May 22, 2014

Coming Soon to a Skull Near You!

In the year 3000 . . .

Fry: So you're telling me they broadcast commercials into people's dreams?
Leela: Of course.
* * *
Fry: That's awful. It's like brainwashing.
Leela: Didn't you have ads in the 20th century?
Fry: Well, sure, but not in our dreams. Only on TV and radio. And in magazines and movies and at ball games, on buses and milk cartons and T-shirts and bananas and written on the sky. But not in dreams. No, sir-ee!
Ah, Fry, if only you hadn't frozen yourself through the 21st century, for in this amusing/disturbing post over at the Volokh Conspiracy, I see a whole new avenue of brain manipulation advertising just around the corner.

Consider the case of Mr. B (no relation - he's Dutch), who suffered from anxiety disorders and OCD for more than four decades.  He was treated with something called deep brain stimulation or DBS.  According to Wikipedia, DBS is:
a surgical treatment involving the implantation of a medical device called a brain pacemaker, which sends electrical impulses to specific parts of the brain.
Okay.  While it seems to work, its "underlying principles and mechanisms are still not clear" and it "directly changes brain activity in a controlled manner."  In other words, not something to be undertaken lightly.  It also seems like the kind of thing - changing brain activity - that might have some interesting side effects.

Which is what happened to Mr. B:
Mr. B., had never been a huge music lover. His musical taste was broad, covering Dutch-language songs, the Beatles and the Rolling Stones, with a preference for the last named. While music did not occupy an important position in his live, his taste in music had always been very fixed and his preferences stayed the same throughout decades.
On average, a half year after DBS surgery, Mr. B. stated that he was turning into a Johnny Cash fan. He had been listening to the radio, when he coincidentally heard 'Ring of Fire' of the Country and Western singer and experienced that he was deeply affected by the song. Mr. B. started to listen to more songs of Johnny Cash and noticed that he was deeply moved by the raw and low-pitched voice of the singer. Moreover, he experienced that he preferred the performance of the songs in the Seventies and Eighties, due to the fullness of the voice of the older Johnny Cash in that period. His favorite songs, 'Folsom prison blues', 'Ring of fire' and 'Sunday morning coming down' had a certain rhythm with a fast tempo in common that moved him.
It would be hard to oversell just how much Mr. B is fallen under the spell of the Man In Black.  He bought all his albums and videos.  When he listens to the songs Mr. B "feels like he finds himself in a movie in which he plays the hero's part."  Mr. B also claims that "there is a Johnny Cash song for every emotion and every situation."

In other words, he's like a 10-year old girl who just discovered Justin Beiber.  Perhaps the brain zapping went a bit too far?  At least, it appears, the result isn't permanent - if the gizmo starts to malfunction, Mr. B forsakes Johnny and falls back into the arms of those other, lesser musicians.

The good news, of course, is that Mr. B appears to be cured of problems that have plagued him for his entire life and the side effect of a thrilling new cultural obsession seems like a small price to pay.  But let's go further - if we can change a person's musical tastes by zapping a certain area of the brain, then how long before advertisers are trying to do it?

Because you know, like Fry learned, if there's a way to jam an ad inside your brain, marketeers are going to make use of it.

May 21, 2014

Mummery With Purpose

I wrote the other day that one of the reasons I like doing appellate law is that I like dealing with a settled factual record.  You can challenge factual findings on appeal, of course, but the standard of review is very tough and you're not likely to prevail.  Which means that, once a fact is found by the trial court, it's pretty much a fact for all time, even when it doesn't reflect actual reality.  It leads to some difficult conversations with clients who don't always grasp (or want to grasp) the difference between "legal" facts and "real" facts.

The most important "legal" fact is the fact that, once convicted, you're guilty of the crime.  Even if you didn't really do it (see Alford pleas, for instance), for all the courts care, you're guilty.  It works in reverse, too - if you've been convicted, but that conviction is set aside and you're not retried, you're innocent, at least in the eyes of the law.  That's one reason that it bugs me when pro-death penalty people try to poke holes in exonerations by arguing that those folks aren't innocent, they just had their convictions overturned.  No conviction means legally innocent, dipshits.

