A couple of weeks ago it was announced that award winning director Darren Aronofsky has been tapped to adopt Margaret Atwood's MaddAddam trilogy for HBO. Seems like a good choice. After all, Aronofsky's last movie was about a petulant being who nearly wipes all life from the Earth because he gets pissed off. Basically, the MaddAddam trilogy is the same thing.
Which is not to say Aronofsky won't have his hands full.
Most literary trilogies - most sci-fi (and it is, dear reader, regardless of what Atwood would tell you) ones, certainly - tell linear stories. The story starts in the first volume, continues in the second, and then is resolved in the third. MaddAddam doesn't play the same game. Yes, there is a continuous story being told, one of a post-apocalyptic world and the few people left to deal with it. But the focus of each novel is on the past, not the present, as we learn just how this world came to be the way it is. Which is good, because the flashbacks are, generally, much more interesting than what's going on in the "present."
Book one, Oryx and Crake, begins with Snowman (aka Jimmy), a post-apocalyptic hermit who lives nearby some very strange nouveau humans, to whom he is a kind of protector and prophet. Through flashbacks, we learn that Snowman was friends with Crake (aka Glenn), an all around genius. They were both in love with Oryx, who may or may not have been a girl they first discovered via only kiddy porn (See? I told you the flashbacks were more interesting). Crake's genius, as it happens, is tempered by his disdain for what humans have do to the planet, so he uses his skills to (a) engineer a virus that wipes most of humanity off the planet and (b) engineer the nouveau humans, called Crakers.
The second volume, The Year of the Flood, focuses on two women who survive the virus, Toby and Ren. Their back stories intersect with each other via a environmentalist cult called God's Gardeners (they also intersect with Jimmy and Glenn, as it happens). The Gardeners preach about the need to return to nature and of the coming "waterless flood," which will wipe humanity off the map (thus allowing the big bad from Aronofsky's movie off the hook after promising no more floods). This book is interrupted, in numerous places, for sermons from the Gardener's founder, Adam One, and songs of worship. For the audiobook, the songs are actually performed, which was neat at first, but quickly got old. If we need hippified love-Gaia kind of tunes, couldn't they have called up Steve Hilliage?
The final volume, MaddAddam, picks up where the first two converge and goes forward from there, but also backwards. This one focuses on Zeb and his brother, Adam (aka Adam One), and their role in the waterless flood. This is all told, in flashback (naturally), to Toby, who then has the unenviable task of translating it for the Crakers, who continue to want to know how they came to be.
With any trilogy, there's a sense of diminishing returns. No sequel, no matter how skillfully done, can replicate the fun of being thrown into an entirely new world that you get from the first volume. The MaddAddam trilogy suffers from this more than others, thanks to its format. Each book essentially tells flashback versions of the same story, but from different points of view. It's more effective than you might think, but by the time we dive into Zeb's story it's less a matter of learning new information than finding out how characters we've come to know from earlier volumes fit into the narrative.
The "old" world that Atwood fleshes out in the flashbacks is fascinating, chilling, and hits just a little too close to home. Corporations have become supreme, not by buying into government (like they do now), but by setting up their own heavily armed fiefdoms. Those who don't work for the corps are stuck in violence and poverty plagued "pleeblands." The seas have risen (New York City is gone, replaced by a new version in Jersey) and various kinds of genetically grown critters - hybrids of, say, lions and lambs (it's a religious thing) - roam the earth. I won't go so far as to say that Atwood sets up a world that's worth destroying, but that argument could be made.
The only thing in the new world that's half as interesting are the Crakers, the nouveau humans created by Crake as the replacements for our kind of humans. Made with a heavy dose of genetic engineering, they're vegetarians (the graze), run around naked but can stand the warming sun, and mate only every so often in weird rituals that involve gang bangs and waving blue penises. Unfortunately, the Crakers are also exceptionally annoying, because Crake did not bless them with a mind as advanced as our own. The interactions between the surviving humans and the Crakers are sometimes amusing, but often are only annoying.
The dullness of the new world is most evident in the closing volume. For one thing, Atwood lets Toby, a character who has survived on her own for months and was clearly a strong person, devolve into an older variant of a moody high schooler. She spends entirely too much of our time worrying about whether Zeb's out fucking other women, based purely on speculation, and, generally, becomes a very passive personality. I'll assume Atwood had a reason for doing this, maybe some comment on the way we fall into old communal habits even in the strangest of circumstances, but it was hard to take.
Similarly, there's very little threat to the characters in the new world. Since this was a biological apocalypse there's lots of spare materials to use for survival. Yes, life for these characters is harder than it was before, but I never had a sense that they were truly eking out a survival (nobody succumbs to a mundane injury/illness, for example). One potential menace from the earlier books, creatures called "pigoons," loose their power to frighten. Originally created to produce spare organs for humans, they're the most advanced sci-fi swine since the piggies of Speaker for the Dead. But, as it turns out, the Crakers can talk to them and a deal can be struck to keep everybody safe. Bleh.
