December 21, 2014

A Crummy Commercial?

In a few days, TBS will kick off its annual A Christmas Story marathon.  That's the movie where the hero, young Ralphie, learns that the secret decoder ring he's waited and waited on for weeks is really just a way to shill for Ovaltine.  In Ralphie's words:
Be sure to drink your Ovaltine. Ovaltine? A crummy commercial? Son of a bitch!
Now, I'd like to think I'm both wiser and more cynical than a 9-year-old kid growing up in the 1930s or 1940s, but it still honks me off when somebody tries to sell me something disguised as anything but.

So say hello to DirecTV, this year's Christmas dipshits.

I was a DirecTV customer for a long time and had no problems with the service.  But when K and I got married and moved, it made more sense to get our TV and Internet pipes from the same land-bound service (which has generated it's own share of issues - how was Stephen Colbert's last show?).  As a result, they send me entreaties to come back in the mail all the time, which is fine, as they're easily identified and chucked in the trash.

On Friday, this came in the mail:

Except with my full address on it, obviously.  Now, I don't think I know anybody in El Segundo, California, but you never know, right?  Maybe some long lost friend is trying to get in touch or something.  Looks like a Christmas card - it's even got a snowflake stamp and Frosty on in, for fuck's sake.  So I open it up, and what do I find inside:

 A crummy commercial!  Naturally, it went right in the trash.

Look, I'm not a person who holds the Christmas (and related holidays) season holy or thinks it's entitled to some kind of inherent respect.  But if you want to sell me something, don't dress it up like it's some personal correspondence.  Call it an ad and be done with it.  I'll at least respect you while I throw the ad away.

December 18, 2014

Money, the Courts, and Real Priorities

A wise woman once said, "money talks, and bullshit walks." Sadly, more and more it's the money that drowns out everything when it comes to judicial elections.  But it's important to pay attention to the bullshit, too, and particularly to who is pushing it and why.

But first, let's get a few things clear.  Judges should not be elected.  They are not politicians, in the traditional sense.  They should not - and cannot - promise to voters to rule in particular ways on certain issues.  Most importantly, judges need the independence to apply the law as it exists, even when it's unpopular to do so.  Most often, that comes in criminal cases.

In fact, as this lengthy article from The Atlantic (and The Marshall Project), criminal cases, and fear mongering about them, tends to be the them of the millions of dollars of advertising outside groups pour into modern judicial elections.  The theme is simple and familiar - one candidate is "soft on crime" because she was either a defense attorney at one time in her career or, as a judge, she ruled in a vaguely pro-defendant way.  That the claims are exaggerated or, at least, more nuanced than presented is a feature, not a bug.

One of the many examples they discuss is one from West Virginia featuring a big player who is now a criminal defendant himself:
When coal executive Don Blankenship wanted to unseat an unsympathetic West Virginia justice in 2004, he didn’t run ads in the name of Massey Energy Co. He funneled nearly $2.5 million to a PAC called “And for the Sake of the Kids” to produce commercials alleging the incumbent had freed a child rapist and allowed him to work as a school janitor. In reality, Justice Warren McGraw had voted with the majority that a juvenile sex offender already on probation should have been sent to rehab instead of back to jail when he was caught drinking and smoking pot. The judge Blankenship helped elect reversed a $50-million ruling against Massey Energy, culminating in a landmark Supreme Court ruling that found the campaign contributions constituted 'a serious risk of actual bias.' (More recently, Blankenship was indicted in November over a 2010 mine explosion that killed 29 miners.)
This is an interesting development, for two reasons, one disturbing and one more revealing (but ultimately disturbing, too, in its own way).

It's taken as a given that these ads influence voters - if not, why run them?  Ilya Somin has written a lot about the rational ignorance of voters.  That is, basically, that the value of any single vote is so minimal that it's rational for would be voters to devote their time to things other than learning about politics, candidates, etc.  If that's true (and I'm somewhat convinced) for regular elections, imagine what it must be like for judicial elections.  After all, most folks will never appear before a judge they vote for or against, so how much thought will they give to that choice?

But even worse is that evidence is mounting that the ads are changing the way judges make decisions:
A growing body of research suggests that soft-on-crime attack ads may be changing how judges rule on criminal cases. In the American Constitution Society’s study of state-supreme-court races, Emory University law professors Joanna Shepherd and Michael Kang concluded that the more TV ads aired, the less likely individual justices are to side with a defendant. The impact was fairly small but statistically significant, showing that doubling the number of TV ads in a state with 10,000 ads increased the likelihood of a vote for a prosecutor by an average of about 8 percent.
* * *
Previous studies have found that Pennsylvania judges handed out longer sentences as an election approached, and that Kansas judges chosen in partisan elections gave harsher punishments than those who kept their seats in nonpartisan retention elections. A 2013 survey of seven states with judicial-election spending of $3 million or more, conducted by liberal organization Legal Progress, asserted that 'as campaign cash increased, the courts studied began to rule more often in favor of prosecutors and against criminal defendants.'
While judges deny any kind of influence, numbers don't lie.  They may not be as damning as they appear at first blush, but they aren't good.  It's bad enough for a would-be judge to use "tough on crime" language to get on the bench.  It's even worse for a judge to worry about keeping his seat while making a ruling in a case, criminal or otherwise.

The other thing, the more revealing thing, about all this spending is where it's coming from.  The article chronicles how most of this money comes from out-of-state groups that, for the most part, don't really seem to have anything to do with criminal justice.  In fact, most are pro-business groups using crime as an issue to support pro-business jurists.  For example, one group that spent nearly half a million dollars in a Michigan election was actually based in Virginia and formed by ex-tobacco company execs to fight smoking regulations.

But in some cases, it's worse than that, because the groups funnelling in money for these fearful spots that raise the spectre of child molesters running amok or killers being set loose at least make noises that they care about criminal justice reform:
Koch Industries, owned by the conservative activist Koch brothers, gave $460,530 this year to the Republican State Leadership Committee and $50,000 to the North Carolina Chamber of Commerce’s PAC—money that helped fund an ad promising 'no leniency' for violent criminals in Illinois and one praising a North Carolina candidate for 'putting murderers, drug dealers, and sex criminals in jail,' among others. In the same year, they’ve emerged as champions of due process and indigent defense, announcing a 'major' grant to the National Association of Criminal Defense Lawyers* and sponsoring a forum on the problem of mass incarceration.
Another wealthy family took part in that Michigan campaign, while also giving millions of dollars to an organization that fights mandatory minimums.

While you might argue that tactics are not the same thing as principled positions, it's a little disturbing to see people who claim to care about criminal justice reform stoke the fires of fear and misunderstanding that will keep it from happening.  Not to mention, the studies above show that there might be some actual impact on the judging, which makes the criminal justice system worse, not better.

It also provides evidence for those who argue that organized libertarians are really only concerned with money and property issues.  While they may say the right things about decriminalization or our exploding prison population, where are they putting their resources?  Where they think it will benefit their own bottom line.

Like I said - money talks, bullshit walks.

* Full disclosure - I am a member of NACDL.

December 15, 2014

An Adversary Is Not a Panacea

Of the many features that separates and Anglo/American legal system from the civil code system that most of the rest of the planet uses, the one that really sets it apart is that ours is an adversarial system.  Two parties enter the courtroom, battle it out from their own perspectives and, most of the time, a winner emerges.  If the "truth" (if you follow me) comes out in the process, so much the better.  Key to this system is that each party controls its own agenda.  Neither the court nor the public at large gets a say in how a case is presented (or not).

Now, one of the few exceptions to this is the grand jury process, which is decidedly one sided.  The prosecutor runs the show.  The defendant usually doesn't have anything to do with it, much less the defense attorney.  Which is part of what makes the grand jury decisions in Ferguson and Staten Island so unusual.  As a result, some folks are wondering whether all that prosecutorial discretion isn't such a good thing, particularly if the prosecutor doesn't seem to want to get an indictment.