Which is a circuitous way of getting to this article by Garrett Epps over at The Atlantic about the Supreme Court's recent decision in Navarette v. California.  The case arose when someone called 911 to report she had been run off the road by a particular pickup truck, giving a description that included the license plate number.  Officers found the truck, driving down the road, a while later and, without observing anything illegal or problematic, pulled the truck over, supposedly to make sure the driver wasn't drunk.  He wasn't drunk, but he was hauling a good amount of marijuana.  He tried, unsuccessfully, the suppress the marijuana as the fruit of an illegal stop.

The issue for the Supreme Court, therefore, was whether the tip to 911 provided enough evidence of wrongdoing to provide reasonable suspicion to support a stop.  In making that analysis, it's important that the Court figure out whether the tip was from a known informant or whether it was anonymous.  A tip from a known source who has proven to be reliable in the past is pretty much iron clad - it's going to provide reasonable suspicion.  An anonymous tip not so much.  In a case back in 2000, the Court held that an anonymous tip that does no more than identify a person and make a claim of illegal activity isn't enough to support reasonable suspicion.

So that distinction is kind of important, and it played a role in Navarette.  As Epps explains:
As it reached the Supreme Court, thus, Navarette was a case about anonymous 911 callers. But the 911 call in Navarette was not, in what for lack of a better word I will call fact, anonymous at all.

According to the record in the case, the caller gave the 911 operator her name. But at the outset of the trial, the prosecutor summoned the wrong 911 operator and wasn’t able to get the actual recording of the call into evidence. The case had to progress as if the call had been anonymous.

Epps gets the process right, but doesn't appreciate what it means.  He argues that judges "get to live in the land of 'conjecture or fiction.'"  He goes on:
The majority relies on the idea that anonymous tips won’t happen; in a case where one didn’t happen, is there really any basis to assess whether one will? The dissent says that we don’t know whether the caller in 'the present case' knew that her call wasn’t anonymous. Except, well, we do, since she, well, gave her name. So 'the present case surely' suggests none of the [parade of horribles] Scalia claims it does.

What Epps misses, willfully or otherwise, is that, legally speaking, the call was anonymous.  It doesn't matter what some out of court information tells us.  The prosecution has a burden of proving the reliability of a tip.  One way to do that is to show that it's not anonymous.  The prosecution failed to do so in this case, for whatever reason.  Therefore, it's an anonymous tip.  To treat it otherwise would allow the prosecution to shirk its burden and make its case easier.

Which is not to say that Epps doesn't make some good points.  He's correct that both the majority and dissent (a Thomas v. Scalia affair) need to do some mental gymnastics (or "legal mummery" - good phrase) to make their arguments because the tip is treated as anonymous, but that's par for the course.  What matters is who stuck the landing at the end of their routine?  On this one, it's Scalia.

Think of it in a sporting sense - replay after replay may show that that guy who just scored to knock your team out of the World Cup was offside, but the only reality that matters is that the linesman didn't call it.  Same thing in the game that is law - once something becomes a fact, reality takes a back seat.

May 20, 2014

A Shocking Litigation Strategy

When I was in law school I didn't plan to be an appellate specialist.  Hell, I didn't even know such beasts existed outside of a few big money firms where I would almost certainly not go to work.  I planned to be a litigator, to be the guy indignantly objecting in front of a jury, rather than the one calmly discussing the issue with a panel of judges months later.  But I've come to enjoy how appeals rely on a set universe of facts (for the most part) and are fairly predictable, at least when it comes to how arguments proceed.

I can confidently say that I will never experience anything like this while arguing before the Fourth Circuit.

A lawyer in Utah named Howarth was cross examining an expert witness, Dr. Meliopoulos.  It was, according to a court decision, an "aggressive" cross examination, which is one of those things that don't always come across on the cold written page of a transcript.  At some point, Howard handed the doc a pen, only it it wasn't actually a pen.  It was, as the court described it:
an electronic device disguised as a retractable pen, and Mr Howarth represented it to be a pen.
The court further described the device as one that:
is sold as a novelty item and is designed to give unsuspecting individuals an electric shock if they press the button to extend or retract the pen cartridge.
The product came with multiple warnings about health conditions, including that it was "not recommended" for those over 60 years of age.

Guess how old Dr. Meliopoulos is?  Over 60, at any rate.