That leaves as big bads for the humans, Crakers, and pigoons to face a pair of black-hat killers, refugees of a pre-flood punishment game called painball. Painball is so ruthless and violent that anyone who survives it is turned into a heartless psychopath bent on rape and murder. It makes them scary, but it doesn't make them interesting. For one thing, it's never clear why Toby and the group see the painballers as such a threat - they have them outnumbered and outgunned, so why don't the painballers just go elsewhere? For another thing, the group of survivors shows little rational thought when it comes to what should be done to the painballers, even worrying that their offspring might be murderous psychopaths (which makes no kind of fucking sense). The final big confrontation is saved only by a nice switch in narration that gives the whole thing a distant, mythical gloss.
If that makes it sound like I'm down on the whole trilogy, it shouldn't. Atwood's style and way with prose goes an awful long way to making the entire thing worth reading. It's dark territory she's exploring, but there are bursts of humor and satire that stand out. The only thing that really goes wrong is that the entire enterprise runs out of steam in the end. That stings (see the US collapse against Portugal last Sunday), but it doesn't invalidate everything else.
But it does mean that Aronofsky has quite a bit of work ahead of him.
The Details
------------------------
All by Margaret Atwood
Oryx and Crake
Published 2003
The Year of the Flood
Published 2009
MaddAddam
Published 2013
June 27, 2014
June 25, 2014
I Will Never Win Elected Office
The fact that I have no future in politics is not something I spend a lot of time crying about. Just about any position I have on things disqualifies me in the eyes of most of the American electorate. I'm an atheist. I favor the legalization of drugs. I'm against the death penalty. I couldn't go through the motions of wearing the flag pin 24/7, engage in the religious rites that permeate public political life, or step up to explain how my team is right today when I thought the other team was wrong for doing the same thing during the last administration. Plus, I'd probably say "fuck" on TV and that would be it.
Nonetheless, it disturbs me that, in addition to all that, people may want to hold the job I do against me. Since, you know, it's required by the Constitution and all.
Recently there's been an upsurge in political rhetoric going after politicians for their prior lives as lawyers, particularly when they've done criminal defense work. Over at Volokh Conspiracy, Jonathan Adler, who's been on this issue for a while, discusses the latest flap, involving Hillary Clinton's work as appointed counsel for a rapist way back when (for more examples see here). Adler, who's unlikely to be a Hillary voter, cuts right to it:
That is, unless you want to go after the Sixth Amendment itself. Counsel for someone accused of a crime is a cherished right, one that was important enough to go in the Bill of Rights, after all. And while the concept of public defenders and required appointed counsel are of more recent vintage, the idea that everyone, even the most despised, deserve representation has deep roots in this country.
On March 5, 1770, an angry crowd in Boston surrounded a British soldier. He was eventually joined by eight others, who then fired into the crowd, killing five and wounding six. Most people know about that - it's the Boston Massacre, one of the foundational events of the American Revolution.
What fewer people know is that the British soldiers were put on trial. Given the furor over the shootings and the general anti-British sentiment in the colonies, it was hard to find a lawyer to defend them. Finally, a local lawyer named John Adams agreed to defend them. He obtained a good result - six of the soldiers were acquitted, while two others were convicted only of manslaughter. Adams did not shrink from his representation, saying three years after:
* Along with other "inspirational" quotes from Frank Zappa, Matt Groening, Dick Neely, and King Crimson!
Nonetheless, it disturbs me that, in addition to all that, people may want to hold the job I do against me. Since, you know, it's required by the Constitution and all.
Recently there's been an upsurge in political rhetoric going after politicians for their prior lives as lawyers, particularly when they've done criminal defense work. Over at Volokh Conspiracy, Jonathan Adler, who's been on this issue for a while, discusses the latest flap, involving Hillary Clinton's work as appointed counsel for a rapist way back when (for more examples see here). Adler, who's unlikely to be a Hillary voter, cuts right to it:
What should we make of this story? Perhaps nothing more than that Hillary Clinton represented someone in need and fulfilled her duty as a member of the bar to provide a zealous defense of her client. This is not something for which she should be attacked. We are all the worse off if the message sent to young lawyers is that representing guilty or unpopular clients is likely to be a political liability down the road. Ably and effectively representing a criminal defendant — even one you believe to be guilty — is not 'scummy' or inappropriate. Forcing the state to prove its case before it deprives an individual of their life, liberty or property is a noble endeavor. So while I think the story is newsworthy, I think most of the attacks on Clinton for this episode are misplaced, and a bit opportunistic. [Note that some attacking Clinton are also calling for more more due process protections for college students accused of rape.]He does point out that it's fair game to look into how someone represented criminal clients. That is, if she was unethical or broke the law herself, that's a problem. But so long as Hillary or anyone else did what criminal defense attorneys are supposed to do - zealously represent their clients - there's nothing to criticize.
