April 30, 2013

Hunter Becomes the Hunted

When we hear a news story about a person being freed from prison years after being wrongfully convicted of a grisly murder, often there’s a perverse punch line to the whole sordid affair – the prosecutor responsible for the case, responsible for a ruined life and an innocent person spending years in a cage, is now a judge. Not only does the miscarriage of justice not impede a prosecutor’s career, in most cases it seems like a boon.

Which is what makes what happened in Texas a couple of weeks ago so amazing and important.

On August 16, 1986, Christine Morton was brutally murdered in her home near Austin, Texas. As often happens in such cases, Christine’s husband, Michael, was treated as a potential suspect from the beginning. He was arrested in September and convicted in 1987 and sentenced to life in prison. Morton spent 25 years in a cage before DNA testing confirmed what he had been saying all along – that he was innocent. He was formally acquitted in 2011. For a detailed, fascinating, and chilling account of Morton’s saga, see here and here.

Ken Anderson, who was the lead prosecutor in Morton’s case, is now a judge, naturally. He’s also, now, under arrest:
Ken Anderson was in the courtroom as Judge Louis Sturns issued his ruling and turned himself in afterward. Sturns said there was sufficient evidence that Anderson was guilty on all three charges brought against him for his handling of the case against Michael Morton: criminal contempt of court, tampering with evidence and tampering with government records.

‘Mr. Anderson consciously chose to conceal the availability of the exculpatory evidence so he could convict Mr. Morton for murder,’ Sturns said. ‘This court cannot think of a more intrinsically harmful act than a prosecutor's intentional choice to hide evidence so as to convict a defendant facing a murder charge and a life sentence.’
At issue in Anderson’s case are two pieces of evidence collected by police that pointed to someone other than Morton as the killer. One was a report of a suspicious van in the area at the time of the killing, while the other was a report that Morton’s young son, who was at home when his mother was murdered, that a “monster” hurt his mother, not his father. As Judge Sturns concluded in his findings of fact, this was:
evidence that showed Mr. Morton did not murder his wife.
In addition, Judge Sturns concluded that Anderson knew about this evidence and failed to turn it over to the defense or follow up on potential leads:
[t]he sheriff’s department and Mr. Anderson quickly concluded Mr. Morton was responsible for killing his wife, and so curtailed further investigation of the murder.
Anderson’s failure to disclose evidence forms the basis of the criminal charges against him.

Will they stick? It will be interesting to see. One problem that’s already been raised is the statute of limitations. The original trial judge is dead, which may harm Anderson’s ability to defend himself. And, of course, the entire point of statutes of limitations is to prevent someone needing to defend themselves years after an event when memories have faded, physical evidence has disappeared, and witnesses have died or disappeared. Regardless, it doesn’t seem like much of a stretch to argue that Anderson’s conduct was ongoing so long as Morton was still in prison, which might squelch any statute of limitation problem.

Even if Anderson escapes conviction, the very fact that he’s being dragged into court for prior malfeasance is a step in the right direction. If he doesn’t wind up in jail, he will, at some point in the future, have to face the voters (judges in Texas are elected). Then the ball will be in their court – will they reward a man who sent an innocent man to a cage for a quarter-century with another term? If they do, it will say all too much about how this system got to the place where it could make such mistakes in the first place.

April 26, 2013

Friday Review Special: Yessongs & Tales From Topographic Oceans

An occasional series in which I revisit classic albums that, like me, turn 40 years old this year.

Yes had a busy year in 1972. They followed up the success of Fragile with Close to the Edge, which many regard as their masterpiece. Following that, they set off on tour. And, oh yeah, they had to hire a new drummer, when Bill Bruford ran off to follow Bob Fripp’s pied piping into King Crimson. Enter Alan White, formerly of the Plastic Ono Band, who had only a limited time to get up to speed on the band’s back catalog.

He’s not gone anywhere since, which is really something, when you consider the years of lineup change tumult that lay ahead for the band.

The band’s first release in 1973 showed the fruits of White’s efforts (mostly – Bruford appears on two tracks). Yessongs isn’t just a live album, it’s a massive live album (three LPs in its original gatefoldy glory – one of the few LPs I owned in my youth) that, perhaps more than any other of the era, captured what the band was all about at the time. Hell, you get every bit of Close to the Edge, along with just about every notable track from Fragile (“South Side of the Sky” excepted, sadly) and The Yes Album. The performances are almost all more muscular and rock a bit harder than the studio versions, without being completely different. If you knew nothing of Yes before now, Yessongs would be the perfect introduction to the band’s early glory years.