Howarth proceeded to question the doctor in a way that required him to press the button and get shocked.  It's unclear why this was relevant to the proceedings although Above the Law has some more details:
Dr. Meliopoulos explained that a person wouldn’t even feel it if they completed the circuit on a 1.5 volt AAA battery. That prompted Howarth to say the following:
a. 'Sir, you just told the jury that if you completed the circuit with this AAA battery, you wouldn’t even feel it right?'
b. 'Sir, in this pen, I put a AAA battery. The circuit will be completed when you press the back of the pen. Would you like to see whether you can feel the AAA battery, Sir?'
c. '[g]o ahead and push the back of the pen and tell the jury whether you feel it or not.'
Meliopoulos complied, which he probably shouldn’t have. Because electric shock pens like this may run on 1.5 volt AAA batteries, but they also contain a transformer to convert the DC power of the battery to AC current. Delivering up to 750 volts. That is more than enough to kill someone with certain health conditions. Given that Dr. Meliopoulos is over 60, Howarth probably should have asked about his health before jolting him.
Even if it was relevant, being sneaky about it was probably the wrong way to go.

That's certainly what the court concluded.  It found that Howarth had displayed a "lack of candor to the tribunal," which is legalese for he bullshitted it, and that he battered Dr. Miliopoulos during his cross examination.  As a result, Howarth was prohibited form cross examining any more witnesses and forced to pay a $3000 fine.

I have a couple colleagues who had civil practices before they moved into a public defender office.  Without fail, they do not miss the chicanery and stubbornness that seems to rule the world of civil litigators.  Given the stories they've told, I'm not sure that Howarth is as much of an outlier as the court seems to indicate.

I guess I'll stick to the more refined world of appellate practice!

May 16, 2014

Friday Review: The City and the City

Think of a city. Now, think of another city, one nearby whose culture, economics, and general life are completely entwined with the first one. Your mind may go to someplace like Minnesota's "Twin Cities" or perhaps Cold War Berlin, but think a little harder. What if the two cities actually overlapped each other so they shared the same physical space.

That's the basic idea underlying The City and the City.

One day a dead woman's body is found in Besźel, a city state somewhere in southeast Europe. Besźel shares some of its physical location with another city state, Ul Qoma. In some areas the two cities overlap (are "crosshatched"), requiring the citizens of each to learn to "unsee" the evidence of the other. A street in Besźel may be the same as a street in Ul Qoma, but the drivers in each city navigate it differently. Movement from one city to the other is restricted to a single border checkpoint. Murder is one thing, but the most serious offense in either city is to breach - to cross over to the other without permission - a taboo enforced by a shadowy organization known, coincidentally (and somewhat confusingly), as Breach.

Needless to say, the death of the young woman - from neither Besźel or Ul Qoma - requires our hero, a Besźel detective named Borlú, to dive into the mysteries of the two cities and, ultimately, of Breach itself. In other words, he winds up questioning the very fabric of his reality. China Miéville does a great job getting inside Borlú's skull, showing both the ingrained importance he ascribes to avoiding breach and his growing suspicion that it's all a bit daft.

There is, potentially, another city involved in all this, a city between the cities called Orciny. The murder victim is fascinated with Orciny and, just maybe, finds evidence that it exists and that's what got her killed. Only we wind up learning that the reason she was killed was much more mundane - a corrupt politician in bed with outside business interests - and the whole Orciny thing was just a means to string her along.

Similarly, Miéville kind of does the same to the reader. His premise that is inherently fantastic - as in a fantasy literature sense - yet he takes it and deconstructs it. However amazing the co mingled lives of Besźel and Ul Qoma are, there is nothing supernatural about their relationship. The citizens in each city merely learn not to see citizens in the other. Our brains have a powerful ability to not see what we don't want to see, but once the illusion is over it's over for good. Hence why Borlú, who gets as close to truth as there is in these places, can never really go back. Even Breach itself, which begins as some kind of "other" presence (possibly alien) turns out to be a sort of NSA plus SHIELD organization on speed.

By the end of things, to be honest, I felt as jerked around by Miéville as the victim had been by her killers. The only difference is that I loved every minute of it.