That is, unless you want to go after the Sixth Amendment itself. Counsel for someone accused of a crime is a cherished right, one that was important enough to go in the Bill of Rights, after all. And while the concept of public defenders and required appointed counsel are of more recent vintage, the idea that everyone, even the most despised, deserve representation has deep roots in this country.
On March 5, 1770, an angry crowd in Boston surrounded a British soldier. He was eventually joined by eight others, who then fired into the crowd, killing five and wounding six. Most people know about that - it's the Boston Massacre, one of the foundational events of the American Revolution.
What fewer people know is that the British soldiers were put on trial. Given the furor over the shootings and the general anti-British sentiment in the colonies, it was hard to find a lawyer to defend them. Finally, a local lawyer named John Adams agreed to defend them. He obtained a good result - six of the soldiers were acquitted, while two others were convicted only of manslaughter. Adams did not shrink from his representation, saying three years after:
The Part I took in Defence of Cptn. Preston and the Soldiers, procured me Anxiety, and Obloquy enough. It was, however, one of the most gallant, generous, manly and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country. Judgment of Death against those Soldiers would have been as foul a Stain upon this Country as the Executions of the Quakers or Witches, anciently.I have the bolded portion of that quote hanging in my office.* It perfectly encapsulates what defense attorneys do. It didn't hurt Adams any - he went on to be president, after all. So, go after Hillary or whoever else based on their politics, not their long ago role as a criminal defense attorney. If it was good enough for John Adams, it's good enough for you, too.
* Along with other "inspirational" quotes from Frank Zappa, Matt Groening, Dick Neely, and King Crimson!
June 24, 2014
Play to Win, Be Happy With a Draw
In many ways, a dull 0-0 draw with Germany on Thursday is just what the United States needs. In one, other, quite significant way, it's precisely what the game in the United States doesn't need.
If you're new to the World Cup, you may wonder why, after days of games played at distinct times, with no overlap, we finish up the group stage with both final games in each group being played at the same time. The answer is simple - to keep teams in game A from knowing the result in game B and strategizing accordingly. In other words, FIFA wants to keep everybody playing full out down the last minute.
Alas, this is not merely a hypothetical concern.
In Spain in 1982, West Germany found itself in a group with Austria, Chile, and Algeria. Algeria stunned the Germans 2-1 in their opening match, before losing to Austria. Germany rebounded to pound Chile, 4-0. In its final group game, Algeria then knocked off Chile, 3-2. As a result, when Germany played Austria the next day, both teams knew that a particular result - a 1-0 Germany victory - would see them both through. So, this happened:
Of course, the situation in our group this year is that the Ghana-Portugal match being played at the same time we take on Germany is irrelevant if our game ends in a draw. That result, regardless of how badly the other teams maul each other, and Germany wins the group and we move on as the second-place team.
Almost since that scenario popped up Sunday evening, there's been talk of potential collusion. Mostly in jest, but still, there's a lot of grist for the mill. We have a German coach, for whom the current Germany coach served as an assistant. There are five German-American players on the US roster, some of whom suited up for Germany at youth levels. And, most importantly, if either team loses they open themselves up to elimination based on what happens between Portugal and Ghana.
Jurgen Klinsmann, of course, has poo-pooed the entire idea that some kind of arrangement might take place, as he must. Nor do I think there is one. In the modern world of media saturation I think such a thing would be impossible to pull off.
However, I worry about what the perception will be if, sometime in the second half of a listless 0-0 draw, everybody just starts to pack it in and be happy with what they already have. That soccer has draws is one of the regular complaints of the complainers in this country. It's hard to argue against a result like the one against Portugal on Sunday, where both teams played hard and things just happened to work out that way. On the other hand, not every draw is a thriller.
I kind of hope we don't get a thriller on Thursday. But I kind of hope we do. So long as, at the end of the day, we make it out of the Group of Death.
If you're new to the World Cup, you may wonder why, after days of games played at distinct times, with no overlap, we finish up the group stage with both final games in each group being played at the same time. The answer is simple - to keep teams in game A from knowing the result in game B and strategizing accordingly. In other words, FIFA wants to keep everybody playing full out down the last minute.
Alas, this is not merely a hypothetical concern.
In Spain in 1982, West Germany found itself in a group with Austria, Chile, and Algeria. Algeria stunned the Germans 2-1 in their opening match, before losing to Austria. Germany rebounded to pound Chile, 4-0. In its final group game, Algeria then knocked off Chile, 3-2. As a result, when Germany played Austria the next day, both teams knew that a particular result - a 1-0 Germany victory - would see them both through. So, this happened:
After only 10 minutes, Horst Hrubesch put West Germany in front, and then...nothing.