As for what they produced in the studio in 1973, not so much.

Upon departing for pastures Crim, Bruford explained that, after Close to the Edge, there wasn’t much for the band to do, in his mind, aside from Close to the Edge Part 2. In a lot of respects, he wasn’t wrong. Close to the Edge featured the band’s first true epic, with the title track stretching across the entirety of side two.

Tales from Topographic Oceans took that epic quality and turned it up to eleventy. Instead of one LP there were two, and instead of one epic there were four, one covering each album side. There were no singles or crass attempts to garner radio play. To top things off, the four tracks were inspired, not only by a book on an Eastern religious leader, they were inspired by a footnote on page 83!

If the band deserves an A for effort, the final grade for the finished product drops to about a C+. There’s an awful lot of excellent music in Tales. I’m particularly fond of most of “The Revealing Science of God - Dance of the Dawn,” but it’s probably a few minutes longer than it needs to be. In fact, the same can be said for every track. Had Tales come out in the CD era it might have made a killer single long disc. As is, it’s an effective time capsule of prog’s commercial heyday.

Tales became sort of a Rorschach test for progressive rock. To fans, it was everything that makes the genre great – it was ambitious, unconcerned with commercial potential, and provided extended interludes of purely musical bliss. To detractors, it was everything that make the genre an abomination – it was pretentious, overblown, and lacking in warmth or compelling musical ideas. It’s far from Yes’s best work, in my opinion, but it’s certainly their most audacious.

Yessongs, by Yes

1. Opening (Excerpt from "Firebird Suite") (3:45)
2. Siberian Khatru (8:50)
3. Heart of the Sunrise (11:26)
4. Perpetual Change (14:08)
5. And You and I (9:55)
6. Mood For a Day (2:52)
7. Excerpts from "The Six Wives of Henry VIII" (6:35)
8. Roundabout (8:33)
9. I've Seen All Good People (7:00)
10. Long Distance Runaround / The Fish (13:45)
11. Close to the Edge (18:41)
12. Yours is No Disgrace (14:21)
13. Starship Trooper (9:25)

Tales From Topographic Oceans, by Yes

1. The Revealing Science Of God - Dance Of The Dawn (20:27)
2. The Remembering - High The Memory (20:38)
3. The Ancient - Giants Under The Sun (18:34)
4. Ritual - Nous Sommes Du Soleil (21:35)

Both released 1973

Jon Anderson (vocals)
Steve Howe (guitar and vocals)
Chris Squire (bass and vocals)
Rick Wakeman (keyboards)
Alan White (drums)

with Bill Bruford (drums) on a couple of tracks on Yessongs

April 25, 2013

The First Amendment Takes It On the Chin – Twice

The First Amendment rarely fares well when it bumps up against public school personnel. Whether it’s the Free Speech Clause or one of the religion clauses, teachers and administrators have real trouble finding the line that separates constitutional from unconstitutional conduct. Sadly, two recent events in West Virginia have provided vivid demonstrations of the problem.

The first, even more sadly, emerged from my alma mater, George Washington High School in Charleston.

Principal George Aulenbacher allowed an abstinence-only “speaker” named Pam Stenzel to come to the school. The assembly, at which attendance was mandatory, was paid for:
by a conservative religious organization called ‘Believe in West Virginia’ and advertised with fliers that proclaimed ‘God’s plan for sexual purity.’
It doesn't take a First Amendment scholar to know that arguments for “God’s plan” about anything doesn’t have any place in a public school. If there’s a basis for abstinence only education in schools (I’d argue there isn’t, but that’s for another day), it needs to be one divorced from anyone’s concerns about gods, or the lack thereof, and based on objective, verifiable facts.

Even worse, Stenzel’s shtick is abusive and confrontational:
Stenzel has a long history of using inflammatory rhetoric to convince young people that they will face dire consequences for becoming sexually active. At GW’s assembly, Stenzel allegedly told students that ‘if you take birth control, your mother probably hates you’ and ‘I could look at any one of you in the eyes right now and tell if you’re going to be promiscuous.’
This piece at Salon has more background on Stenzel, including her reliance on bogus statistics and facts. Her routine includes some other gems:
While talking about the importance of only ever having sex with one person for your entire life, she says, ‘If you have sex outside of that context you will pay. No one has ever had more than one partner and not paid.’
Thankfully, a GW senior, Katelyn Campbell, objected to the whole assembly, refused to attend, and contacted the ACLU. But to truly take the cake for this awful affair, Aulenbacher threatened her for speaking out:
The high school senior alleges that Aulenbacher threatened to call Wellesley College, where Campbell has been accepted to study in the fall, after she spoke to the press about her objections to the assembly. According to Campbell, her principal said, ‘How would you feel if I called your college and told them what bad character you have and what a backstabber you are?’
The fine folks at Wellesley College, as expected, were not not fazed by Aulbacher’s clumsily bizarre attempt at retaliation. After botching the Establishment Clause premise, Aulbacher then went ahead and violated the spirit, if not the letter, of the Free Speech Clause by trying to punish Campbell for publicly objecting. At least that attempt fizzled and died.