The Details
The City and the City
by China Miéville
Published 2009
Winner Locus Award, Aurthur C. Clarke Award, World Fantasy Award, & Hugo Award (shared with The Windup Girl)

May 15, 2014

The Life and Afterlife of a Classic Case Study

Back in the 1990s, when echolyn had briefly (thankfully) broken up, keyboard player Chris Buzby formed a band that made a couple of albums chock full of fusion-tinted complex prog.*  The band was called finneus gauge, which, it became clear, was a transliteration of the name of one of the most famous accidental test cases in neurological history.

Phineas Gage was an explosives guy in antebellum New England.  The tools of his trade were gunpowder and a 3.5 foot steel rod he used to tamp it (and other materials) into a hole in preparation for blasting.  The rod weighed more than 13 pounds and tapered to a point at one end.

He and his crew had been hired to blast some rock in Vermont in 1848 when, on on fall afternoon, this happened:
Gage’s crew members were loading some busted rock onto a cart, and they apparently distracted him. Accounts differ about what happened after Gage turned his head. One says Gage tried to tamp the gunpowder down with his head still turned, and scraped his iron against the side of the hole, creating a spark. Another says Gage’s assistant (perhaps also distracted) failed to pour the sand in, and when Gage turned back, he smashed the rod down hard, thinking he was packing inert material. Regardless, a spark shot out somewhere in the dark cavity, igniting the gunpowder, and the tamping iron rocketed upward.
The iron entered Gage’s head point-first, striking below the left cheekbone. It destroyed an upper molar, passed behind his left eye, and tore into the underbelly of his brain’s left frontal lobe. It then plowed through the top of his skull, exiting near the midline, just behind where his hairline started. After parabola-ing upward—one report claimed it whistled as it flew—the rod landed 25 yards away and stuck upright in the dirt, mumblety-peg-style. Witnesses described it as streaked with red and greasy to the touch, from fatty brain tissue.
What makes Gage's story so compelling is that not only did he survive the injury, he never even lost consciousness.  But, surely, the 13-pound hunk of metal that flew through his skull and brain must have had some impact on him, right?

As this article by Sam Kean at Slate points out, it's not altogether certain.  Over the years, the perception of Gage's life after his initial recovery has changed.  If Paul Simon's right that "every generation throws a hero up the pop charts," then, similarly, every generation interprets Gage for their own purposes.

Part of the problem is that there is precious little information about Gage's life, at least reliable information.  As the piece points out, the first news article about Gage contained an minor error (about the size of the rod), which seems to be a harbinger of things to come.

For instance, there were only two medical reports made about Gage, the second of which was by a doc at Harvard Medical School, but it didn't contain a lot about his actual behavior.  At the time, doctors thought that the part of the brain that got blasted by the rod wasn't all that important:
Frustratingly, Harlow limited his discussion of Gage’s mental status to a few hundred words, but he does make it clear that Gage changed—somehow. Although resolute before the accident, Harlow says Gage was now capricious, and no sooner made a plan than dropped it for another scheme. Although deferential to people’s wishes before, Gage now chafed at any restraint on his desires. Although a 'smart, shrewd businessman' before, Gage now lacked money sense. And although courteous and reverent before, Gage was now 'fitful [and] irreverent, indulging at times in the grossest profanity.' Harlow summed up Gage’s personality changes by saying, 'the equilibrium ... between his intellectual faculties and his animal propensities seems to have been destroyed.' More pithily, friends said that Gage 'was no longer Gage.'
Gage lost his job and wound up as a travelling curiosity.  Until, it seems, he went to Chile, found work as a coach driver, and generally lived an ordinary life.  It's unclear from the record whether he underwent a sudden shift brought about by the accident or if he, perhaps slowly, returned to normal.  Part of the problem is trying to make too much out of a sparse factual record:
People butcher history all the time, of course, for various reasons. But something distinct seems to have happened with Gage. Macmillan calls it 'scientific license.' 'When you look at the stories told about Phineas,' he says, 'you get the impression that [scientists] are indulging in something like poetic license—to make the story more vivid, to make it fit in with their preconceptions.' Science historian Douglas Allchin has noted the power of preconceptions as well: 'While the stories [in science] are all about history—events that happened,' Allchin writes, 'they sometimes drift into stories of what ‘should’ have happened.'
With Gage, what scientists think 'should' have happened is colored by their knowledge of modern patients. Prefrontal lobe damage is associated with a subsequent slightly higher rate of criminal and antisocial behavior. Even if people don’t sink that low, many do change in unnerving ways: They urinate in public now, blow stop signs, mock people’s deformities to their faces, or abandon a baby to watch television. It’s probably inevitable, Macmillan says, that such powerful anecdotes influence how scientists view Gage in retrospect: 'They do see a patient and say, 'Ah, he’s like what Phineas Gage was supposed to be like.' ' To be clear, Harlow never reports anything criminal or blatantly unhinged about Gage’s conduct. But if you’re an expert on brain damage, scientific license might tempt you to read between the lines and extrapolate from 'gross profanity' and 'animal passions' to seedier behavior.
If repeated often enough, such stories acquire an air of truthiness.
The whole article is fascinating.  Kean even traces the history of the rod itself, which now resides in a display case along with Gage's skull!  Go check it out.