There's a discussion to be had there, but one thing that would not improve results, if we're assuming a prosecutor soft-pedaling things, is the presence of a defense lawyer.  This column at Slate offers a refrain I've heard before, but is worth repeating:
The version of Michael Brown’s shooting that the grand jurors heard was engineered by the prosecutors, who vigorously questioned witnesses when their testimony contradicted Wilson’s story and barely questioned witnesses whose testimony supported the officer’s version. Wilson received especially lenient treatment by the lead prosecutor. The final question he asked was whether there was anything else that Wilson wanted the jurors to know. He did:
'One of the things you guys haven’t asked that has been asked of me in other interviews is, was he a threat, was Michael Brown a threat when he was running away. People asked why would you chase him if he was running away now. I had already called for assistance. If someone arrives and sees him running, another officer and goes around the back half of the apartment complexes and tries to stop him, what would stop him from doing what he just did to me to him or worse ... he still posed a threat, not only to me, to anybody else that confronted him.'
There was no defense attorney to question Wilson’s self-serving statement to the jurors.
Emphasis mine.  This after the author lauds preliminary hearings as an alternative to grand juries because:
These 'prelims' are open to the public, and they are adversarial. Witnesses are questioned and cross-examined by prosecutors and defense attorneys, all of whom must abide by the rules of evidence.
All that's true, but what would it have changed?  Why on Earth would a defense attorney in the grand jury have questioned Wilson about his "self-serving statement?"  That's not the defense attorney's job.  Nor would a prelim have made things any better.  Sure, it all would have been public, but, again, if the prosecutor is not inclined to grill the defendant (if he testifies), why would defense counsel do so?

There's an awful lot wrong when it comes to police getting away with horrible behavior, for various reasons.  Those need to be addressed.  But call to completely revamp the grand jury process - one that, like most other parts of the Bill of Rights, doesn't actually apply to the states - seems awfully short sighted.

The problem isn't that, occasionally, when a cop is involved, grand juries act as the kind of brake on state action they were intended to be.  The problem is that, in the run of the mill case involving a regular civilian, they hardly ever act that way.

December 11, 2014

On Prosecuting the Torturers

In the wake of the Senate report on torture by the CIA (and its contractors - leave it to we Americans to privatize our atrocities), there hasn't been a whole lot of ink spilled on what should be done to those who engaged in illegal behavior.   Generally that means prosecution, but should it?  There are at least a couple of arguments that it shouldn't, even if the folks are guilty as sin.

The first, and more persuasive argument, was set out by Anthony Romero, head of the ACLU* in the New York Times the day the report was released.  Although the ACLU has been in the forefront of trying to get all the details of our torture programs out in the open, he argues against prosecuting those involved (up to and including Bush, Cheney, and Rumsfeld).  It's not a matter of giving up - it's a more clever gambit:
with the impending release of the report from the Senate Select Committee on Intelligence, I have come to think that President Obama should issue pardons, after all — because it may be the only way to establish, once and for all, that torture is illegal.

* * *

Mr. Obama is not inclined to pursue prosecutions — no matter how great the outrage, at home or abroad, over the disclosures — because of the political fallout. He should therefore take ownership of this decision. He should acknowledge that the country’s most senior officials authorized conduct that violated fundamental laws, and compromised our standing in the world as well as our security. If the choice is between a tacit pardon and a formal one, a formal one is better. An explicit pardon would lay down a marker, signaling to those considering torture in the future that they could be prosecuted.
Problem is, I don't think pardons really work that way.  For one thing, I don't think one needs to formally "accept" a pardon for it to become effective, much less do so with conditions attached.  For another, I don't think accepting a pardon would concede that the conduct at issue was a crime.  

In fact, just the opposite could be true.  I might take a pardon precisely because I think my conduct wasn't criminal, in order to head off politically-motivated prosecutions in the future.  It would be no different than the West Memphis Three agreeing to enter an Alford plea to a lesser charge in order to be released from prison (and death row, for one guy), even though they maintain they're innocent.

So, while Romero gets some credit for creative thinking, I don't think handing out pardons would get him where he wants to go.

Eric Posner, on the other hand (writing over at Slate), has a much more disturbing take.  He argues that there should be no prosecutions because, well, in essence, politicians are untouchable:
But Obama’s best argument for letting matters rest is the principle against criminalizing politics. This is the idea that you don’t try to gain political advantage by prosecuting political opponents—as governments around the world do when authoritarian leaders seek to subvert democratic institutions. Of course, if a Republican senator takes bribes or murders his valet, the government should prosecute him. But those cases involve criminal activity that is unrelated to the public interest. When the president takes actions that he sincerely believes advance national security, and officials throughout the government participate for the same reason, then an effort to punish the behavior—unavoidably, a massive effort that could result in trials of hundreds of people—poses a real risk to democratic governance.

Obama’s problem is that if he can prosecute Republican officeholders for authorizing torture, then the next Republican president can prosecute Obama and his subordinates for the many questionable legal actions of the Obama administration—say, the drone strike that killed Anwar al-Awlaki and three other American citizens.
The full impact of Posner's reasoning is that no politician could ever be held accountable for a crime he or she commits, aside from something like garden-variety murder.  Crimes committed in the service of a political office can be committed with impunity, because of the danger of political justice.  I certainly agree that a series of bilateral criminal investigations done only for political motives would be bad for the country (although, honestly, how much worse?).  But that doesn't mean winning an election means immunity from wrongdoing just to avoid that fate.  Surely there's a line - doesn't sanctioning and carrying out a regime of torture that includes acts previously prosecuted as war crimes by this very country cross it?

One thing that both Romero and Posner say, and that I agree with completely, is that no prosecutions will actually happen. it's naive to think otherwise.  That doesn't mean we have to shrug and accept it or, much worse, justify it.

* Full disclosure - I am a card carrying member.

November 21, 2014

Friday Review: Gravity

I'm certain about one thing went it comes to Gravity - director Alfonso Cuarón and his technical team earned every one of those Oscars they won last year.  The film is a technical marvel, seamless and incredibly real, particularly given that all but the last few minutes take place in space.

But beyond that - well, I'm conflicted.

Because, here's the thing - aside from the visuals, there isn't a whole lot else going on.  This is either a bold rejection of most storytelling conventions, in which case props to Cuarón, even if it doesn't quite work, or it's yet another example of a movie that's all about on-screen dazzle at the expense of things
like characters, plot, and the like.  Just because the visuals are used to bring to life something realistic and dramatic, instead of (for an example) giant robots that transform into easily sold commodities, doesn't give it a pass.

A regular flick, I suspect, would have given us some scenes on the shuttle before the big accident, or even on the ground during the run up to the mission, to get to know the characters.  As it is, only through some clumsy dialogue while they drift in space do we learn anything about them.  As a result, we can't really engage with them on an emotional level.  Yes, it would be tragic if they died while in space (as with the rest of the redshirts), but aside from that, why care?

But on the other hand, I respect that choice.  I have a short story where the main character escapes from many years of captivity.  One of the notes I got on it from my crit group wondered if he needed something more specific to "get back to" as motivation.  I didn't see it that way - he was a prisoner, for fuck's sake - but I can see the point.

I've often heard that short stories are better for adapting to movies than novels.  They have less material to start with, of course, so a director doesn't have to worry about cutting great swaths of material to tell the whole of the story.  Gravity feels like a short story, reminding me of something like "The Cold Equations," where it's less about the characters and more about the situation they struggle against.

Ultimately, it's hard to fault Gravity for not being the kind of movie I would make.  It's a visual showpiece, a true movie - something that would be nearly impossible to pull off in another medium.  In that way, it's a bit like 2001, which doesn't have the world's greatest script, either.  So that's good company to be in.

Gravity isn't much more than a trip, but it is one hell of  a ride.

The Details
Released 2013
Directed Alfonso Cuarón
Written by Alfonso Cuarón and Jonás Cuarón
Starring Sandra Bullock and George Clooney

November 18, 2014

Reading Shouldn’t Be Work

We’ve all been there.

Deep in the bowels of a book – fiction or non, it doesn’t matter – getting through that vast middle between the beginning where you get hooked and the end where everything (hopefully) pays off, and it happens.  Something in the back of your mind, or maybe the front, says, “what the hell are we doing wasting our time with this shit?”

OK, so that’s what my mind says.  Your mileage may vary, as they say.  But everybody who reads is eventually faced with the question of whether a book is worth finishing.  Whether it’s the slimmest of novellas or a door stopper like the later volumes of A Song of Ice and Fire, you start to wonder if your time might be better spent elsewhere.  Like, say, reading a better book.

