World Cup Thoughts

Nearly 24 hours later, I'm still gutted by the United States's exit from the World Cup.  Don't get me wrong - if someone beforehand had said we'd vanquish the history with Ghana, emerge from the Group of Death, and take Belgium (a very trendy darkhorse pick going into the tournament) to added time before bowing out, I'd have been happy with that.  But there was so much that we left on the table.  But for a last-second brain fart, we come from behind to beat Portugal, winning back-to-back group games for the first time (and maybe, just possibly, winning the group).  But for Chris Wondlowski choking like an autoerrotic asphixiant last night, we steal a win against Belgium and are planning on how to stop Messi and company on Saturday.  All in all, I'm both pleased and frustrated.

A few player specific thoughts . . .

• Tim Howard is God.  And I'm an atheist, so that should count double, or something.  Brad Guzan has some big gloves to fill for the next cycle (and the next Gold Cup - only a year away!)

• Michael Bradley had a bad WOrld Cup.  I realize that he put in an awful lot of work (after the group stage, at any rate, he was one of the leaders in amount of ground covered), but he was too often unable to hold on to the ball or do anything interesting with it (brilliant assist last night aside).  Whether that's because he was playing in a role that's not really his own or something else, he's got to get back on track when he returns to Toronto.  And Klinsmann needs to figure out how to get the best out of him.

• Jermaine Jones was great, probably our best player overall through four games.  He showed all the poise, restraint, and good timing going forward that he's hinted at for years.  I mean, seriously, who expected him to get through four games with only one yellow card?  And that goal was really a screamer.  I hope he can claw his way back to a bigger European club after this showing.

• As for Julian Green, I said a month ago that I thought Klinsmann's decision to include him on the roster was a mistake, but hoped "they both prove me wrong in the next few weeks.".  Proof given, I am ready to eat crow.  Green's flick to score against Belgium last night was not the act of a kid who is out of his depth.  And he did contribute the cause at this World Cup.  Well done.

• Clint Dempsey had a weird cup.  On the one hand, he scored two goals, becoming the first (?) American player to score in three consecutive World Cups.  On the other hand, in the wake of Jozy Altidore going down injured, Clint was left to fill a role that's not really his (sort of like Bradley) and, as a result, disappeared for long streches of time.  Not his fault, obviously, but kind of disappointing nonetheless.

• As for Jurgen Klinsmann himself, it's hard to say at this point.  His deftness with substitutions continues (see sub goals for Green and John Brooks), but the way things shook out it's hard not to fault some of his roster choices.  There was no cover for Altidore in terms of a big, strong, back-to-goal kind of player when one was available in Terrence Boyd.  Likewise, there were no reinforcements in the holding midfield role once he went to having Jones and Kyle Beckerman (who had a good three games) in with Bradley.  That's to say nothing of the wastes of roster space that were Brad Davis (played one horrible half) and Mixx Diskerud (didn't play at all).

One final thing.  This World Cup has captured American attention like none I remember before (since 1994, at least) and I hope some of that "sticks."  I don't expect everybody who tuned in yesterday to pick up Major League Soccer for the rest of the season or even the Gold Cup when it comes around this time next year.  But if just a few people are converts to the charms of the beautiful game, I think we'll have to call this World Cup a success.

Friday Review: The MaddAddam Trilogy

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

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:

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!

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:

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.

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:

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 switch

Anderson 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.

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:

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.

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):

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.

[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.

Here's how it worked.  The jury was sworn, the judge asked the prosecution to make an opening statement, and the prosecutor said:

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.

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:

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.

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.

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.

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!

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)

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.

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.

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!

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!

Sweet Juicy Justice

I've waffled on before about how the criminal justice system really isn't about "justice" all that much, in the end, at least.  Over at a public defender, Gideon examines that concept in relation to a trio of high-profile cases in the news recently.

One is the story of an heir to the du Pont family fortune, Robert H. Richards, IV, who received no (active) prison time after pleading guilty to sexually abusing his three-year old daughter, which is causing outrage because the sentencing judge indicated that the guy "will not fare well" in prison.  No kidding.

Another is the story of a guy who murdered a doctor during a robbery gone bad.  He "had a long history of delusions about communicating directly with God," which some folks might find just a bit crazy.  He was convicted anyway, partly based on logic (loosely defined) like this:

'He’s sick, but I feel like he knew what he was doing,' said a juror, Dana Torres, 27, a construction worker. 'For me, if he had said Satan told him to do this, it would have been a different story.'