* Seriously, they're worth tracking down, particularly the debut, more once more.  And I don't just say that because the band used a blurb from my review in its advertising.

May 13, 2014

Some Thoughts on Town of Greece

Last week the Supreme Court decided the Town of Greece case, in which it blessed the appropriateness of regular sectarian prayer during city council meetings.  I'll not go over all the details here, but rather point folks to good writes ups here and here (via) that explain what the holding was and how the majority got there.  I do have a few additional thoughts, however.

Given that everybody on the Court accepts the continuing validity of the Marsh decision, which approved of an opening prayer in a state legislature, the majority didn't have far to go to reach the same conclusion here.  That was partly due to the plaintiffs themselves.  Per the majority, this was their goal in bringing suit:
They did not seek an end to the prayer practice, but rather requested an injunction that would limit the town to 'inclusive and ecumencial' prayers that referred only to a 'generic God' and would not associate the government with any one faith or belief.
In light of that litigation strategy, I think it was doomed from the start.  Reasonable compromise may be an effective political strategy (although see), but rarely a legal one.  Compared to what the plaintiffs were asking for, what the town of Greece was already doing wasn't all that different.  At most, it was a difference in degree, not in kind.  Hard to force a court to see the injustice in allowing the status quo to continue.

Having said that, I think Kagan does a good job of showing how the situation in town of Greece was really quite different from Marsh and provided a basis to come to a different conclusion.  Unlike Marsh where, by the prayer defenders' own argument, the prayers at issue were directed only at legislators (and where it was changed in response to a single objection from a Jewish legislator), the context of the town of Greece's prayers were as part of, and prelude to, proceedings in which citizens directly interact with their government.  As she put it in her introduction:
Yet our Constitution makes a commitment still more remarkable— that however those individuals worship, they will count as full and equal American citizens. A Christian, a Jew, a Muslim (and so forth)—each stands in the same relationship with her country, with her state and local communities, and with every level and body of government. So that when each person performs the duties or seeks the benefits of citizenship, she does so not as an adherent to one or another religion, but simply as an American.
Note, however, that in her paean to inclusiveness, Kagan skips over/ignores the atheists, agnostics, or other folks who simply aren't religious.  It's an effective reminded that, for all the various religious squabbles that happen in this country, we nonbelievers aren't even considered in most instances.  Kagan has beautifully written about the need for the government not indulge both country and western, but leaves out any mention of the techno jazz trip-hop folks.  And so it goes.

I would have joined Kagan's opinion.  Actually, I'd probably gone all liberal Thomas and write a separate opinion going back to the underlying law and calling it out for being wrong.  Having said that, I think the space between the majority and dissent in this case is pretty tight.  I also think the knock-on effects of the ruling are pretty obvious.  Already we've had the irreligious and minority religious folks chomping at the bit to be included, while at least one Christian in a position of authority has decided to exclude anybody he doesn't like.  This is what happens when we turn regular business meetings into places of worship.