So, while my alma mater’s principal was failing the Establishment Clause (with a Free Speech chaser) in Charleston, a teacher in Logan was flunking the Free Speech Clause.

A middle school student wore a NRA T-shirt to school. This upset at least one member of the school staff:
White said that Marcum had been wearing the shirt without causing any problems from homeroom at the beginning of the school day through fifth period, and was confronted by one of the school’s teachers while getting his lunch. When Jared refused to remove or reverse the shirt, the teacher began to raise his voice, and it caught the attention of students eating their lunch, White said.

Marcum was eventually arrested and taken away by police after refusing to remove the shirt. White said that when police told the teen they were going to arrest him, he stuck his hands out and said, ‘Fine.’
Now, as the Supreme Court has said:
It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years.
And that was in 1969. I agree with Eugene Volokh that a policy banning T-shirts like the one this student wore is most likely unconstitutional. It doesn’t even really seem like a close call. Thus, there was no basis for the teacher to ask the student to remove the shirt, much less for him to be arrested (?!) for doing so. It was fine for the teacher to approach the kid and ask about his shirt – free speech is a two-way street, after all – but any escalation seems to be the teacher’s fault, not the kid’s. One would expect a teacher to have better control of his/her emotions than a middle school kid, for fuck’s sake.

I don’t envy teachers or school administrators. Riding herd over hundreds of kids everyday raises problems on a regular basis that I’m sure I could never dream of. And, sadly, First Amendment jurisprudence in some areas isn’t as clear as it should be. But there are some pretty damned clear lines that can’t be crossed, with don’t bring people into a public school to push their version of God’s will and kids have a right to express themselves being two of them.

That either of these situations flared up, much less became nationally-recognized news items, is evidence that somebody needs to stay after class and do some remedial work.

April 23, 2013

Paging Doctor Eno

When I started exploring electronic music a few years ago it was only a matter of time before I discovered the particular ghetto of the genre called “ambient.” In a lot of ways it shares some of the characteristics of progressive rock – it’s often epic, lacks anything “catchy” upon which a listener might cling, and has a somewhat sullied reputation. I’m not sure whether this recent development will help or hurt that reputation.

Brian Eno is generally credited with giving a name to, if not outright starting, the ambient genre back in the 1970. The idea was to create music that designed to work as part of a particular environment, to be, as it were, aural wallpaper. For example, the first album to explicitly label itself “ambient,” Eno’s 1978 Ambient 1: Music for Airports was inspired by his unpleasant experience with the atmosphere of a German airport. In the liner notes, he explained:
Ambient Music must be able to accommodate many levels of listening attention without enforcing one in particular; it must be as ignorable as it is interesting.

* * *

Ambient Music is intended to induce calm and a space to think.
Shift scene, then, to Brighton, England, in 2010, where Eno has installed a music/art piece called “77 Million Paintings.” Enter surgeon Robin Turner:
His mother-in-law also went, said Turner, and ‘she is normally very fidgety, you can’t pin her down; the phrase we use is that she goes at a million miles an hour with her hair on fire. She went in and was there for two hours, which is unheard of. It was proof that this has a calming influence on people’.
The experience prompted Turner to get in touch with Eno, the result being a “hospital quiet room” designed by Eno for a new hospital in Hove. Eno jumped at the chance:
It was the first time, he said, that he had been able to practise his belief that music can be made that deliberately affects mood. ‘I’ve met many women who have had children listening to one of my records so I knew there was this dimension and here, in the last couple of days I’ve met patients and staff who have said, ‘I really like that room, it makes a big difference’.
Turner and staff are going to collect hard biometric data to see if it backs up positive anecdotal reports.

It’s long been said that “[m]usic has charms to soothe a savage breast,” but I’m still not sure it’s the best PR for a genre derided as boring and coldly intellectual that it has the power to calm elderly ADHD patients. One thing’s for certain – if you really want to be sedated, call Doctor Eno, not The Ramones.