Writing at The Atlantic, Juliet Lapidos argues that you should stick it out to the bitter end, regardless of how much of a slog things become.  This isn’t just a matter of trying to ensure you don’t miss out on something that comes good at the end, it’s a question of morality:
This behavior, common though it may be, seems lazy to me. Wrong, even. Once you start a book, you should finish it.
That being said, she begins her case for always finishing a book with the most obvious utilitarian one – it might get better.  She gives examples (classics, naturally) of books that aggravated her to no end, but finally got around to a “transcendentally good scene” that made it all worthwhile.  This is true of anything, of course, and doesn’t really support the charge that bailing at some earlier stage is “wrong.”  Short sighted, maybe, but not wrong.

Her other reasons don’t fare any better.  The first is “fortitude,” which is essentially the intellectual version of being made to eat your vegetables.  Slogging through a boring book (to be fair, she names names – hello Ian McEwan fans!) steels ones resolve to deal with real life.  Which, conveniently enough in Lapidos’s case, involves . . . slogging through lots of poorly written verbiage.  I suppose there’s something to admire in that, but I don’t think anyone would begrudge her some editorial control over the reading she does on her own time.  I sometimes read court cases for fun (pathetic, I know), but only so long as they’re actually interesting.  I save the slogs for the office.

The last reason, is, I have to say, one that gets a little closer to why it’s “wrong” to step away from a book early – respect:
it is one thing to start writing a novel and another thing entirely to finish one. Many would-be authors simply cannot bring a work of fiction to completion, which is part of why publishing houses, as a rule, won’t enter into contract until they see an ending. The difference between being able to write 50 pages and being able to write a whole novel is the difference—at least, one major difference—between a professional and a dilettante.
To drop a novel after a few chapters is, then, to disregard what makes it a formal work of art rather than a heap of papers that reside in a desk drawer. Today, books and authors need all the help they can get; if you care about literature as an artistic endeavor and the people who create it, then you should do so fully.
As someone who has gone the full nine yards and finished a couple of manuscripts, I appreciate the sentiment.  But, ultimately, it pains me to think somebody would someday buy one of my books, start it, think “this really sucks,” but decide to finish it out just so they can support the cause.  OK, maybe I expect my wife to do that, but not strangers!  It’s less a sign of respect than a symbol of your own better nature as a human being – “hey, this novel really sucked, but at least I’m such a good person that I read all of this shit!”

Where any argument that a book, once begun, requires the reader to finish it fails is in what economists call opportunity costs.  Opportunity costs are, basically,, the things you could otherwise do with your time while you were doing something else.  Some people read entire novels in a day.  For others it takes weeks.  If you’re in the latter camp, aren’t you going to lose large chunks of your life reading stuff you don’t like just to say you could?  Reading other books in the time you would have spent slogging through (insert favorite horrific tome here) just makes sense.  We’re all gonna die at some point – life’s too short to read stuff you don’t like.

Which is why books are different than other forms of entertainments.  I’ve never walked out on a movie, although I’ve bailed on a couple while watching at home.  Regardless of how bad a movie is, it’s over in a few hours.  And, for the first reason Lapidos lays out, I tend to want to see if it gets better.  But a few hours is quite different than a few days or a few weeks.  Like I said, life’s just too short.

I am, perhaps, the ultimate subjectivist when it comes to art.  There is no bad or good, only what people like or don't like.  A slog that is redeemed for Lapidos by a single transcendent scene will be, for others, merely a slog.  Nobody should be guilted into consuming art because it's "good" for them.  They should be encouraged to develop their own tastes and interests.  If those don't include seeing every book through to the end, regardless of how much enjoyment the reader gets from it, so be it.

November 13, 2014

Our Values In Action

Last spring, while writing about how we treat people who are released from prison, I wrote that "society owes a duty to anyone it locks in a cage."  That's equally true, perhaps doubly so, while that person is still locked in a cage.  It's a test we fail all too regularly.

Take this latest atrocity highlighted by Radley Balko.  An inmate in North Carolina named Michael Kerr, a veteran, died after several weeks in solitary confinement, due to behavioral issues brought on by untreated mental illness.  After guards found him unresponsive in his cell, they drove him for 2.5 hours to a prison hospital - bypassing eight ERs along the way.  He died en route.  The details of Kerr's life and crime are in the article and are heartbreaking.

But that's not really the point.  What I wanted to really highlight is how Balko concludes his article.  He mentions how treating inmates humanely is, paradoxically, most difficult for the people who have to do so on a daily basis - prison staff.  But we can hardly blame them alone:
look at our values. Americans not only accept violence and sexual assault in our prisons, but also a large part of the population considers it a given — it’s just another part of a convict’s punishment. We’re not just comfortable with prison rape, we often find it humorous (even SpongeBob once made a prison rape joke), or we revel in the thought of inflicting it on people we abhor, members of groups we consider the enemy, or stand-ins for groups of people we find distasteful. (It’s a common sentiment to wish prison rape upon political opponents, particularly those who have been accused or convicted of crimes.)
If those of us far removed from prisons don’t take the humanity of the incarcerated seriously, we shouldn’t be surprised to see the officials we ask to actually run the prisons engage in the sort of sadism and brutality we see in these stories.

UPDATE: As if on cue, someone in the comments to this article about today's indictment handed down against coal baron Don Blankenship posted this:

Blankenship may deserve a lot of things, but if he winds up in prison, being raped isn't one of them.

November 12, 2014

Down the Memory Hole

In 1998, real estate belonging to Mario Costeja Lopez, in Spain, was seized by local authorities and auctioned off to pay debts he owed.  Notice of the auction went out in the local newspaper, and later on its web site.

Skip to this past summer, when a lawsuit filed by Lopez came to an end at the European Court of Justice (sort of a Supreme Court for Europe).  Staggeringly, the court partly agreed with Lopez's requests that the newspaper remove the notice from its archive and Google remove links to it from its search results.  The court didn't make the paper take the notice down, but did order Google to kill the links.  This is what's know as the "right to be forgotten."

As you might expect, Lopez's triumph has led to fairly disparate opinions on either side of the Atlantic:
Q: But this ruling goes completely against freedom of information - that anything that's public should be recorded and kept.
A: That's certainly how lots of American commentators have seen it. There's a definite cultural split in peoples' attitudes to this ruling. Journalism professor and commentator Jeff Jarvis (of City University, New York) called it 'a blow against free speech' - but was then chided by Gerd Leonhard, from Basel in Switzerland: ''Everything that happens must be known' - is that what you are proposing? I think EU decision on Google is a suitable first step.'
It's worth noting here that the European conception of what "privacy" means is fundamentally different than it is in the United States.  We tend to think of privacy as dealing with limits on the government and generally enforcing what Louis Brandeis called the "right to be let alone."  Europeans, on the other hand, put much more importance on being able to conceal parts of your own past from others - to emphasize being able to control your own personal narrative (so to speak).

The problem with that, of course, is that you're most likely to want to keep from view the very kind of information you want others not to know.  At the extreme, you probably don't want people to know about a prior conviction for a crime or maybe even a prior marriage.  More mundane worries may include things like poor job performance, embarrassing Facebook status/pictures, or, in cases like Lopez, financial insolvency.  All of that, of course, may be relevant information to others.

Regardless of the merits of either approach, the right to be forgotten is leading to some absurd requests.  Like the one recently received by The Washington Post (via) from a pianist named Dejan Lazic.

Lazic, from Croatia, gave a concert in Washington in 2010 at which the Post's music critic was not particularly impressed.  It referred to a prior work of Lazic's as "attention-getting, large scale and a little empty" and concluded that his recital "was unfortunately more of the same."  It wasn't a pan - Lazic was described as "sensitive" and "profoundly gifted" - but it was, at times, pretty barbed (in Lazic's hands a "scherzo became cartoon-like").

So, it's a less than glowing review.  But that's the price you pay for being an artist, right?  People get to say whether they like your stuff or not, or, more broadly, whether you're "good" and you don't get a lot of say on the matter.  Writers, I know, are encouraged to never engage with critics - it's a battle you just can't win.  Unless the review gets something factually wrong, you shrug it off and move on.