One thing that I find odd about Marsh, and the majority opinion on which it was based, is that it rests heavily on the practice of the initial Congress in having opening prayers.  I understand the appeal of looking at what the Founding Fathers did, but they weren't great about following their own constitutional commands.  How else do you explain the Alien and Sedition Acts, which criminalized dissenting political views?  As Justice Brennan put it in a book, “the ink had barely dried on the First Amendment” when Congress passed those acts.  Those acts were so repugnant to a modern understanding of the First Amendment that the Supreme Court recognized that:
[a]lthough the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history.
Politics happens and it has always happened.  Looking to the behavior of elected officials as a guide to our higher Constitutional principles is a fool's errand.

While it's important to note that the plaintiffs in Town of Greece weren't trying to stop the prayers, one of the plaintiffs was (so I've read) an atheist.  I sometimes see, particularly in Facebook discussions, Christians who wonder (sarcastically, I assume) why atheists get so "scared" about things like this when they don't really believe in God anyway.  Speaking only for myself, atheists aren't "scared" about the content of prayers themselves, but we are concerned about the power of the state being co-opted by religious groups.  We're angry that the First Amendment seems to mean so little in such situations.

And the harm suffered goes beyond mere hurt feelings:
the harm is that the legal relationship between a government and its citizens has been altered, so that minorities now stand in relation to government as minorities, rather than simply as Americans. Government prayer renders them separate members of the political community, regardless of how they feel subjectively. Justice Kagan is careful about this in her dissent. Every time she describes the harm, she says that citizens of Greece “become partly defined by their creed,” or that the town’s prayer 'alters a dissenting citizen’s relationship with her government,' or that the member of a minority faith 'becomes a different type of citizen ... she stands at a remove, based solely on her religion, from her fellow citizens and from her government.' Constitutional harm of this type is not about the subjective feelings of sensitive minorities, and it is not something that can be avoided by desensitizing them.
Kagan goes through several hypotheticals where a non-participant in the prayer then has to turn around and ask the governing body to take some action on their behalf.  There are reasons we'd never allow a trial to be begun with a prayer, lest any of the parties feel they were behind the theological 8-ball from the very beginning.  Why should a town council meeting be different?

At bottom, what we nonbelievers can't quite figure out is what the purpose of these prayers are.  Why start a business meeting with a plea to the almighty?  Here's what Kennedy says it's for:
As practiced by Congress since the framing of the Constitution, legislative prayer lends gravity to public business, reminds lawmakers to transcend petty differences in pursuit of a higher purpose, and expresses a common aspiration to a just and peaceful society.
If that's the goal, then I think we can safely conclude that these kinds of prayers are empty exercises.

Which means, in the end, this might all be a bunch of sound and fury (with the requisite helping of idiots) signifying not an awful lot.  I hope so.

May 9, 2014

Friday Review: ROSFest 2014

Last weekend I headed off to the rolling hills of eastern Pennsylvania for my fourth trek to the Rites of Spring Festival, aka ROSFest.  Held annually at the lovely Majestic Theater in Gettysburg, the fest was celebrating its tenth anniversary, having developed, arguably, into the premier progressive rock festival in the United States.  All and all, I didn't find this year's fest to be as good as years past, but it was still a great weekend filled with cool music.

Which, for a moment, I thought I was going to be able to hear in my hotel room.  The Gettysburg Hotel, built in 1797, sits across a small alley from the theater.  What I didn't realize until this year is that the hotel actually extends over the alley.  See for yourself:

That's the Majestic marquee jutting out from below my window.

But enough about that - how were the tunes?

First up on Friday was Clepsydra, from Switzerland, who would be the first of three bread-and-butter neo-prog bands for the weekend.  Active in the 1990s, they have only recently reformed and had done a few shows in Europe.  To judge by their Facebook posts during the run up to the fest, they were completely stoked to open ROSFest.  Their main distinction from the rest of the neo crowd this year was vocalist Aluisio Maggini, who is apparently from the Italian speaking part of Switzerland.  His voice and English delivery reminded me of Italian bands like PFM or Banco - not a bad thing!  Overall, Clepsydra were a good, solid way to start off the festival, particularly if you like late Fish-era Marillion.

The Friday headliner was Caravan, one of the great bands of the 1970s and an originator of the Canterbury school of prog.  Since I'd never seen any of the 70s giants live, I was pretty excited, but also a bit worried.  Were they still up to it, after all these years?  Holy hell, were they ever!  They absolutely ripped the roof off the place.  MVP for the band was Geoffrey Richardson, who, in addition to being the main audience conduit, played viola, guitar, flute, penny whistle, and spoons.  Electric spoons!  It is progressive rock, after all.  While I was a little disappointed they didn't do more tracks from a couple of my favorite albums, I appreciated them playing a lot of their new album.  A highlight of the weekend, to be certain.