April 17, 2013

Justice Is Bigger Than Vengeance

I once had a conversation with a friend of mine about the death penalty. We were both generally on the same side of the issue – that is, we were both against it – but she admitted it was difficult for her to imagine not wanting someone who killed one of her loved ones to suffer and pay the ultimate price. I argued that was why we don’t let crime victims set policy. Vengeance is a legitimate emotion, but it’s not a sound basis upon which to setup a criminal justice system that handles thousands of cases a year. She conceded that I had a valid point.

Thane Rosenbaum, a law prof (and novelist) at Fordham, disagrees. In fact, in an article last month for The Chronicle of Higher Education, he argued that not only should vengeance have a seat in the criminal policy bus, it should get to drive. Maybe he’s onto something, since he apparently has the magical ability to read the minds of others:
But the distinction between justice and vengeance is false. A call for justice is always a cry for revenge. . . . No matter what they say, victims aren’t choosing justice over vengeance; they are merely capitulating to a cultural taboo, knowing that the protocol in polite society is to repudiate revenge.
I’m always wary of someone who claims that something “always” anything and has the gall to tell others what they’re actually thinking (which is double odd since he’s setting himself up as their advocate). What does Rosenbaum say to families of murder victims who actively argue against the death penalty, even in cases involving their loved ones? Are they deluded? And if they are, doesn’t that argue for keeping victims at a greater distance from the criminal justice process?

On the basis of his sweeping generalization, Rosenbaum argues that “there is no justice unless victims feel avenged.” The problem is that Rosenbaum views vengeance as some physical thing that can be objectively measured and, therefore, we can easily determine when such avenging has been accomplished. He analogizes it to business transactions, but those do involve easily identifiable debts and repayments (more troublingly, he also analogizes to “ledgers we keep with . . . intimate partners to be balanced,” which is just sad).

Life, in Rosenbaum’s eyes, is like a movie in which revenge is not only an acceptable goal, but a laudable one:
We watch revenge films without embarrassment because on some primal level we know that just deserts are required in the moral universe, that those who commit crimes must be punished according to their blameworthiness, and that wrongs must ultimately be righted. It’s not our lust for violence that explains why we applaud payback, but our absolute need to live in a world that promotes fairness, law and order, and social peace.
Yes, because the revenge films of which he speaks, such as Braveheart and Gladiator, are held up as shining examples of the complexity of human relations. Except, of course they aren’t. We like revenge flicks because they present an easily identified wrong, committed by an obvious bad guy, who eventually gets his due. They’re a parody of real life, not accurate reflections.

That simplistic, black/white view of the universe, comes through even more clearly in a comment Rosenbaum made on NPR while discussing this issue:
We run away from this idea that the death penalty is something that we should abhor. But remember, when someone takes an eye, or in this case a life, they’ve made a decision to take a life. And there’s - one wonders why there’s - that there should be a discount on what payback should look like.
It’s certainly a simpler way to look at punishment to say, “you take a life, your forfeit your life,” but to do so would reject centuries of Western law that actually gives a shit about a defendant’s state of mind when he acts. Consider the following scenarios:
  • Killer shoots Victim in the head as part of a contract killing
  • Killer shoots Victim in the head in the heat of passion after finding Victim in bed with Killer’s wife
  • Killer shoots Victim in the head by accident, perhaps while “practicing” Wild West tactics
  • Killer shoots Victim in the head because he correctly thinks that Victim has a weapon and is going to kill him
  • Killer shoots Victim in the head because he incorrectly thinks that Victim has a weapon and is going to kill him
  • Killer runs over Victim with his car, while driving drunk
  • Killer runs over Victim with his car, while completely sober
  • Killer runs over Victim with his car, while swerving trying to avoid a small child running out into the road
I could go on all day. Most of us would think the proper punishment would have some relation to the culpability of the Killer and would vary from case to case. However, by Rosenbaum’s calculus, the punishment for the Killer in all those scenarios is the same – off with his head – presumably even in the true self-defense situation. After all, there’s a dead Victim and an identified Killer. The only way out of that is to somehow argue that a justified killing doesn’t lead to proper demands for vengeance, but I expect Rosenbaum will find plenty of loved ones of people killed in “self-defense” who think it was anything but.