Not Lazic.  Armed with the "right to be forgotten," he has asked the Post to take the review down.  As he explains:
'To wish for such an article to be removed from the internet has absolutely nothing to do with censorship or with closing down our access to information,' Lazic explained in a follow-up e-mail to The Post. Instead, he argued, it has to do with control of one’s personal image — control of, as he puts it, 'the truth.'
The Post is not backing down, partly because even the right recognized in Europe doesn't extend to the actual newspaper stories, only the links.  But it also recognizes that there are broader issues, more meta ones, at stake.  Like which version of the "truth" gets to be in the permanent record:
Whose truth is right: the composer’s or the critic’s? And more critically, who gets to decide?
It’s a question that goes far beyond law or ethics, frankly — it’s also baldly metaphysical, a struggle with the very concept of reality and its determinants. Lazic (and to some extent, the European court) seem to believe that the individual has the power to determine what is true about himself, as mediated by the search engines that process his complaints.
Growing up with the First Amendment, I would say that the decision about where the truth lies belongs to neither the performer or the critic, but to everyone else.  I do think I have a right to know that Lazic is, in the opinion of some, a bombastic player who overperforms.  Heck, I may like such things!  Why should I only have the word of the performer to go on before I lay out cash for a ticket or a CD?  That would reduce us to a world of very special people who are brilliant at what they do.  Even as a writer, I wouldn't want that.

There is a considerable irony in all this.  Were it not for his successful court case, I would have never heard of Mario Costeja Lopez or his financial problems.  The same is true for Dejan Lazic and his penchant for pianistic bombast.  More perfect examples of the Streisand Effect would be hard to find.  Which gives me some hope that the right to be forgotten will, someday, make its own way down the memory hole.

November 4, 2014

How to Get Away With Anything

The breakout hit of the new TV season, to the extent there is such a thing anymore, is How To Get Away With Murder, the latest product of the Shonda Rhimes ratings factory.  It's about a law prof who's also a practicing defense attorney (not completely unheard of), who uses four students every semester as part of her defense team (very much unheard of).  We've already learned that, in addition to helping win murder cases, they're deeply involved in one.  It's fun, in a silly, don't-think-too-much-about-it kind of way.

However, as a friend of mine pointed out on Facebook the night of the premiere, it is deeply deeply unrealistic.  As he noted, there's a handful of glaring ethical failures in just the first episode, so anybody who thought the show's title held the promise of accurate advice, think again.  Come to think of it, if your legal knowledge is gleaned solely from primetime TV, remember the old MST3K mantra: it's only just a show, you should really just relax.

Having said all that, last week's episode entered my playground - the appellate court - and completely shit all over it.  Trust me, neither the Pennsylvania Supreme Court nor any other appeals court is ever going have parties calling witnesses, much less engaging in hyperbolic cross examinations in their courtroom.  Oh, and the guy whose fate their arguing over, the defendant?  Nowhere near the place.  Prisoners don't get transported for oral arguments.  It would have been easy enough to get all this right (move the hearing to a trial court), so one wonders why they don't.

Now . . . where was I . . .

Primary among the ethical slips we've seen so far is how some of the students lie about who they are in schemes to get information to help win their client's freedom.  This might seem bold, or even clever, but it's something you simply cannot do as a defense lawyer.  That's a good thing, but it results in a odd imbalance in the criminal justice systems.

You see, cops can and will lie to you.  This recent Christian Science Monitor article sums up the situation well:
Bluffing is a common – and legal – tool in police interrogation rooms, and the art of artifice in obtaining confessions is a standard part of police training. The parameters for what police can lie about are broad, and lies can range from claiming to have evidence that does not exist to fibbing that a witness was at the scene.

Still, per US Supreme Court rulings, confessions must also be 'voluntary,' introducing a possible point of contention between an officer’s right to lie to a suspect and his or her obligation to serve justice.

'The question is, at what point does the amount of lying make the confession involuntary?' Professor Shanks says. 'There’s just no bright line on it.'
Defense attorneys, and those employed by them (like, say, young eager law students) don't have that luxury.  Rule 4 of the WV Rules of Professional Conduct (which are similar enough to others in the country to serve as an example), is labelled "Transactions With Persons Other Than Clients."  It says:
Rule 4.1.  Truthfulness in statements to others.
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; or
(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.
So, where cops can lie about who they are and what information they have, defense attorneys and their investigators can't.  It's a simple as that.

Which leads to cops being involved with all kinds of shenanigans that would get a defense lawyer disbarred, if not locked up.  Like this latest outrage (via) in the War on (Some People's) Drugs:
The Justice Department is claiming, in a little-noticed court filing, that a federal agent had the right to impersonate a young woman online by creating a Facebook page in her name without her knowledge. Government lawyers also are defending the agent’s right to scour the woman’s seized cell phone and to post photographs — including racy pictures of her and even one of her young son and niece — to the phony social media account, which the agent was using to communicate with suspected criminals.
The woman had been arrested and ultimately pleaded guilty to a minor drug charge, for which she received probation.  Her phone was seized as part of her arrest.  She was never told about the fake profile using her information (she learned about it from a friend).

Why would the DEA think they could do such a thing?
The experts also agreed that the case raises novel legal and ethical questions. There is a long tradition of deceptive practices by police that are legal, they noted. For example, officers assume a false identity to go undercover. 'What’s different here,' said Ryan Calo, a professor at the University of Washington School of Law, is that the agent assumed the identity of a real person without her explicit consent.

'The technologies we have now are enabling all sorts of new uses,' said Neil Richards, a professor at the Washington University School of Law. 'There are a whole bunch of new things that are possible, and we don’t have rules for them yet.'
I'd beg to differ only in that the rules are already there and the cops (which includes the DEA) knows they don't need to follow them.  The slow destruction of the Fourth Amendment, combined with the desire to let cops do absolutely anything in the name of the War on (Some People's) Drugs leads precisely to this kind of behavior.

So, while ABC may want to show us how to get away with murder, the way to get away with most anything else is pretty clear - be a cop going after drugs.

November 2, 2014

How Not to Win Friends and Influence Voters

Let me start this screed by saying I'm a registered Democrat.  In a two-party world, the Dems come closer than the Republicans to being "right" on issues that matter most to me.  Needless to say, neither party does swimmingly well, however.

Which is why I'm particularly miffed by this piece of misguided get-out-the-vote strategy that's shown up in West Virginia (in this particular example, Cabell County, but it's happening around the country:

Here's the text:
The West Virginia Democratic Party monitors the level of voting in your neighborhood.  The Cabell County Clerk's Office official voting records are public information, and show whether you cast a ballot, but not who you voted for.  We will be reviewing these records after the election to determine whether you joined other citizens who voted in 2014.

[Info about voting times, registering, and phone number to call for help omitted]

Attached is our official "I Voted" sticker.  We encourage you to wear this after you go to the polls.  We only send these to the individuals we believe are most likely to vote.  Please don't disappoint us.


Larry Puccio
Chair of the West Virginia Democratic Party

This strikes me as spectacularly wrongheaded, for a couple of reasons.

First, is the a more Orwellian image than someone pouring through records to see whether you voted or not?  Why not just include a page that looks like this:

It would get the point across just as well. 

Besides, hasn't anybody in the DNC been paying attention to the public backlash about the NSA, TSA, and various national data gathering schemes?  Obama may not have launched them, but he's defended them vigorously.  In an election where Democrats are doing anything they can to distance themselves from Obama, sending out a "he knows when you are voting, he knows when you are not" letter is beyond tone deaf.

Second, the tone of this letter is very much, "you're a Democrat, you know who to vote for," which, I suppose, is a basic get-out-the-vote thing.  But it assumes that any Democratic candidate is owed my vote, which is not the case.  I'm not one of those "if you don't vote, you forfeit your right to complain" people.  I try to only vote for people I actually like.  The current slate of WV Dems are, quite frankly, not very appealing.  No amount of threatened shaming is going to change that.

Give us better candidates, Democrats.  Then you wouldn't have such a hard time getting any of enthused to go vote for them.

October 24, 2014

Friday Review: The Monuments Men

The story of the Monuments Men - a group of about 350 Allied soldiers who were tasked with safeguarding and liberating looted art during World War II - is fascinating and a part of the war that's frequently been overlooked.  That, thankfully, changed last year with the George Clooney flick, even though it didn't turn out to be the awards season champ it seemed designed to be.  The movie a fictionalized account of the story laid in the book by Robert Edsel.  For such an interesting story, it's a shame it doesn't get a better telling.