The weekend split kind of oddly for me this year.  I knew something about nearly all the Saturday bands, but almost nothing about Sunday's.  Would familiarity or surprise work better?

The closest thing to a surprise on Saturday was the opening band, Elephants of Scotland (despite the name, they're from Vermont).  They released their second album earlier this year and I had listened to some YouTube clips, so I had some idea of what to expect.  They didn't disappoint, playing a sometimes heavy, Rush-like kind of symphonic prog.  Good tunes and great playing all around (lots of juicy keyboard bits, always a good thing).  Their downfall, in my opinion, were the vocals.  Lead vocals were shared by the three guys not playing drums, but none of them really have lead vocalist chops.  Their harmonies sounded really good, but I think the band would benefit from a dedicated front man.  Based on some other reviews I've read, I'm not alone in thinking that.  Nonetheless, good stuff and a great kick off to the day.

Thank You Scientist hails from New Jersey and was pulling off a kind of festival double - they emerged onto the scene last year thanks to a spot at ProgDay.  That's why I had their album well in advance of the festival.  I'm glad I did, because it prepped me for their very frenetic, high energy style.  It's a lot of fun, but it's a little wearying over the course of 90 minutes.  The band stands out thanks to some unusual instrumentation - drums, guitar, bass, violin, trumpet, and tenor sax, plus a bearded lead vocalist who prowled around the stage.  They were the closest thing to "weird" at ROSFest this year and the audience embraced them, bringing them back for an honest-to-goodness encore (a riffy version of "I Am the Walrus").  Did I mention that Fantastic Planet played behind them the whole time?  Trippy, man.

Sound of Contact is a project built around drummer/vocalist Simon Collins.  You may know of his father, Phil, of Genesis fame.  Sound of Contact was actually supposed to play ProgDay last year, but their proposed tour fell through.  Now they're out on the road touring their album, Dimensionaut, which they performed in full, front to back, at ROSFest.  I'll be honest, the album hasn't really done anything for me and the live performance didn't do anything, either.  Collins is a decent enough drummer and singer, but the music is too often mush, ballady AOR kind of stuff.  If the album had Phil's name on it, I think the prog community would have panned it, but, for some reason, it's been embraced by lots of folks (including the two women in the front row giving Collins the rock star treatment).  To each his or her own, I guess.

Sweden's Beardfish is another band that broke into the prog consciousness after appearing at ProgDay (albeit several years before Thank You Scientist).  I know that, after reading about that performance, I immediately went out and grabbed The Sane Day, their then-current album.  I also bought their next three albums sound unheard.  Then . . . something happened.  For whatever reason, the furious love I had for this band waned.  Would a headlining set at ROSFest rekindle the fire?  Sort of.  The band, led by the multi-talented Rikard Sjöblom, put on a great show, are great players, and work through some really interesting music.  Nonetheless, I found myself more interested in the old stuff I knew than the new stuff.  It's not much different, but maybe that's the issue?  I can hardly complain, however, as they trotted out "Sleeping In Traffic" in all its 35-minute glory.  A good set and good way to end the day.

So, this being Sunday, I knew next to nothing about these bands coming into the day.  I was hoping one of them might turn out to be a real revelation, along the lines of Sanguine Hum from 2012, but it didn't really turn out that way.

Fright Pig is . . . well, I'm not exactly sure what Fright Pig is, to be honest.  I'm not sure it's a "band," in the traditional sense.  Assembled in Gettysburg for its first ever live performance (a tough assignment, given the Church of Prog time slot), the band itself was composed of two keyboard players from New York (one of whom was the main writer/guru) and a bunch of other players with ties to the Berkley School in Boston, but from all over the globe - Canada, Serbia, Belgium, Mexico, and the United States.  Given the ad hoc quality of the group, their performance (also playing their one album stem to stern) was impressive.  Sadly, I didn't like it all that much.  The music is very riffy and very flashy.  The audience conduit keyboard player (not the same as the guru) praised the Serbian guitar player as playing "as many notes as ants on a Tennessee anthill."  That's not really my thing.  It also didn't help that the group didn't have enough original material to fill their set and ended with lots of not-particularly-proggy covers.  So, a disappointment, but I'll not for the record that I seem to be definitely in the minority on this one.