Rosenbaum’s entire argument revolves around this idea of vengeance as something that can be located with mathematical certainty. For example, he complains about the impact of plea bargaining:
So we tolerate a legal system where over 95 percent of all cases are resolved with a negotiated plea—bargained down from what the wrongdoer rightfully deserved. That means that convicted criminals are rarely asked to truly repay their debt to society. Even worse, this math-phobic system tragically discounts the debt owed to the victim, who is grossly shortchanged.
I’m not sure this shows what Rosenbaum thinks it does, however. Firstly, that 95% figure covers all offenses, a large proportion of which have no victim at all. In fact, in my practice the case with an actual victim is vanishingly rare. So what percentage of cases with victims plead out? Secondly, why were those cases resolved by plea agreement? Were the original charges overly harsh given the evidence? Was it a matter of securing a conviction to a lesser offense or letting a guilty defendant walk free after an unsuccessful trial? Or does Rosenbaum think we just do away with the actual guilt phase of proceedings and focus entirely on what the victims want? Once again, a victim may want the perpetrator excessively punished, regardless of what evidence that prosecution could actually muster in court.

Rosenbaum’s attempt to drag us into some international consensus on this issue isn’t persuasive, either:
Other nations around the world allow for revenge—whether in the form of individual relief or under color of law.
Except that most western nations, the ones we think of our peers in the whole Enlightenment experiment, have almost completely rejected his easiest sale for vengeance, the death penalty. So if, in fact, lots of other nations don’t allow for revenge, which ones do?
And other nations, including Cambodia and Iran, better incorporate vengeance within their legal systems. (Iran’s and Cambodia’s human-rights records are a different matter entirely.)
Ah, all right, I see. Let us not look to European models, which protect a shared interest in human rights, but instead to nations with troubling human rights records, as if the two are not related.

In the end, Rosenbaum’s argument is like vengeance itself – unpredictable and hard to grasp fully. He writes repeatedly about the system’s failure to include victims more fully in the process, but doesn’t offer any ideas as to how they should be better integrated. Hell, he may be right – as I said, so few of the cases I deal with have victims in the first place. But giving ourselves over to base vengeance, and upending our entire criminal justice system in the process, doesn’t seem the right way to go about it.

Vengeance is a personal thing. What sates the desire for revenge in one person won’t do it in another, even when the wrongs committed against them were the same. Justice, by contrast, is a societal value, one that is important not because it gratifies particular individuals but because it keeps society functioning in the best possible way. We shouldn’t forget about vengeance when we think of justice, but neither should we let it be the prime mover.

April 12, 2013

Friday Review Special: Selling England by the Pound

An occasional series in which I revisit classic albums that, like me, turn 40 years old this year.
'Can you tell me where my country lies?’
Said the unifaun to his true love’s eyes
Thus begins one of the most aggressively English of the great prog records. Selling England by the Pound isn’t just Genesis’s apex during the Gabriel years, it served as a template for an awful lot of neo and symphonic prog to come in the decades ahead.

It’s perhaps appropriate that the album begins with only Peter Gabriel’s voice, as he was increasingly becoming what the larger world thought of when “Genesis” came to mind (if it ever did). It’s easy to imagine why, since he was not only the voice of the band but the look as well:

It’s easy to draw attention when you’re wearing fox’s head and your wife’s red dress up on a stage where everybody else is sitting down noodling.

But it’s also a little misleading, as Selling England by the Pound has some of the band’s most memorable instrumental passages and moments during which Gabriel is noticeably absent. The highlight, and perhaps most influential single passage, is the instrumental mid-section of “Firth of Fifth.” While it does feature Gabriel on flute, that’s merely prelude to the up-tempo Tony Banks synth solo and, most notably, Steve Hackett’s soaring guitar solo, the paradigm of solos to come based on space, restraint, and musicality rather than fleet fingers and surgical shredding. Then there’s the back half of “Cinema Show,” which not only jettisons Gabriel but Hackett as well, reducing things to a Banks/Rutherford/Collins three-way (which would lead we all know where down the road). Hell, even ol’ Phil himself debuts as a lead vocalist on the palette cleansing “More Fool Me.”

Having said that, the album would lose a lot of its aggressive Englishness without Gabriel’s delivery and the lyrics themselves. The album has a very pastoral vibe, aside from the epic tale of a London gang turf war, “The Battle of Epping Forest.” That track divides fans – some hate it, some love it. I’m in the latter group, although the band apparently never much cared for it, feeling it was too stuffed with wordplay to be effective. Maybe, but it’s certainly fun to sit down and work through.