Edsel makes an admission right at the beginning of the book that doesn't bode well:
I have taken the liberty of creating dialogue for continuity, but in no instance does it concern matters of substance and in all cases it is based on extensive documentation.
I admire them for being up front about this, but it immediately calls into question what comes after.  More problematic, however, is that if the dialogue doesn't concern "matters of substance" then why include it at all?  In the end, the dialog doesn't add much drama or tension to the book, which is otherwise sorely lacking.  It's both an odd choice and a missed opportunity.

Perhaps one reason I'm particularly down on the dialogue is that in the Audible version, the reader tries to do most of them in accents and fails miserably.  I've rarely cringed while listening to an audiobook, but did so time after time with this one.  It was particularly jarring because early on when all the speakers were Americans, there didn't seem to be any accents at all (this changed, unfortunately).  The cliched French and German that came later, therefore, really grated on the ears.

Beyond that, part of the problem with the book is that the Monuments Men tend to blend together until it's hard to remember who's who.  They have very similar backgrounds and face the same kind of obstacles so that none of them really stand out.  In fact, the biggest help I had in keeping them separate in my head was to picture their counterparts in the movie (fictional characters based on actual people).

In fact, the two most memorable people in the book (aside from Hitler, Eisenhower, etc.) are ones that don't quite fit the "Monuments Men" label.  One was Rose Valland, a French woman who spent the war in the midst of Nazi Paris keeping track of plundered art, then became the key figure in tracking it down and recapturing it.  She, obviously, was not a man (nor American, which is the primary focus of the book and film).

The other is Harry Ettlinger, who was a man, but unlike the more sophisticated, educated, and high class art types who became Monuments Men, was just a private who wound up doing his part.  It's his back story that makes that part compelling.  Ettlinger was a Jew, born in Karlshrue and forced to flee before the war.  He was, we are told, the last person to have a bat mitzvah in that city's synagogue before it was destroyed.  That he returned to Germany an American GI, helping right the cultural wrong perpetrated by the Nazis (including a fulfilling personal mission) is the best part of the book.

The other problem is that, once things get going, the activities of the Monuments Men are pretty redundant.  During the initial periods after Allied landings in Italy and France, they are tasked with keeping valuable buildings and works from being carelessly destroyed.  Important, no doubt, but not that thrilling once we're past the initial instance.  Things pick up a bit once they're on the trial of looted art, but those trails mostly lead to a series of mines in Germany and Austria where the Germans stashed the loot.  The mere fact that untold treasures are stuffed down mines, much less the challenges of getting them out, are interesting but, again, become a bit redundant.

In the middle of this section comes an interesting, if not altogether relevant, diversion.  The most impressive of the salt-mine stashes was found in the Austrian town of Altaussee.  The Nazi governor of the area planned to blow the whole mine up, destroying all the looted artwork rather than let it fall into Allied hands (all based on an order from Hitler that may, or may not, have been rescinded and/or modified).  A group of locals managed to trick him into delaying the plan long enough for the Allies to arrive.  It's a neat story and, from Edsel's telling, one that's been untold in its true depth, for years.  However, it doesn't really have much to do with the Monuments Men, as they arrived after the drama was done.

But most of that is nitpicking.  What Edsel has done is to celebrate not just a group of people who did important (and often overlooked) work.  He notes just how unusual this focus on preserving and repatriating art was and what a worthy endeavor it was.  Armies just didn't do such things.

Nor do they much anymore.  Edsel wonders why we haven't had similar operations (at least in terms of scope) in future wars.  Sadly, I think it's pretty easy to figure out.  Edsel frequently refers to the Monuments Men's goal as no less than the salvation, not just of particular cultural artifacts, but of "our" culture in general.  He even goes so far as to call the Altaussee plot one of the great turning points of civilization.  So why, then, were there no Monuments Men units in Iraq or Vietnam or Korea?

Simple - those places aren't part of "our" culture.  The Nazis, after all, were still Europeans and thus part of a long heritage that extended to the United States.  Not so much some others. It's not for nothing that the Monuments Men effort was confined to Europe, with no mention of the Pacific theater.  Nor should it be lost that the genesis of the group that became the Monuments Men was concerns about protecting American art in case of invasion.  We care most about ourselves and those who remind us of ourselves (Bender was onto something), whether that is how it should be or not.

Edsel himself has an interesting story (according to Wikipedia).  He grew up in Texas and made his money in (what else) oil and gas drilling.  He sold out to Union Pacific in the 1990s and moved to Europe.  It was there he first became interested in the subject of the Nazis and art during the war.  He's done yeoman work to bring this issue to national attention and clearly cares deeply about it.  None of the criticisms of his writing should minimize that.

The Details
The Monuments Men: Allied Heroes, Nazi Thieves, and the Greatest Treasure Hunt in History
by Robert M. Edsel, with Bret Witter
Published 2009

October 20, 2014

If You're Worried About Rosebud, You're Missing the Point

It's his sled. It was his sled from when he was a kid. There, I just saved you two long boobless hours. 
- Peter Griffin, spoiling Citizen Kane

Saw Gone Girl last weekend.  It's really good, particularly if you like the kind of movie that takes place in an air of dread that's perfectly summoned by David Fincher (with able assists from Trent Reznor and Atticus Ross).  I say that even knowing the big twist of the film going into it.  Not because I had read the book on which it's based, but because my wife blurted it out during a TV commercial. She didn't know I wanted to see it.

Point is, she didn't really "spoil" the movie for me, in the true sense of the word.  That's because the flick is good enough that it doesn't rise or fall on the big "twist" (which, for what it's worth, happens about halfway through - this isn't The Sixth Sense we're talking about).  In my opinion, any movie/book/TV show that rises and falls on that twist isn't really worth watching.

What's more, people seem to enjoy things more once they know how it turns out.  At least that's what some research says.

Back in 2011, as The Atlantic reports, a study was published that sounds pretty neat:
Scientists asked 900 college students from the University of California, San Diego, to read mysteries and other short stories by writers like John Updike, Roald Dahl, Agatha Christie, and Raymond Carver. Each student got three stories, some with "spoiler paragraphs" revealing the twist, and some without any spoilers. Finally, the students rated their stories on a 10-point scale..
The results?  Readers preferred the spoiled stories.  But why would we want to know how it ends ahead of time?
One theory is that our anticipation of surprises actually takes away from our appreciation for the 99 percent of the movie that isn't a monster twist. 'The second viewing is always more satisfying than the first,' Sternbergh said, 'because you notice all the things you missed while you were busy waiting for the twist.' Psychologists have observed that when we consume movies and songs for a second (or third, or hundredth time), the stories become easier to process, and we associate this ease of processing with aesthetic pleasure.
Think about this for a second.  Most of us have some piece of culture that we go back to again and again.  I know that the big escape at the end of Brazil takes place all inside Sam's head, but I still watch it.  I know that Arthur and Ford wind up on a primitive Earth populated by a bunch of idiots expelled from a better planet, but I'll still reconsume Hitchiker's Guide . . . again (in its many forms).  And I know Tommy goes back to being blind, deaf, and dumb at the end, but that doesn't make "Pinball Wizard" kick any less ass.

Of course, there might be other reasons why spoilers really aren't, including the uncomfortable recognition that we really like predictability more than we let on.  But, in this area at least, I'd like to not be completely cynical* and think that, deep down, we realize that works built on the big twist only are, as someone else put it in the Atlantic piece:
like artistic flash paper: It excites for a moment but offers little lasting wonder.
After all, we want to be better than Peter Griffin.  Right?

* I know, you're shocked, right?  How's that for a twist!

October 15, 2014

On Criticism of Islam

So, a few weeks ago, Bill Maher said this:

That stirred up a bit of shit, but the real deal came the next week, when Maher brought up the topic again, this time with Sam Harris and Ben Affleck in the free fire zone:

I like Bill, but I think he's on the wrong side of thing here.  Or, if he isn't, he's not being sufficiently specific in his criticism to convince me.

For one thing, he never actually names the "liberals" he's calling out or provides examples of the kinds of things to which he objects.  Without that, it's hard to tell whether he's right or wrong.  Reading between the lines, he might be talking about people who argue either that (1) it's important to distinguish radical Muslims from those more moderate and liberal ones and who stress the need to not paint an entire religion with a broad brush or (2) religion isn't really the root cause, or is one of many contributing causes, to the violence in Iraq and elsewhere.