Red Sand, from Canada (Quebec, if I'm not mistaken), was the second of the neo trio for the fest.  They certainly looked the part.  Bass player arrived with pedals (the only one of the weekend, I think) and a doubleneck, while the vocalist engaged in some patented Gabriel/Fish-inspired theatrics.  It all worked well enough, but of the neo bands for this year I thought they were the weakest.  The longer tracks didn't hang together very well.

I was prepared not to light Subsignal (from Germany).  I had convinced myself that they were a prog metal band and that's not really my thing.  So I was pleasantly surprised by how they actually sounded.  To me, they are a good, heavy, melodic rock band with a keyboard player.  Not overly proggy, but pretty damned good at what they do.  I also thought vocalist Arno Menses won the award for best crowd interactions ("you win a refrigerator!") and had a great voice to boot.  In fact, I'm disappointed that the Subsignal album I picked up afterward (their latest, Paraiso) isn't nearly as good as they were live.  Oh, well.

Collage emerged from Poland in the 1990s, along with previous ROSFest headliners Quidam, as part of the prog revival of that decade.  Unlike Quidam, they split up in 1996.  Guitarist Mirek Gil was at ROSFest last year with his current band, Believe, and the fest organizer asked him about Collage ever reforming.  In spite of initial misgivings, the reunion happened and Collage (with Believe's lead vocalist filling in) came back together specifically for the purpose of being the coda on this year's edition of ROSFest.  It was well worth the effort.  Gil is a fantastic guitarist and the Collage material suits him perfectly.  They were, by far, the best of the neo bunch and an excellent cap on the festival.

Overall, this year's ROSFest had a pair of great headline performances and a bunch of others that ran from really good to just all right.  That's a pretty good batting average, even if I didn't walk out of the theater having been awakened to an exciting new musical obsession.

Hey, there's always next year!

May 7, 2014

Seeing The Great War

We're on the verge of a sad centennial. Late next month will mark the 100th anniversary of the assassination of Archduke Franz Ferdinand of Austria, heir to the throne of the Austro-Hungarian empire. That sparked a conflagration that stretched around the globe, killed millions, and earned the hopeful (but false) title of the War to End All Wars.

The In Focus feature of The Atlantic's blog - which should be a regular stop, it's really well done - is digging into the photographic history of World War I. It's begun a 10-part series covering the war, with a new part posting every Sunday.

This past Sunday was the second installment, which focused on the earlier years of the war on the Western Front. The images drive home the utter destruction of the first truly modern war:

That's what was left of a small town in France that changed hands countless times over four years (via the National Library of Scotland).   Go check out the rest and ponder what we, as a species, did to each other for four long years

As a postscript, here's a wonderful IQ song about a soldier who survived the war and returned decades later.  Powerful stuff.

Returning Like May Flowers

How's that for a metaphor, eh?

Hey, everybody - did ya' miss me?  It's been one of those months where I ran out of worthwhile things to say (it happens), found other things to do with my time, and slowly spiraled into not blogging for a month.  Silly me - I'll try to do better next time.

I have not been idle, lest the quiet blog suggest otherwise.  I finished the first draft of The Endless Hills, which is the sequel to The Water Road (the second book in a planned trilogy, of course).  That one has been put aside for now, to molder a little bit until I can come back with fresh eyes and tear it apart.

As for The Water Road itself, it's ready to be loosed upon the world.  Sort of.  I've done all I can do with it and am now polishing a query letter (email, actually) to send to literary agents in hopes of finding someone to represent it and me.  It's a frustrating process, but one that, I hope, will have a happy ending.

Another of my NaNoWriMo projects, Moore Hollow (which involves zombies, politics, and family strife), is at the same point in the process.  That is, I've just about done all I can do with it, save for one final round of critiquing.  Once that's over, I plan to shop it directly to some smaller (probably regional) publishers.  With any luck, it will find a home sometime soon.

But, anyway, that was then, this is now.  On to new things!