I’ve lived with Selling England By the Pound in a lot of formats. My brother, Sluggo,* had it on a good ole’ fashioned LP, from which he made me a cassette tape many many years ago. I’ve blown through at least two, if not three, versions on CD. Over all those years, it’s remained one of my favorite musical experiences ever. In a real sense, the “hey, this kicks ass!” reaction I had way back when set me on the road to prog geekdom.

It’s aged bloody well over 40 years and spawned too many imitators. A masterpiece, a milestone, and essential listening.

* Not his real name, relax. Our parents weren’t cruel.

Selling England By the Pound, by Genesis
Released 1973


1. Dancing With The Moonlit Knight (8:01)
2. I Know What I Like (In Your Wardrobe) (4:06)
3. Firth Of Fifth (9:34)
4. More Fool Me (3:09)
5. The Battle Of Epping Forest(11:43)
6. After The Ordeal (4:12)
7. The Cinema Show (11:06)
8. Aisle Of Plenty (1:31)

Tony Banks (keyboards, 12 String guitar )
Phil Collins (drums, percussion, backing vocals, lead vocals)
Peter Gabriel (lead vocals, percussion, flute, oboe)
Steve Hackett (electric guitar, nylon guitar)
Mike Rutherford (bass guitar, 12 string guitar, electric Sitar)

April 11, 2013

Keeping Copyright Meaningful

Over the weekend, Scott Turow had a column in the New York Times about the “death of the American author.” Although it begins with a jab at the Supreme Court for its recent decision strengthening the first sale doctrine (link), his broader point is that various forces – illegal downloaders and pirates, in particular – are weakening the real value of copyright. In baser terms, the situation is making it harder and harder for authors to get paid.

I’m sympathetic to Turow’s larger point. I dream, someday, of actually getting paid for writing fiction, so I’d like to think the legal apparatus to ensure those (equally fictional, at this point) payments will roll in. But I’m not sure the targets of Turow’s ire are quite correct. He points to various search engines that, when you search for an author or book title, will pull up numerous places to illegally download said titles. That’s troubling, but what else do you expect search engines to do?

The bigger problem is that there’s a market out there for people who want to access books (or other copyrighted materials) without paying for them. Putting aside cheap bastards who will always take a free version of something rather than paying for it (and who will always find a way to do it), why are people willing to go through the hassle (not to mention the legal exposure) or downloading something illegally from the Web rather than pay for it?

One reason might be that when the general public hears the word “copyright” they don’t think of the authors or other creative types whose income is tied to the protection of their intellectual property. More likely, they think of huge faceless corporations who wield copyright as a sword, not to protect the creative types, but to boost their own bottom line. Think of the old Napster lawsuits by the RIAA, bringing down the full force of the law and the Lord God on teenagers and college students who downloaded a few songs.

Or, consider the tale of Jayne’s hat.

Even in the world of sci-fi fandom, Firefly – a show that only produced 13 episodes, only nine of which were ever broadcast – has developed a fierce, loyal following.* That following has never particularly liked Fox, the network that originally aired it and, in the eyes of most, handled it in a way to ensure its early death. That the show is even talked about today, 11 years after broadcast, has nothing to do with Fox’s bungling and everything to do with the cast and crew that produced the show.

In one episode, Jayne – a gun thug with a heart of tin – gets a package from his mom. It’s not the most interesting package in the episode (two other character are gifted with what appears to be a dead body), but it’s a nice character moment. Jayne’s mom made him a hat:

Nice hat, yes? Many fans of the show thought so. As a result, after the show went off the air and the film sequel Serenity came and went, various crafty people made some and sold them on the Net (for a very detailed explanation of all this, see here). Everything’s good, right?

Except that Fox, after years of doing nothing, has allowed a company to license the hats and sell them. As a result, the DIYers have gotten nasty letters from Fox lawyers:
Turns out in the last few weeks many of them have received cease-and-desist letters or have simply been banned from Etsy for producing DIY Jayne Hats. This communal endeavor, it seems, is coming to a close, and fans of the show are asking themselves why. Isn't the whole point of the Jayne hat that it be homemade? Doesn't it mean anything that the hats are often auctioned off at charity events? After 10 years of nothing, isn't it unfair for Fox to suddenly force lifelong fans to cease production of something they love?
It’s all perfectly legal, of course:
And the answer, for now, is that Fox owns the license and that's that. The fans who are mad that the hat was licensed for mass production are the ones who are closest to hitting the nail on the head. The fact is, Fox now has a legal obligation to its shareholders -- they have to chase down anyone producing and selling a licensed product without permission. Ripple Junction holds the license, the fans do not.
But isn’t it kind of a dick move? Here’s the megacorp that killed the show in the first place, showing up a decade after the fact to capitalize not on its own success, but on the cult that thrived in spite of Fox’s neglect.