Neither side, understanding a 1-0 decision was mutually beneficial, mounted anything resembling an attack throughout the remainder of the match. The passes were lateral or backward and, tellingly, the tackles were soft between adversaries that would typically have gone at one another with venom.
'Fuera, Fuera!' ('Out, Out!') chanted the displeased spectators in Gijon, and the few Algerian supporters at El Molinon burned money in protest, according to ESPN FC.
At the final whistle the score remained 1-0 in what has since become known as the 'Anschluss of Gijon' . . .Thus, in 1986, the shift to both final games in a group being played at the same time.
Of course, the situation in our group this year is that the Ghana-Portugal match being played at the same time we take on Germany is irrelevant if our game ends in a draw. That result, regardless of how badly the other teams maul each other, and Germany wins the group and we move on as the second-place team.
Almost since that scenario popped up Sunday evening, there's been talk of potential collusion. Mostly in jest, but still, there's a lot of grist for the mill. We have a German coach, for whom the current Germany coach served as an assistant. There are five German-American players on the US roster, some of whom suited up for Germany at youth levels. And, most importantly, if either team loses they open themselves up to elimination based on what happens between Portugal and Ghana.
Jurgen Klinsmann, of course, has poo-pooed the entire idea that some kind of arrangement might take place, as he must. Nor do I think there is one. In the modern world of media saturation I think such a thing would be impossible to pull off.
However, I worry about what the perception will be if, sometime in the second half of a listless 0-0 draw, everybody just starts to pack it in and be happy with what they already have. That soccer has draws is one of the regular complaints of the complainers in this country. It's hard to argue against a result like the one against Portugal on Sunday, where both teams played hard and things just happened to work out that way. On the other hand, not every draw is a thriller.
I kind of hope we don't get a thriller on Thursday. But I kind of hope we do. So long as, at the end of the day, we make it out of the Group of Death.
June 10, 2014
Someone Gets Convicted Because of GM's Faulty Cars
But it's not who it should be.
In November 2004, Candice Anderson was driving along with her fiance, Gene Erikson, in Texas. There was a crash - the car veered off the road and hit a tree. Anderson was injured, Erikson was killed. Naturally, prosecution followed, as it does when someone dies:
Thankfully, Anderson didn't go to prison. Nonetheless she was coerced into doing 260 hours of community service for a crime she didn't commit. And, although this is coming out because Anderson is now suing GM, there appears to be little doubt where the fault really lies:
In November 2004, Candice Anderson was driving along with her fiance, Gene Erikson, in Texas. There was a crash - the car veered off the road and hit a tree. Anderson was injured, Erikson was killed. Naturally, prosecution followed, as it does when someone dies:
Because there were no skid marks, authorities believed Anderson was at fault and charged her with negligent homicide, according to the lawsuit. Believing she was to blame, she pleaded guilty and was sentenced to 5 years of deferred punishment and 260 hours of community service. She also was required to pay for Erikson's funeral and $3,500 in court costs . . ..Want to take a guess at what kind of car Anderson was driving? A 2004 Saturn Ion, one of the numerous GM models equipped with a defective ignition switch that's caused accidents killing (at least) 13 people over the years.
Thankfully, Anderson didn't go to prison. Nonetheless she was coerced into doing 260 hours of community service for a crime she didn't commit. And, although this is coming out because Anderson is now suing GM, there appears to be little doubt where the fault really lies:
The National Highway Traffic Safety Administration, the government's road safety watchdog, confirmed last week for Erickson's mother, Rhonda, that the crash was caused by the bad switchAnderson lived with the guilt of having caused the death of a loved one for years, not to mention the stigma of having been a convicted criminal. Hopefully, she'll get something out of GM, because it's unlikely anyone actually responsible for that crash will ever actually see the inside of a criminal courtroom.
June 5, 2014
Yes and No - Thoughts on Julian Green
There's been a lot of virtual ink spilled analysing and complaining about Jurgen Klinsmann's choices for the United States roster for the upcoming World Cup. If there's an axis around which most of it rotates, it's the absence of Landon Donovan and inclusion of Julian Green, as if the two are intimately linked. I don't think that's correct.
Writing over at Slate (which has ramped up its soccer coverage in advance of the World Cup), Jeremy Stahl breaks down the Donovan omission and rightly concludes that Klinsmann's decision on that front had nothing to do with the inclusion of Green:
Where I think Stahl goes wrong, however, is in arguing that Green should have made the 23-man roster at all.
Everything Stahl says about Green is right - he's a terrific prospect, has the endorsement of many top players and one of the hottest coaches. I'm certainly glad he chose the United States over Germany when it comes to international play. He may, indeed, be a special player. But, the fact is, he isn't there yet. Green's played a grand total of three minutes in a meaningful match for Bayern Munich. Whatever potential he has, he's still very much a work in progress.