I'm leaning toward the first, because Bill is fond of making broad sweeping comments, in this and all other areas.  Also, it's bolstered by something Harris said during the second segment:
There are hundreds of millions of Muslims who are nominal Muslims, who don't take the faith seriously, who don't want to kill apostates, who are horrified by ISIS.
This is an argument I see pop up with some regularity in the atheist blogosphere that really makes no sense.  I've hinted before that, as an atheist, I really don't have a say in who gets to claim the label of Muslim, Christian, Hindu or whatever.  It's enough to note that radically different people with apparently irreconcilable positions both claim the title and leave them to sort it out.  Thus, it comes off as awfully arrogant to claim that the non-lethal members of a religion are so in name only and really don't take their "faith seriously."

It's also stupefyingly bad politics.  Although there are some atheists who are intent on turning other people into atheists, most of us (I hope) are more interested in ensuring that the government stays a secular institution and that no religions dictates get enshrined into law.  In that quest we can count on a large number of Christians, Jews, and other religious folks who value church/state separation, for whatever reason.  It's beyond counterproductive to tell them they aren't "really" religious because they've signed on to a moderate form of a particular faith that lets them live in peace with their neighbors.  After all, that should be the goal.

Leading the push back against Bill and Sam (or coming to Affleck's rescue, if you like) is author Reza Aslan.  In a New York Times piece he makes an interesting point:
What both the believers and the critics often miss is that religion is often far more a matter of identity than it is a matter of beliefs and practices. The phrase 'I am a Muslim,' 'I am a Christian,' 'I am a Jew' and the like is, often, not so much a description of what a person believes or what rituals he or she follows, as a simple statement of identity, of how the speaker views her or his place in the world.
As a form of identity, religion is inextricable from all the other factors that make up a person’s self-understanding, like culture, ethnicity, nationality, gender and sexual orientation. What a member of a suburban megachurch in Texas calls Christianity may be radically different from what an impoverished coffee picker in the hills of Guatemala calls Christianity. The cultural practices of a Saudi Muslim, when it comes to the role of women in society, are largely irrelevant to a Muslim in a more secular society like Turkey or Indonesia. The differences between Tibetan Buddhists living in exile in India and militant Buddhist monks persecuting the Muslim minority known as the Rohingya, in neighboring Myanmar, has everything to do with the political cultures of those countries and almost nothing to do with Buddhism itself.
Azlan also argues that "scripture is meaningless without interpretation," which I think is his way of saying that no text, regardless of how explicit it appears, stands on its own.  Everything has to be interpreted, which says as much about the person doing the interpreting as it does the text itself.  Don't believe me?  Read courts taking opposite positions on the same statutory or Constitutional language - it happens all the time.

Which is not to say that Islam itself is off limits from criticism, nor are those who act in its name when they do horrific things.  Fareed Zakaria sums up the situation pretty well:
Islam has a problem today. The places that have trouble accommodating themselves to the modern world are disproportionately Muslim.
In 2013, of the top 10 groups that perpetrated terrorist attacks, seven were Muslim. Of the top 10 countries where terrorist attacks took place, seven were Muslim-majority. The Pew Research Center rates countries on the level of restrictions that governments impose on the free exercise of religion. Of the 24 most restrictive countries, 19 are Muslim-majority. Of the 21 countries that have laws against apostasy, all have Muslim majorities.
And that was before ISIS wrote proudly in its Enlglish language magazine (there is such a thing!) of its enslavement of Yazidis in Iraq.  Yet Zakaria still concludes that Bill and Sam are guilty of being too broad when talking about Islam.

If Bill's problem with liberals and Islam is the second one I laid out above - that they might tend to look deeper than just a "religion=bad" analysis, he's on even shakier ground.  It's easy to point to religious conflicts through history, ones where one faith battled another.  But it's hard to find ones that are really, deep down, about religion itself.

To use a non-Islam example, think of The Troubles that racked Ireland for so many decades.  On the surface, it was a sectarian struggle, between Catholics and Protestants.  Dig deeper, however, and it turns out that those were convenient labels for groups that were actually split between Irish republicans and British royalists.  They weren't fighting over the finer points of the Reformation or Transubstantiation, they were fighting about political control of Ireland.  As Azlan wrote, being "Catholic" or "Protestant" in the context of that struggle was more about a form of identity, not theological rigor.

Hell, even Richard Dawkins is softening a little bit as to whether ISIS and the like are really about religion or not.  If the Grand Poo-Bah Supreme Potentate of Atheism (tm) has come to that conclusion, surely Bill can't complain!

There's nothing wrong with criticism, either of a person or an idea.  However, broad criticism of entire groups of people does very little good in the end.  It doesn't help you understand the nuances of a situation or the deeper currents that may be driving it.  It doesn't help draw those to your cause who may think you're an arrogant dipwad for telling them what they believe.  It might feel good to blow off a little steam and feel superior for a while, but that doesn't get you very far.

October 9, 2014

We're Fooling Ourselves

3rDegree's 2012 album The Long Division is a political album.  In the sense that it's about our modern political world, not that it was trying get people to vote one way or the other.  The verdict of the album's half dozen related tracks is that the system is undeniably fucked up, partly because we, as a nation, have lost the ability to talk with people on the other side of an issue.  The lead off track lays it out well:

But this isn't just a snarky observation by a bunch of musical types from New Jersey (mostly) - it's backed up by statistics.  In a post over at The Volokh Conspiracy, Ilya Somin (quoting a Cass Sunstein op ed) lays out some numbers about the rise of "partyism" in the United States.  They're kind of chilling:
In 1960, 5 percent of Republicans and 4 percent of Democrats said that they would feel 'displeased' if their son or daughter married outside their political party. By 2010, those numbers had reached 49 percent and 33 percent. Republicans have been found to like Democrats less than they like people on welfare or gays and lesbians. Democrats dislike Republicans more than they dislike big business.
As Somin then points out:
Increasingly, we assume that supporters of the rival political party are not just misguided about political issues, but also untrustworthy or malevolent people in general.
Although it's sometimes hard to admit, democracy (and life, more generally) is about compromise.  To quote another rock lyric, "you can't always get what you want."  You have to be able to give a little to get a little.  But that's damned difficult when the person on the other side of the aisle isn't just wrong, but is (in Somin's words) "evil, selfish, or stupid."  Compromise with evil is immoral and compromise with stupid is impossible.  So we all throw up our hands and go have a press conference while nothing gets done.  It's the modern equivalent of fiddling while Rome burns.

So what to do about it?  Do we chastise talking heads and Internet commenters who jump to the worst possible conclusions about their political rivals?  We should, but I'm not sure that's going to get very far.  What I think it's going to take to back the country down from this precipice is the very thing 49 percent of Republicans and 33 percent of Democrats fear - ideological mixing.

Because, here's the thing.  When it comes to most people who hold opinions different from you, they're actually not monsters or morons, evil or stupid.  They're people, with all the flaws that entails, who, ultimately, probably want the same broad things you do (a good life, safe neighborhoods, educated kids, etc.).  They may be ignorant about a particular issue, but we're all ignorant about something (lots of somethings, more likely).  When we forget that, we slide back into ideological tribalism.

I'm speaking from some experience here.  I'm the outlier among my brothers (and sisters in law, for that matter) in being a liberal atheist.  My older brothers have both become more conservative and religious as they've grown up, had kids, and the like.  When it comes to many matters of politics or theology, I think they're wrong.  But I know, because I've known them all my life, that they're not "evil, selfish, or stupid."  We see the world differently, but that's all right.  It makes it a lot harder to demonize the opposition when you know them as real people, not just soldiers for Team Red or Team Blue.

That's not to say all we need is to get together, sing "Kumbayya," and everything will work out.  Like I said, folks on either side of a political dispute are just people.  As there are (generally) good, thoughtful people out there, so to are there assholes, opportunists, the short sighted, and, yes, the evil.  But they're a smaller proportion of the population than we think in our worst "our side uber alles" flag waving moments.