For most people, most fans, most consumers of entertainment products, that’s the face of modern copyright law. It’s not about authors, musicians, or artists trying to get paid for their work. It’s about corporations like Fox cracking down on fans and Disney lobbying Congress to extend copyright terms every time Mickey Mouse nears the border of the public domain. Is it any wonder that they see finger wagging about illegal downloads as more of the same?

One of the things I learned in laws school – I assume Turow did, too – is that sometimes the best advice a lawyer can give his client is to not fully pursue their legal rights. Sometimes there are other concerns – public relations, long-term planning, just plain doing good – that weigh against treating every problem like a hammer that needs to be relentlessly pounded.

Maybe Fox and the other corporate copyright holders should play a longer game and worry about what they’re actions do to the public’s perception of copyright. Ultimately, that may do more good than inveighing mightily against overseas pirates and the potential customers who frequent them.

* That’s because it’s fucking awesome!

April 9, 2013

When A Crime Becomes A Crime

In a perfect world, the line between innocent behavior and a criminal act would be bright, clear, and flashing like a neon sign on the Vegas strip. Alas, this isn’t a perfect world and sometimes that line gets very blurry, if it doesn’t evaporate completely. Two cases in the news recently show just how hard the line can be to find and how easy it is to cross it.

The first, and more notorious, is the case of the “cannibal cop” in New York, Gilberto Valle. As this story points out :
In July, Valle had another chat with a different online friend—a man called ‘Moody Blues.’ Their conversation flowed very well. Moody Blues, a male nurse who lives in England, pretended to be a connoisseur of cannibalism: He said he'd eaten lots of women and offered up his favorite recipes. Valle responded that he'd been working on a document called ‘Abducting and Cooking Kimberly: A Blueprint,’ and promised to send it over. That Word file had a photo of his real-life friend from college, Kimberly Sauer, and a list of supplies that he would need to carry out a crime. It also gave a set of made-up details about the victim: a fictitious last name, date of birth, alma mater, and hometown.

Then he and Moody Blues agreed to cook and eat Kimberly together over Labor Day, at Valle’s secluded place ‘up in the mountains,’ a spot accessible via ‘lots of winding roads.’ Valle lived in an apartment building in Queens.
There’s more nauseating detail in the story, but the gist of it is that, for all his talk, Vale never actually abducted, killed, and consumed anybody. Nonetheless, he was charged with conspiracy to commit such a grisly murder. As another story explains:
The bulk of the evidence regarding Gilberto Valle's plot consisted of online communication between the ‘cannibal cop’ and fellow cannibal-role-playing kinksters at a social media site called DarkFetish.net. The defense team had argued that while Mr. Valle had gruesome fantasies about roasting women on spits, they were just that: fantasies.

Prosecutors examined 24 online conversations Mr. Valle had and determined that three appeared to be real. The defense team argued to the jury that the 21 conversations the FBI considered ‘fantasy’ were no different in substance than the three they singled out as ‘real.’ Either way, Mr. Valle had a right to free speech, they said.

The jury disagreed and found that Mr. Valle had acted in furtherance of these grisly schemes – researching recipes for chloroform, downloading photos of his intended victims – to conclude he had crossed into the realm of criminal intent. In a separate charge, he was also convicted of unauthorized use of a law enforcement database to look up the women.
As both stories note, there is concern in some circles that Valle was convicted purely for his own fantasies, rather than any tangible act that put someone else in danger. While the specter of “thought crime” is enough to make anyone sit up and take notice, I’m not sure Valle’s case is the best one to use as an example. Regardless of what he said online, he took actions in the real world that appear to be part of a scheme. Most critically, he committed another crime – accessing the database – along the way. I can buy, somewhat, the idea of playing out the fantasy through some of the other acts doesn’t show intent to actually do anything. But once you’ve subjected yourself to criminal liability in the process, it seems clearly enough that the line has been crossed.

More troubling to me is the tale of Alfred Anaya, as detailed over at Wired.