To be fair to Stahl, his piece was apparently written before the US defeated Turkey on Sunday, a game in which Green made an appearance as a second half sub. The general impression following that game was that Green just doesn't have what it takes right now to contribute at the World Cup in 2014. If that's the case, it's a waste of a roster space that could have been used on somebody else (Sacha Kljestan? Joe Corona?) who might have something to give this year.
The "bring him in for future experience" argument doesn't hold water. Stahl mentions Theo Walcott who, as a 17-year old, was named to the England squad for the 2006 World Cup:
I don't think Klinsmann is pulling an Eriksson here. He's said he thinks Green can contribute. And if he was just investing in the future, the third goalkeeper spot would have gone to a young gun like Sean Johnson or Bill Hamid, rather than Nick Rimando. It would take a near Biblical catastrophe for Rimando to be called upon in Brazil, but if the worst actually occurs, don't you want someone who can step in and step up?
All this virtual gum flapping, of course, assumes that there was no deal made between Klinsmann and Green - choose the US and you go to the World Cup this year. There's been scuttlebutt to that effect and, hey, if true, we may not be Lannisters but we ought to pay our debts. But both Green and Klinsmann deny any kind of deal and I've got no reason to doubt their honesty.
It's more a question of judgement. On Green, I think Klinsmann has gotten it wrong, at least for 2014. Hopefully, they both prove me wrong in the next few weeks.
Writing over at Slate (which has ramped up its soccer coverage in advance of the World Cup), Jeremy Stahl breaks down the Donovan omission and rightly concludes that Klinsmann's decision on that front had nothing to do with the inclusion of Green:
Even if the 18-year-old Green had decided to take his talents to the Danube, Klinsmann still probably would have found a reason to cut Donovan from his World Cup squad. That decision seems to have been made largely on the basis of either personal animus, or some amorphous idea about 'moving on' or 'making the team his own.'
Julian Green is on the World Cup roster and Landon Donovan isn’t. But the former didn’t cause the latter. If Klinsmann didn’t have it out for Donovan, he would almost certainly have chosen to bring both men to Brazil.Everything I've read and heard indicates that Klinsmann sees Donovan as a forward, not a midfielder like Green. It's thus no more reasonable to talk about Green "taking" Donovan's spot than it is to say Tim Chandler did. On top of that, I think if one of our forwards went down injured in the next week that Donovan wouldn't even be the first choice replacement, given Terrence Boyd's form at the end of his season in Austria. Regardless, Stahl is perfectly correct that Green didn't bounce Donovan from the team.
Where I think Stahl goes wrong, however, is in arguing that Green should have made the 23-man roster at all.
Everything Stahl says about Green is right - he's a terrific prospect, has the endorsement of many top players and one of the hottest coaches. I'm certainly glad he chose the United States over Germany when it comes to international play. He may, indeed, be a special player. But, the fact is, he isn't there yet. Green's played a grand total of three minutes in a meaningful match for Bayern Munich. Whatever potential he has, he's still very much a work in progress.
To be fair to Stahl, his piece was apparently written before the US defeated Turkey on Sunday, a game in which Green made an appearance as a second half sub. The general impression following that game was that Green just doesn't have what it takes right now to contribute at the World Cup in 2014. If that's the case, it's a waste of a roster space that could have been used on somebody else (Sacha Kljestan? Joe Corona?) who might have something to give this year.
The "bring him in for future experience" argument doesn't hold water. Stahl mentions Theo Walcott who, as a 17-year old, was named to the England squad for the 2006 World Cup:
Walcott, an Arsenal player whose highest level of competition at the time was during a loan to Southampton in the English second division, didn’t play a minute in Germany. The decision to select Walcott in 2006 is viewed as one of former England manager Sven-Göran Eriksson’s greatest blunders.What's missing from Stahl's recitation is that England had injury issue with strikers during that Cup and Walcott's along for the ride status meant Eriksson had limited options in dealing with those injuries. The lesson learned from that situation is that every spot on the roster is important for the here and now, not as an investment in the future.
I don't think Klinsmann is pulling an Eriksson here. He's said he thinks Green can contribute. And if he was just investing in the future, the third goalkeeper spot would have gone to a young gun like Sean Johnson or Bill Hamid, rather than Nick Rimando. It would take a near Biblical catastrophe for Rimando to be called upon in Brazil, but if the worst actually occurs, don't you want someone who can step in and step up?
All this virtual gum flapping, of course, assumes that there was no deal made between Klinsmann and Green - choose the US and you go to the World Cup this year. There's been scuttlebutt to that effect and, hey, if true, we may not be Lannisters but we ought to pay our debts. But both Green and Klinsmann deny any kind of deal and I've got no reason to doubt their honesty.
It's more a question of judgement. On Green, I think Klinsmann has gotten it wrong, at least for 2014. Hopefully, they both prove me wrong in the next few weeks.