Yikes.

Finally, there's the story of a homeless woman who left her children in her car while she went inside for a job interview.  She was arrested for child endangerment.

Is there a common thread that runs among these cases?  Gideon says:

The three stories are disparate and the memes surrounding each are indisputably different, but don’t be fooled: they are, at essence, about one thing – the utter uselessness of our prisons and the inability of our justice system to hand out anything that should remotely be considered 'justice'.

He's right.  At best, the system is designed to provide something vaguely like justice most of the time, through a procedural scheme that applies in every case.  But no system is perfect (consider just the human element) and even if it does well enough in the mine-run of cases, it won't work all the time.  Getting "justice" in every case would require wide discretion and constantly shifting standards that would make anybody nervous.

Gideon also does a good job digging into the facts of the first case, which are much more complicated than most media screamers indicate.  And, anyway, the meaning is lost in the shouting:

That’s not to say that there isn’t a problem with wealth. Mr. Richards got to go home because he needed treatment and he was able to afford to go to a clinic in MA to get that.

The real take[a]way from this should be not that Mr. Richards got a break, but that he got fair treatment for himself because he was rich and thus, there are hundreds who deserve the same but can’t get it because they are poor.

He goes into even more detail about the case and the outcome here.

While I'm harrumphing Gideon, I want to point out another thing he says:

As I’ve said repeatedly, prisons aren’t a fun place at all. They’re miserable, dank, scary and smell of piss and shit and blood and tears. I’d probably try to kill myself within the first 24 hours and who are you kidding, so would you.

A thousand times this.  Anybody who talks nonsense about how good inmates have it or about "country club" prisons has never been in one or talked to anybody who has.  Which is one reasons why, sometimes, it's so hard to figure out just what "justice" is.

How to Pull a Town Out of Thin Air

One of the cool things about writing fiction is you get to make up stuff as you go along (it's sort of the nature of the game).  Not just characters and what they do but, often just as important, where they do it.  You can build entire worlds and nations in your mind, not to mention cities.  I've even made some maps (crude, but effective - I'm not a cartographer, after all) of the world in which my Water Road books are set, as well as another world I've yet to write in.  It's all quite fun.

But imagine that you could create a town out of thin air, as a fiction, only for it to pop up in real life?  Now that's really cool!

Consider the strange case of Algoe, New York (not to be confused with the planet Algon, where an ordinary cup of drinking chocolate costs 4 million pounds).

Back in the 1930s, it wasn't unusual for mapmakers to steal each other's work.  After all, if a map reflects realty and someone copies the map, don't they have a defense to plagiarism by arguing that both the original map and the alleged copy accurately reflect realty?  How can that lose?

Turns out, map makers got savvy and began including some fictional places to trap would be copyists:

That's what Otto G. Lindberg, director of the General Drafting Co., and his assistant, Ernest Alpers, did in the 1930s. They were making a road map of New York state, and on that out-of-the-way dirt road, they created a totally fictitious place called 'Agloe.' The name was a mix of the first letters in their names, Otto G. Lindberg's (OGL) and Ernest Alpers' (EA).

The trap set, it appeared to work, when the town of Algoe appeared on a map made by none other than Rand McNally a few years later.  Case closed, right?  Big check from Rand McNally to Lindberg and Alpers.  Not so fast - Rand McNally offered a defense: there really was a town called Algoe.  In fact, the official county map showed an Algoe General Store in that location.  Checkmate, cartographic honey pot.

But how'd that happen?

Good question. Here's the ironic answer. The owners had seen Agloe on a map distributed by Esso, which owned scores of gas stations. Esso had bought that map from Lindberg and Alpers. If Esso says this place is called Agloe, the store folks figured, well, that's what we'll call ourselves. So, a made-up name for a made-up place inadvertently created a real place that, for a time, really existed. Rand McNally, one presumes, was found not guilty.

Then the store closed. It isn't there anymore.

Having said that, according to the NPR story, Algoe held on for years on Google Maps until it, again, vanished into thin air recently.

So, want to have an impact on the world?  Make a map and give it a fictional town.  It might come to life without you even knowing about it!