Through my forty years, it's just been a fact that (at the national level anyway) one side doesn't get what it wants all the time.  Even during all those years the Democrats controlled Congress they had to deal with fierce GOP minorities or a GOP President.  Neither side will ever triumph over the other completely.  None of this is to suggest that partisans on one side or the other should refrain from calling the other folks out for being wrong. But there's a world of difference between calling someone (or, more correctly, his or her idea/proposal/argument) "wrong" and calling them dipshits, evil doers, or (to pull one example I saw today) a "weasel."

If we don't recognize that and try to at least make a good faith attempt to understand, rather than caricaturize, the other side, then we really are fooling ourselves if we think the country is ever going to get better.

October 5, 2014

Ignorance Is No Excuse . . . Unless It Is

The old maxim goes that "ignorance of the law is no excuse."  That's certainly true when it comes to us plebs, but what about the cops?  Or does "almost" count for law enforcement, the way it does for horseshoes, hand grenades, and atomic weapons?  The Supreme Court, in a case that kicks off the 2014 term Monday, is about to tell us.

Nicholas Heien was driving in North Carolina when he got pulled over for having a busted tail light.  A subsequent search uncovered drugs, which lead to Heien being prosecuted for, among other things, the busted taillight.  But the North Carolina courts determined that state law only required one working tail light, regardless of how many lights the car was supposed to have.  One busted one, therefore, was not a crime, so long as the others were working.

So much for Heien's driving charge. But what about the drugs?  Was the stop good, now that we know it was based on an incorrect interpretation of the law?  The state supreme court decided almost was good enough - so long as the cop's mistake of law was "reasonable," the stop doesn't violate the Fourth Amendment.  Because state law on tail lights was uncertain, the cop's stop of Heien in this case was reasonable.

Orin Kerr lays out the issues and why he thinks the defense should prevail. I agree that they should, but that doesn't mean much in modern Fourth Amendment law.  That being said, this case does have two interesting angles that might lead it to buck the trend.

First, a lot of the modern cases stripping the Fourth Amendment deal not with the amendment itself but with the exclusionary rule - the rule that says that evidence discovered during an unconstitutional search can't be used at trial.  The Supreme Court (and the lesser courts) has, for the past few years, expanded the once-limited "good faith" exception to the rule, giving cops more room to make mistakes and not pay a price for it.  Heien can't be viewed through that lens because North Carolina, in its state constitution, explicitly rejected the good faith exception.  So the Supremes will have to deal with the issue head on.

Second, and hanging over the whole thing, is the goose/gander angle I mentioned above.  As Kerr explains:
it seems only fair to apply the same rule to the police that applies to regular citizens. Mistake of law is a classic subject taught in first-year Criminal Law. Students read cases like People v. Marrero, 69 N.Y.2d 382, 507 N.E.2d 1068 (1987), in which a federal prison guard was convicted of possessing a weapon in violation of a state law that had an express exception for 'corrections officers . . . of any penal institution.' After Marrero was charged, a divided lower court ruled that 'any penal institution' only meant a state penal institution, which to his shock excluded Marrero. New York’s high court then ruled that Marrero could not assert a mistake of law defense in light of this ruling. Ignorance of the law was no excuse, even if 'the law' was handed down in a surprising way only after the defendant’s arrest. This was a harsh result for citizen Marrero, perhaps, but it was needed to give individuals an incentive to learn the law.

That’s the usual rule in criminal law, and I’m not sure why the same thinking shouldn’t apply in criminal procedure.
I wouldn't expect a generic Fourth Amendment case to really catch the public's attention.  We've let it atrophy so much over the past few decades that I wouldn't blame most folks if they thought it had just vanished into thin air.  But I'd expect there to be an uproar if the Supreme's give the cops more leeway when it comes to knowing the law than they do regular citizens.  If the fear of that is what it takes for them to get this one right, so be it.

UPDATE: Scott over at Simple Justice has a more pessimistic take.  Having read about half of the oral argument transcript, he might be right to worry.

September 29, 2014

Thoughts on the Prog 100

Back in my college days, when I was young (*sigh*), to find discussion about progressive rock you had to dig deep into the Internet.  These were the days before Facebook, before Youtube, and even comprehensive websites like ProgArchives.  The best you could do, usually, was a Usenet newsgroup - all text, all the time!  I remember downloading 15-second samples (over dial up!) of the first Spock's Beard album, for crying out loud!

Which is all a way of saying that I'm still stunned that I can find a regularly published, glossy magazine devoted to prog on newsstands every month.  The appropriately named Prog (from the folks at Classic Rock magazine) is very British and, thus, very a month behind when it arrives in the states.  Still, it's great to be able to pick it up and dive deep into interviews, reviews, and album features every month.  It's a sign of how far things have come in the past twenty years.
In honor of its 50th issue, Prog conducted a reader poll to sort out the top 100 prog albums of all time.  The results ran in the August issue and, naturally, prompted discussion in various parts of the prog universe.  Who am I not to chime in?

It's worth keeping in mind that this was a reader poll, although several noted musicians chime in with their top albums as well.  As a result, it reflects the tastes of the readership of a magazine that tends to stick to the more classically "prog" end of the spectrum.  It's pointless to complain that the results look like a popularity contest - it is a popularity contest.  Not that there's anything wrong with that, of course, and I'm hardly one to complain about the collective choices - I own 77.5 of the 100.*

That focus is partly why the list had a lot of choices from prog's modern era, from bands like Porcupine Tree, Opeth, and Spock's Beard.  The mods even cracked the top 10, with Steven Wilson hitting the ninth spot with The Raven That Refused to Sing (and Other Stories).  On the one hand, I think that's great - it speaks to the vitality of modern prog.  On the other hand, it's hard to imagine that there aren't a lot of older albums that were overlooked that should have taken those spots.

As for the overlooked - where do we start?  How about with the really avant garde, which is almost completely neglected.  Aside from Can's Tago Mago (#98) and Henry Cow's Legend (which current King Crimson front man Jakko Jakszyk singles out as his number one), there's nothing of the more adventurous and, dare I say, challenging side of prog.  No Magma, no Univers Zero, no Present, no Krautrock (Can aside).  That's a pretty big hole, given that the entire point of prog is to push boundaries.

Another odd gap in proceedings involves the Canterbury scene, which has some of the most interesting and beloved artists in prog.  Caravan and Robert Wyatt each get a mention, but there's no Soft Machine, no Hatfield and the North, and no Steve Hillage or Gong.  At the very least, National Health's Of Queues and Cures should have made an appearance.  It would be in my top ten without doubt, maybe battling for the top spot.

The final blind spot that really sticks out for me is that, for the most part, this is an English (and related nations) list.  There's not a single album on the list with lyrics in a non-English language, which overlooks the fertile prog land of Italy completely.  Any top 100 list that lacks PFM, Banco, Le Orme and others is questionable.  Granted, it's a British magazine, but there's still no reason, in 2014, to not embrace the wide world of prog in all its multinational wonder.

That being said, if you knew nothing about prog and stumbled upon this list, there are worse places to start learning about the genre.  Just remember, that there's much more to the world out there, to the delight of your ears and the distress of your wallet!

* Big Big Train's English Electric was originally released in two parts, but it appears on the list as one volume.  I have the first part, but not the second.

August 25, 2014

Eric Cartman Pens an Op-Ed

Since the killing of Michael Brown by a police officer in Ferguson, Missouri a couple of weeks ago, a lot of words have been written.  I can't claim to have read them all, but I can say without hesitation that this piece in the Washington Post has to be one of the most outrageous.  Strangely, it has nothing to do with the specific facts of the Brown shooting, but it says an awful lot about how the police view the world around them and the people who live there.

Sunil Dutta is now a professor of "homeland security" at a for-profit university, but before that he spent 17 years as an LAPD officer.  Last week, Dutta wrote a column entitled:
I’m a cop. If you don’t want to get hurt, don’t challenge me.
Provocative, yes?  However, if you know anything about journalism you know that, quite often, the person who writes the article doesn't write the headline and the headline is crafted to be sensational and generate page views.  Hell, some places like Slate are so bad about it that the percentage of time the headline matches the article contents probably hovers around the Mendoza Line.  So, maybe, give Dutta the benefit of the doubt and assume he has a more nuanced point to make.