June 4, 2014
Why the Mummery Matters
A couple of weeks ago I took someone to task for criticizing the "legal mummery" involved in the Supreme Court deciding a case based on a particular record. The case at issue there involved one kind of mummery, but the fact is, the legal system is full of sound and fury that, often, signifies nothing. A few recent decisions makes the point.
Early last month, the Fourth Circuit dealt with a case where a prison inmate was charged with possessing two "homemade weapons" in his cell. On one item there was no dispute it was a weapon, but the defendant argued he didn't possess it. On the other, there was no dispute he possessed it, but the inmate argued it wasn't a weapon (it was a shoe repair tool). So, the trial court directed the jury to answer two questions: (1) was the first item a weapon? and (2) did the defendant possess the second item?
What it didn't do was ask the most important question - was the defendant guilty or not guilty on either count. This is a problem because, at the end of the day, that's the question the jury is supposed to answer.
The Fourth Circuit reversed the convictions (the jury answered "yes" to both questions), even after apply the harsh "plain error" standard of review (citations omitted):
Going further, in concluding that his error was one that, if left uncorrected, would impact the "fairness, integrity, or public reputation of judicial proceedings," concluded (citations omitted):
In other words, it doesn't matter if everybody in the room - including the jury! - thinks the evidence is overwhelming and the defendant is guilty, it doesn't matter unless the jury actually issues a verdict declaring him to be so. The mummery is important because the jury has a role to play and has to play it, even if the result is a foregone conclusion. Because sometimes, it won't be.
The Fifth Circuit confronted a similar situation, in which after the defendant took the stand at trial and basically confessed to the crime, the trial court told the jury to "go back and find the Defendant guilty." Not surprisingly, the Fifth Circuit reversed those convictions, too, for reasons similar to the Fourth's.
The Supreme Court encountered another kind of important mummery in a bizarre case out of Illinois.
The defendant was charged with various offenses (including the wonderfully vague "mob action" - presumably the opposite of "Love Action") and scheduled to go to trial in March 2009. Trial was repeatedly delayed, however, because the prosecution couldn't bring the victims of the alleged offenses in to testify. Finally, more than a year later, the trial court decided enough was enough, although it delayed the start of trial on that particular day as much as it could (and helpfully suggested that the prosecutor "might want to send the police out of find these two gentlemen").
But when it came time to start trial, the witnesses weren't there:
The issue for the Supreme Court arose when the state appealed and the defendant argued that the Double Jeopardy clause - which bars the prosecution from having repeated bites at the apple - precluded any retrial. Amazingly, the Illinois state courts agreed with the state that jeopardy hadn't attached because the state didn't actually participate in the trial once it started.
The Supreme Court rejected that conclusion in the harshest way possible - in a unanimous per curiam (meaning "by the court" - it was so easy nobody had to sign a name to it) opinion without even waiting for full briefing and oral argument. It reversed only on the cert pleadings - which happens, but is pretty rare.
It was so easy because this is one of those situations where there's a rule that says jeopardy attaches once a jury is sworn. If you get acquitted after that, you're home free. In fact, the Court held that there were "few if any rules of criminal procedure clearer" and the Illinois courts messed up by finding "anything other than a bright line when jeopardy attaches." As in the cases discussed above, whether the defendant actually did what he was accused of is irrelevant - he was acquitted. End of story, quite literally.
All of these cases show not only that there exists legal mummery in our criminal justice system, but that it relies upon it.
Early last month, the Fourth Circuit dealt with a case where a prison inmate was charged with possessing two "homemade weapons" in his cell. On one item there was no dispute it was a weapon, but the defendant argued he didn't possess it. On the other, there was no dispute he possessed it, but the inmate argued it wasn't a weapon (it was a shoe repair tool). So, the trial court directed the jury to answer two questions: (1) was the first item a weapon? and (2) did the defendant possess the second item?
What it didn't do was ask the most important question - was the defendant guilty or not guilty on either count. This is a problem because, at the end of the day, that's the question the jury is supposed to answer.
The Fourth Circuit reversed the convictions (the jury answered "yes" to both questions), even after apply the harsh "plain error" standard of review (citations omitted):
In the instant case, we do not hesitate to conclude that Appellant’s right to have a jury determine his guilt beyond a reasonable doubt was violated.
* * *
Instead of asking the jury to determine whether Appellant was guilty, beyond a reasonable doubt, of each element of the charged offense, the district court instructed the members of the jury that they need not concern themselves with certain elements of the crime.
* * *
The jury neither determined whether the remaining facts essential to conviction were established beyond a reasonable doubt, nor did it find Appellant guilty of the charged offense.
As we have explained, 'the jury’s constitutional responsibility is not merely to determine the facts, but to apply the law to those facts and draw the ultimate conclusion of guilt or innocence.' Here, the district court erred when it treated the jury as a mere fact finder with respect to the elements the court considered to be in dispute, and thereby prevented the jury from making the ultimate, indispensable conclusion of whether Appellant was guilty or not guilty.