Anaya was a car stereo installer in California who branched out into what are called “traps” – hidden compartments in cars in which items can be stored. They can be staggeringly complex:
In recent years, trap makers have competed to see who can dream up the most elaborate opening tricks. The acknowledged masters of this art are the Dominican-born installers of the Bronx, many of whom work out of auto body shops on Jerome Avenue—a gritty strip that DEA agents call the Silicon Valley of trap making. ‘The Dominicans started doing voice activation about six years ago,’ says [Maryland sheriff Michael] Lewis, who teaches classes in trap recognition to law-enforcement agencies nationwide. ‘I have videotape of a Dominican trap—you have to activate cruise control, pull one window up while you pull another window down, and you speak. And when you speak, you complete a circuit and activate the compartment. It’s pretty badass.’
Having said that, the most effective traps are the ones that aren’t detected in the first place. That was where Anaya really excelled.

“Now wait a second,” you’re saying to yourself. “I’ve seen Star Wars. I know that hidden compartments in a vehicle are used for smuggling.” And, of course, you’re right. But they’re not only used from that purpose. After all, what is a closed locked trunk if not a compartment used to hide from view objects you don’t want seen by the general public? Traps are just a further extension of that principle, for people who have particular valuables they want to protect.

That’s what Anaya thought, anyway, until a guy named Esteban came to him to fix a trap he had previously installed:
Anaya was unsettled by this request, for he had suspicions about the nature of Esteban’s work. There is nothing intrinsically illegal about building traps, which are commonly used to hide everything from pricey jewelry to legal handguns. But the activity runs afoul of California law if an installer knows for certain that his compartment will be used to transport drugs. The maximum penalty is three years in prison. Anaya thus thought it wise to deviate from his standard no-questions-asked policy before agreeing to honor his warranty. ‘There’s nothing in there I shouldn’t know about, is there?’ he asked. Esteban assured him that he needn’t worry.

* * *

Anaya punched a precise hole through the upholstery with his 24-volt Makita drill, probing for the screws that anchored the seat to the hydraulics. After a few moments he heard a loud pop as the drill seemed to puncture something soft. When he finally managed to remove the backseat, he saw what he had hit: a wad of cash about 4 inches thick. The whole compartment was overflowing with such bundles, several of which spilled onto the truck’s floor. Esteban had jammed the trap by stuffing it with too much cash—over $800,000 in total.

Anaya stumbled back from the truck’s cab, livid. ‘Get it out of here,’ he growled at Esteban. ‘I don’t want to know about this. I don’t want any problems.’
But it was too late. Esteban was part of a big drug ring that shipped drugs from California to Kansas. Once they were all arrested in the heartland, the feds came for Anaya, too, charging him with conspiracy, even though he really knew nothing about the actual drug smuggling operation. It didn’t matter. He made the mistake of going to trial and, with actual conspirators cutting deals to testify, didn’t stand a chance:
When the trial started on January 25, 2011, the lead prosecutor, an assistant US attorney named Sheri McCracken, argued that Anaya was one of the main reasons the smuggling ring had evolved into a multimillion-dollar enterprise. The organization ‘moved up in the world when they met Mr. Anaya,” she told the jury. ‘He built supreme compartments, and because he did that, drug hauling became easier … But for Mr. Anaya’s compartment building, lots of loads would be lost.’

* * *

McCracken took no pity on him. ‘He makes the drug world work,’ she told the judge. ‘He is equivalent to what I consider somewhat of a genius that takes cocaine and molds them into shapes so that they can be moved in plain sight … I don’t feel bad at all today. In fact, this is a pleasure. And Mr. Anaya says that he’s part of this big group of people that puts in compartments. He’s part of this secret society, I guess. Well, I hope he tells a friend, because we’re coming for them.’
Not only was Anaya was convicted, he was sentenced to more than 24 years in prison, double what the guys who actually ran the drugs received.

In both cases, the defendants involved have a good argument that they never knew what they were doing was illegal. Nor is it a coincidence that both were convicted under the squishier heading of “conspiracy” rather than for substantive offenses. But should the law reach that far?

It’s a common legal maxim that a person’s intent can be inferred from his actions. But what if the actions themselves are susceptible to multiple interpretations? A man shoots a gun and kills another man. Is it murder? If the shooter acted with malice and intent. Or was it self-defense? It was if the shooter was in reasonable fear for his life. Ultimately, Valle’s and Anaya’s behavior is the same thing – conduct that could be innocent, or it could be criminal.

At the end of the day, the line between crime and innocence is often blurry. That’s why we have juries, who get the awesome power to decide on which side of the line a defendant stands. They probably get it more right than wrong, but I’m sure that’s cold comfort to guys like Valle and Anaya. But in an imperfect world, imperfect justice is the most we can hope for.