publishers to be shot down. A quick run down:

• "Jury Duty" - A man's technological backwardsness throws a monkey wrench into the gears of the criminal justice system. This story actually won me an honorable mention in the 2010 West Virginia Writer's contest (in the "emerging writers" category). 
• "Fine Print" - How much would you pay for a cheap supply of boundless energy? Better read the fine print.
• "Last Man On Mars" - Space exploration as PR exercise goes awry. 
• "The Last Ereph" - A thief in a fantasy world finds religion. After a fashion. I've also repurposed a few old bits from the Ranch and thrown them in the mix, too.

Wish me luck!

A Blog By Any Other Name

Those of you who know me are probably thinking to yourself, "hey, wait a sec - don't you already have a blog?  What's this one all about?"

That's true, of course.  The the other blog ran for six years before I shuddered it at the beginning of 2010.  At the time, I felt it had run its course and wanted to focus on some other stuff.  I didn't realize how much I'd missed it.  There's only so much popping of and pontificating one can do in the confines of Facebook.

Fine, but why a whole new blog?  Well, for one thing, restarting the Ranch after a post titled "Los Endos" just seems silly. It means "the end," after all.

For another, I wanted to change the focus just a little bit. To be sure, I'll still go off about "the important things in life - law, politics, music, racing, soccer, etc." But I intend for posts to be a little more informed, thoughtful, and in depth than in the old days. No more, "here's a link to a news story + snarky comment."  Also, I'm going to try awful hard to stay away from politics, at least where it doesn't bump up against legal stuff.  I'm just burned out on the "my side uber alles" tribalism that passes for political discourse these days.

I also wanted to shift to a more personal focus. Not to descend into a "what I had for breakfast today" blog, but talk about what I'm writing, reading, listening to, etc. I promise, I won't be bearing my soul in an ugly way.

That being said, what's the name mean? It popped into my head while listening to the (I think) second album by Baltimore proggers Dark Aether Project, which is called Feed the Silence. It's a good turn a phrase and it made me think about one of the reasons I shut down the Ranch - because it didn't seem like anyone was actually reading it. So, if anything, I can say I'll be feeding the silence, even if nothing ever bounces back.

Dramatis Personae

To the extent any of this stuff matters, I wanted to put all of my basic information in one place. The short version is that I'm a professional lawyer, a hope-to-be professional writer, an amateur auto racer, and a very amateur musician.

And I look like this:

As you can see, I'm a bit of a soccer fan. More of that later.

My bio: I was born and raised in and around Charleston, West Virginia. I spend seven years in Morgantown, getting an undergrad degree in history (with philosophy and poli-sci minors) and my law degree. I became a member of the WV Bar in 1999. Out of law school I spent a year in the Beckley area working for what was then Appalachian Legal Services (now, after a series of mergers, WV Legal Aid), doing domestic law. It was not my thing.

After about a year of that I got a chance to jump from civil to criminal work and moved to the Kanawha County public defender office. It was there I started to do appellate work, although state appellate practice is a bit weird in WV, what without a mid-level appeals court and all. In 2002, I shifted from state work to the federal side, joining the Federal Public Defender office in Charleston as the Legal Research and Writing Specialist. My business cards say "Appellate Counsel," which is a pretty accurate description. They haven't kicked me out, yet.

I say all that not to tout my qualifications to do or say anything in particular, but so folks have some idea of where I'm coming from. As if I know myself.

I mostly write about myself (it is my blog, after all), but I'll occasionally mention some other folks.  Most important of those is The Wife The Girlfriend, aka "K", who is kind enough to put up with my nonsense.  This is she:

Before I met K, about five years ago, I was not much of an animal person. I've come around, and so sometimes I'll mention one or all of the members of K's menagerie.

There's Maia, the One-Eyed Wonder Pup:

You can read the story of how Maia came to be Maia here.


Since I shut down the last blog, Maia has been joined by an older little sister, Uzume:

Uzu is living proof of the sales power of cute.  We went to the local pet store to get something for Maia.  As on most weekends, they had a local shelter or two set up with critters for adoption.  Uzume was desperate for attention.  Once K picked her up and Uzu laid her tiny little head down on her chest, there was no question we would go home with her.


Maia and Uzume share their home with two bemused cats, Kali:

. . . and McNally:

As I said, when I'm not lawyering or hanging with K and her critters I spend some of my free time writing.  I'll write some more about that in a separate post.


I also spend some time making, as opposed to just consuming, music.  In group fashion I play clarinet in the Kanawha Valley Community Band.  As a solo artist (ha!), I've built up a fun little PC-based recording setup in my spare bedroom:

For the gear geeks out there, that's (from left to right) a Zoom R16 digital recorder, Korg M50 workstation with a Korg Kaosilator on top, a Nord Rack 2X and Alesis Micron synths sitting under an M-Audio Axiom 61 MIDI controller, and the old Gateway laptop.  For now, my tunes are posted over at ACID Planet under the name Infinity Ranch (a holdover from the old blog days).


My other big hobby is autocross, a very grassroots level form of motorsports that is, as my boss once put it, sort of like a downhill ski race, except with a car and in a parking lot.  Here's some good video evidence of what it is.  I run with the Southern WV Region of the Sports Car Club of America for the most part:

That picture, however, was taken at the Steel Cities Region's annual autocross held in conjunction with the Pittsburgh Vintage Grand Prix.

That's pretty much it for me.  The basics, anyway.  Onward!

Welcome Back My Friends . . .

. . . to the show that (apparently) never ends . . .