Not so much:
Even though it might sound harsh and impolitic, here is the bottom line: if you don’t want to get shot, tased, pepper-sprayed, struck with a baton or thrown to the ground, just do what I tell you. Don’t argue with me, don’t call me names, don’t tell me that I can’t stop you, don’t say I’m a racist pig, don’t threaten that you’ll sue me and take away my badge. Don’t scream at me that you pay my salary, and don’t even think of aggressively walking towards me. Most field stops are complete in minutes. How difficult is it to cooperate for that long?
In other words:

To be fair, Dutta "side[s] with the ACLU" and argues that all officers should wear body cameras and all police cars should have a camera, too (although, as Radley Balko points out, those are hardly a panacea).  And he writes this:
And you don’t have to submit to an illegal stop or search. You can refuse consent to search your car or home if there’s no warrant (though a pat-down is still allowed if there is cause for suspicion). Always ask the officer whether you are under detention or are free to leave. Unless the officer has a legal basis to stop and search you, he or she must let you go. Finally, cops are legally prohibited from using excessive force: The moment a suspect submits and stops resisting, the officers must cease use of force.
Emphasis very much mine.  This, while nice in theory, directly contradicts the "respect my authoritah" mantra he relies on earlier.  If a cop says he's going to stop me and I don't think he has the right to do so, what do you think will happen if I don't "submit" to it?  We're talking about a relationship with a serious imbalance of power between the two people.  The officer has the gun, after all, and, as we've seen, generous legal cover should he or she use it.  I, on the other hand, am likely to at least wind up arrested for something vague like "disorderly conduct," of not worse.

Ken at Popehat is right.  Dutta's attitude, and the fact that we generally accept it without much objection, is "servile and grotesque."  If anything good comes out of this whole mess, maybe it will be that society starts to rethink the hands off attitude we have toward the way the police do their job.

August 21, 2014

Second Thoughts From An Unlikely Source

In 1989, 11-year-old Jacob Wetterling was snatched off the street by a stranger, the paradigmatic example of the kind of abduction that gives parents nightmares.  He was never found and his abductor never captured.

All that prompted Jacob's mother, Patty, to become involved with the issue of sex offender registries.  At the time, a few states had registries, but most did not.  Patty's efforts paid off in 1994, when Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, the first comprehensive national sex offender scheme.

In the years since, state registries have exploded and Congress has repeatedly enacted new laws that expand the nature of the registries and provide harsher punishments for offenders who don't follow the registration scheme.  Now more that 750,000 people are on sex offender lists in the United States.  If it works, great, but what if it doesn't?

It's not surprising that people in my line of work would argue that sex offender registries are overbroad, prevent ex-cons from being able to reintegrate back into society, and generally constitute extensive punishment beyond their prison terms.  What is surprising is that Patty Wetterling is starting to have second thoughts, too:
These registries were a well-intentioned tool to help law enforcement find children more quickly,' she told us. 'But the world has changed since then.' What’s changed, Wetterling says, is what science can tell us about the nature of sex offenders.
What the science says is that, contrary to popular myth, sex offenders are not egregious recidivists.  In fact, they commit new crimes at a lower rate than burglars, fraudsters, and (naturally) drug offenders.  In addition, we know now that the overwhelming number of victims of sexual abuse are victimized by people close to them - family, friends, or community figures.  Jacob's kidnapping out of the blue is such a terror precisely because it is so rare.

Fear has played an important role in getting us where we are now:
Wetterling remembers watching this spiral of fear after Jacob’s disappearance. 'The fear was real. It was devastating,' she said. 'People became absolutely terrified. There were people in my community who wouldn’t let their children bike anymore or play in the park.' Twenty years on, she has come to see this reaction as 'not information-based.' And two decades after she succeeded in persuading Congress to pass Jacob’s Law, she’s now asking people to take a second look to see whether laws like the one named for her son are doing more harm than good and should be curbed.
Jeralyn at TalkLeft has pointed out before that laws named after people are generally a bad idea:
Let us not enact laws out of grief and passion, or in response to a singular criminal event, however horrific it might be. Cooler heads are needed where our fundamental liberties are at stake.
But she, and I, after all are criminal defense attorneys - what would you expect us to say?  Which is why Patty Wetterling's voice is so important on this issue.  She knows the pain of losing a child, but has come to realize that the anger and desire to do something - anything - in the wake of such a tragedy doesn't always produce good results.

August 11, 2014

The State Calls the Deceased to the Stand

All right, so why is this funny?

OK, it's funny for lots of reasons, most of them absurd.  But the most absurd bit involves a barrister seeking testimony from a dead man.  You just don't do such things.

Or do you?

A NPR story from last week tells of a crime in Brazil in which the victim came back from the grave to testify.  It involved a love triangle - two guys, one girl - that turned violent, leaving one of the male suitors, Rosa, dead.  So far, so straightforward and downright cliched.  And then:
Lenira is riven with guilt — she still loved Rosa — and so she goes to see a medium, a very famous one. She receives a letter from Rosa from the beyond.
'In the letter, channeled by this medium, the deceased confesses,' de Lima explains. 'He says his jealousy was the reason for his death. The letter includes details that only people close to him could have known.'
Nice injection of woo into the story, but here's where it gets really strange.  The letter was actually introduced in court on behalf of the shooter.  He was acquitted.

Turns out, this is not such an unusual occurrence in Brazil, particularly in the region where these events took place:
Judge Hertha Helena Rollemberg Padilha de Oliveira (no relation to Lenira) says there are many cases involving spirits in Brazil.
'If the proof is not illegal, it is lawful — you have to accept it in the process,' she says.
So when individuals present letters from the dead, written by a medium, de Oliveira says the judge has to accept it. 'He has to accept the proof in the process,' she says. 'He can't say, 'Take the letter away from the process.'
'[Brazil] is a very spiritual society,' the judge explains. 'Ninely percent of people probably will believe in some kind of spiritual influence. Most of the people believe in life after death.'
It's hard to argue with the defense attorney for introducing the letter - it worked, after all (let's hear it for zealous representation!).  It's harder to accept a court of law treating it as anything other than the trumped up sham it is.  Putting to one side that mediums are bunk (or giant douches), how on earth is the letter admissible as evidence?

In an American court, I think you'd have a serious problem getting around a hearsay objection.  True, there is an exception to the hearsay rule for statements made by a person against his own interest, but the justification for that is firmly rooted in the here and now.  The theory goes that no person would say something incriminating about himself if it wasn't true, so such statements are generally trustworthy.*  I'm not sure that justification applies to a statement from beyond the grave - if the declarant's already dead, what's the risk in making an incriminating statement?  Not to mention, those left behind and charged with a crime would have a hell of a motive to fabricate such a thing.

As it happens, according to at least one source, Brazilian law doesn't include a prohibition against hearsay, so that might not be a problem in cases like this one.  And, assuming you believe the woo involved, I suppose it's highly relevant.  It's certainly persuasive, although the two aren't always the same thing.

It's tempting to look at a story like this and dismiss it as something that happens elsewhere.  Indeed, the NPR pieces calls it "a tale of Brazil" that brings to mind the work of Gabriel Garcia-Marquez.  Only the use of spectral evidence is hardly limited to Brazil.

On January 23, 1897, Zona Shue was found dead in her home in Greenbrier County, down along the border with Virginia.  Suspicion almost immediately fell on Zona's husand, Erasmus (or Edward, if you prefer), thanks to his taking care of the body for burial, rather than leaving the task to others in the community.  The doctor who pronounced Zona dead made only a cursory examination.  Nonetheless, Zona was buried, with the cause of death listed first as "everlasting faint," and then simply "childbirth."

Shortly after Zona was buried, her mother Mary Jane reported that her daughter's ghost appeared to her, described what a cruel and otherwise shitty guy Erasmus was, and that he had broken her neck, killing her.  Mary Jane wen to the prosecutor, who had the body exhumed and a proper autopsy (such as those things were in 1897) done.  Sure enough, Zona's neck had been broken.

Erasmus was charged with murder and, at trial, Mary Jane was the main witness for the state.  In a clever bit of trial strategy, the prosecutor stayed away from the ghost stuff, but the defense attorney cross examined her about it anyway, allowing the jury to hear the story in all its glory.  Erasmus was convicted of murder and escaped a lynch mob, only to die in the Moundsville penitentiary a few years later.

Which just goes to show that woo, and its ability to seep into what should be deadly serious matters, knows no boundaries.  And it's pretty funny.

* The rules of evidence aren't necessarily based on modern psychological science or the evidence of fairly routine false confessions.