Going further, in concluding that his error was one that, if left uncorrected, would impact the "fairness, integrity, or public reputation of judicial proceedings," concluded (citations omitted):
The Sixth Amendment’s jury trial guarantee, which includes,'“as its most important element, the right to have the jury, rather than the judge, reach the requisite finding of ‘guilty,' is fundamental. Here, Appellant did not waive his fundamental right to a trial by jury, yet no jury has declared Appellant guilty, and he has been sentenced to 33 months’ incarceration based upon a judge’s determination of guilt. Regardless of the evidence presented against Appellant at trial -- which we acknowledge was substantial -- we cannot condone this practice. To do so would undermine the integrity and public reputation of the judiciary.
In other words, it doesn't matter if everybody in the room - including the jury! - thinks the evidence is overwhelming and the defendant is guilty, it doesn't matter unless the jury actually issues a verdict declaring him to be so. The mummery is important because the jury has a role to play and has to play it, even if the result is a foregone conclusion. Because sometimes, it won't be.
The Fifth Circuit confronted a similar situation, in which after the defendant took the stand at trial and basically confessed to the crime, the trial court told the jury to "go back and find the Defendant guilty." Not surprisingly, the Fifth Circuit reversed those convictions, too, for reasons similar to the Fourth's.
The Supreme Court encountered another kind of important mummery in a bizarre case out of Illinois.
The defendant was charged with various offenses (including the wonderfully vague "mob action" - presumably the opposite of "Love Action") and scheduled to go to trial in March 2009. Trial was repeatedly delayed, however, because the prosecution couldn't bring the victims of the alleged offenses in to testify. Finally, more than a year later, the trial court decided enough was enough, although it delayed the start of trial on that particular day as much as it could (and helpfully suggested that the prosecutor "might want to send the police out of find these two gentlemen").
But when it came time to start trial, the witnesses weren't there:
THE COURT: . . . . It’s a quarter to eleven and [the witnesses] have not appeared on their own will, so I’m going to bring the jury in now then to swear them.Here's how it worked. The jury was sworn, the judge asked the prosecution to make an opening statement, and the prosecutor said:
[The Prosecutor]: Okay. Your Honor, may I approach briefly?
THE COURT: Yes.
[The Prosecutor]: Your Honor, just so your Honor is aware, I know that it’s the process to bring them in and swear them in; however, the State will not be participating in the trial. I wanted to let you know that.
THE COURT: Very well. We’ll see how that works.
Your Honor, respectfully, the State is not participating in this case.The prosecutor said the same thing when the judge asked the state to present its first witness. After that, the defense moved for a judgment of acquittal based on the state's failure to present any evidence. Again, the prosecutor refused to participate, so the defendant was acquitted and the charges dismissed.
The issue for the Supreme Court arose when the state appealed and the defendant argued that the Double Jeopardy clause - which bars the prosecution from having repeated bites at the apple - precluded any retrial. Amazingly, the Illinois state courts agreed with the state that jeopardy hadn't attached because the state didn't actually participate in the trial once it started.
The Supreme Court rejected that conclusion in the harshest way possible - in a unanimous per curiam (meaning "by the court" - it was so easy nobody had to sign a name to it) opinion without even waiting for full briefing and oral argument. It reversed only on the cert pleadings - which happens, but is pretty rare.
It was so easy because this is one of those situations where there's a rule that says jeopardy attaches once a jury is sworn. If you get acquitted after that, you're home free. In fact, the Court held that there were "few if any rules of criminal procedure clearer" and the Illinois courts messed up by finding "anything other than a bright line when jeopardy attaches." As in the cases discussed above, whether the defendant actually did what he was accused of is irrelevant - he was acquitted. End of story, quite literally.
All of these cases show not only that there exists legal mummery in our criminal justice system, but that it relies upon it.
June 3, 2014
Time to Make An Example
Given the presence of two news stories over the weekend highlighting corruption in international soccer, the time has come for FIFA to act and the place to do it is Qatar.
More to the point, it's time to rip the 2022 World Cup from Qatar and place it somewhere else. And fast.
Neither story comes as shocking news to those who follow such things, but they bolster the perception (and reality) that international soccer is rife with corruption and FIFA is unwilling, or unable, to do anything about it.
First, from Sunday's New York Times, comes an article (first in a series - never a good sign) about match fixing by gamblers, particularly in international friendlies leading up to the last World Cup in South Africa:
Which is to say, I doubt it would be nearly as easy to buy someone off for a World Cup match, or any match that actually meant anything. Not saying it can't happen, but I don't think we can extrapolate from one situation to the other directly.
Nonetheless, the match fixing is pretty brazen, as witnessed by Chaibou and his bag of cash (probably affixed with an over sized dollar sign, just to make the image complete). It feeds a perception that FIFA is fundamentally corrupt.
A perception that was reinforced by a story broken by the Sunday Times over the weekend (reported via Deadspin) that a former FIFA executive paid out bribes to secure the 2022 World Cup for his home country, Qatar:
The awarding of the World Cup to Qatar was greeted with scoffs and talk of bribery when it was first announced. The country has no real history on the international soccer scene and staging the tournament in its traditional mid-summer time frame in the Middle East borders on suicidal. Even FIFA head honcho recently told Swiss television that awarding the Cup to Qatar was a "mistake."
Given all that, FIFA is in a good position to take quick, decisive action to show that it won't put up with that kind of shenanigans - take the 2022 World Cup away from Qatar. Reopen the bid process or hand it directly to a country that can host it in spite of the shortened time frame. Would I like to see it be the United States? Of course. That would also help deflect some of the criticism of the soon to begin tournament in Brazil, namely that there's a lot of money being spent on big stadiums that won't see much (if any) use once the tournament is over. The US has lots of large stadia that can host soccer, with even more coming on line in the next few years. And don't forget, the 1994 World Cup held here is still the best attended in history.
But that would be a secondary benefit to FIFA finally making a move to get its house in order. I hope it will happen, but I'm skeptical.
More to the point, it's time to rip the 2022 World Cup from Qatar and place it somewhere else. And fast.
Neither story comes as shocking news to those who follow such things, but they bolster the perception (and reality) that international soccer is rife with corruption and FIFA is unwilling, or unable, to do anything about it.
First, from Sunday's New York Times, comes an article (first in a series - never a good sign) about match fixing by gamblers, particularly in international friendlies leading up to the last World Cup in South Africa:
A soccer referee named Ibrahim Chaibou walked into a bank in a small South African city carrying a bag filled with as much as $100,000 in $100 bills, according to another referee traveling with him. The deposit was so large that a bank employee gave Mr. Chaibou a gift of commemorative coins bearing the likeness of Nelson Mandela.
Later that night in May 2010, Mr. Chaibou refereed an exhibition match between South Africa and Guatemala in preparation for the World Cup, the world’s most popular sporting event. Even to the casual fan, his calls were suspicious — he called two penalties for hand balls even though the ball went nowhere near the players’ hands.In some ways, the headline - that "Fixed Soccer Matches Cast Shadow Over World Cup" - oversells things a bit. Friendlies are ripe for that kind of shenanigans because few people really care all that much about the outcome. To use a recent example, ultimately whether the US beat Turkey 2-1 or 10-1 on Sunday isn't as important as being able to evaluate how certain players played, worked together, etc. Bizarrely, I'm more likely to watch a friendly on the TiVo if I already know the result for that very reason.
Which is to say, I doubt it would be nearly as easy to buy someone off for a World Cup match, or any match that actually meant anything. Not saying it can't happen, but I don't think we can extrapolate from one situation to the other directly.
Nonetheless, the match fixing is pretty brazen, as witnessed by Chaibou and his bag of cash (probably affixed with an over sized dollar sign, just to make the image complete). It feeds a perception that FIFA is fundamentally corrupt.
A perception that was reinforced by a story broken by the Sunday Times over the weekend (reported via Deadspin) that a former FIFA executive paid out bribes to secure the 2022 World Cup for his home country, Qatar:
Bin Hammam was able to secure votes with 'lavish junkets' and straight-up cash. According to the Times at least one of these junkets with money goodie-bags was actually paid for by the Qatar bid. In 2009 bin Hammam hosted three key voters, and 35 other soccer officials in Doha, all on Qatar's dime.
In addition to these junkets, Hammam also made payments totalling up to $200,000 to accounts 'controlled by the presidents of 30 African football associations' who were key to securing a pro-Qatar vote. Payments were made from 10 slush funds and bin Hammam's daughter's account.All in all, more than $5 million was involved. And, as with the match fixing, it was fairly brazen, with (for example) the head of the Namibian Football Association demanding $50,000 (US, naturally) "to build football pitches."
The awarding of the World Cup to Qatar was greeted with scoffs and talk of bribery when it was first announced. The country has no real history on the international soccer scene and staging the tournament in its traditional mid-summer time frame in the Middle East borders on suicidal. Even FIFA head honcho recently told Swiss television that awarding the Cup to Qatar was a "mistake."
Given all that, FIFA is in a good position to take quick, decisive action to show that it won't put up with that kind of shenanigans - take the 2022 World Cup away from Qatar. Reopen the bid process or hand it directly to a country that can host it in spite of the shortened time frame. Would I like to see it be the United States? Of course. That would also help deflect some of the criticism of the soon to begin tournament in Brazil, namely that there's a lot of money being spent on big stadiums that won't see much (if any) use once the tournament is over. The US has lots of large stadia that can host soccer, with even more coming on line in the next few years. And don't forget, the 1994 World Cup held here is still the best attended in history.
But that would be a secondary benefit to FIFA finally making a move to get its house in order. I hope it will happen, but I'm skeptical.
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