Hunter Becomes the Hunted

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

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

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

Ken Anderson, who was the lead prosecutor in Morton’s case, is now a judge, naturally. He’s also, now, under arrest:

Ken Anderson was in the courtroom as Judge Louis Sturns issued his ruling and turned himself in afterward. Sturns said there was sufficient evidence that Anderson was guilty on all three charges brought against him for his handling of the case against Michael Morton: criminal contempt of court, tampering with evidence and tampering with government records.

‘Mr. Anderson consciously chose to conceal the availability of the exculpatory evidence so he could convict Mr. Morton for murder,’ Sturns said. ‘This court cannot think of a more intrinsically harmful act than a prosecutor's intentional choice to hide evidence so as to convict a defendant facing a murder charge and a life sentence.’

At issue in Anderson’s case are two pieces of evidence collected by police that pointed to someone other than Morton as the killer. One was a report of a suspicious van in the area at the time of the killing, while the other was a report that Morton’s young son, who was at home when his mother was murdered, that a “monster” hurt his mother, not his father. As Judge Sturns concluded in his findings of fact, this was:

evidence that showed Mr. Morton did not murder his wife.

In addition, Judge Sturns concluded that Anderson knew about this evidence and failed to turn it over to the defense or follow up on potential leads:

[t]he sheriff’s department and Mr. Anderson quickly concluded Mr. Morton was responsible for killing his wife, and so curtailed further investigation of the murder.

Anderson’s failure to disclose evidence forms the basis of the criminal charges against him.

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

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

Friday Review Special: Yessongs & Tales From Topographic Oceans

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

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

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

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

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

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

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

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

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

Details
------------
Yessongs, by Yes
Tracks:

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

Tales From Topographic Oceans, by Yes
Tracks:

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

Both released 1973

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

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

The First Amendment Takes It On the Chin – Twice

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

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

Principal George Aulenbacher allowed an abstinence-only “speaker” named Pam Stenzel to come to the school. The assembly, at which attendance was mandatory, was paid for:

by a conservative religious organization called ‘Believe in West Virginia’ and advertised with fliers that proclaimed ‘God’s plan for sexual purity.’

It doesn't take a First Amendment scholar to know that arguments for “God’s plan” about anything doesn’t have any place in a public school. If there’s a basis for abstinence only education in schools (I’d argue there isn’t, but that’s for another day), it needs to be one divorced from anyone’s concerns about gods, or the lack thereof, and based on objective, verifiable facts.

Even worse, Stenzel’s shtick is abusive and confrontational:

Stenzel has a long history of using inflammatory rhetoric to convince young people that they will face dire consequences for becoming sexually active. At GW’s assembly, Stenzel allegedly told students that ‘if you take birth control, your mother probably hates you’ and ‘I could look at any one of you in the eyes right now and tell if you’re going to be promiscuous.’

This piece at Salon has more background on Stenzel, including her reliance on bogus statistics and facts. Her routine includes some other gems:

While talking about the importance of only ever having sex with one person for your entire life, she says, ‘If you have sex outside of that context you will pay. No one has ever had more than one partner and not paid.’

Thankfully, a GW senior, Katelyn Campbell, objected to the whole assembly, refused to attend, and contacted the ACLU. But to truly take the cake for this awful affair, Aulenbacher threatened her for speaking out:

The high school senior alleges that Aulenbacher threatened to call Wellesley College, where Campbell has been accepted to study in the fall, after she spoke to the press about her objections to the assembly. According to Campbell, her principal said, ‘How would you feel if I called your college and told them what bad character you have and what a backstabber you are?’

The fine folks at Wellesley College, as expected, were not not fazed by Aulbacher’s clumsily bizarre attempt at retaliation. After botching the Establishment Clause premise, Aulbacher then went ahead and violated the spirit, if not the letter, of the Free Speech Clause by trying to punish Campbell for publicly objecting. At least that attempt fizzled and died.

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

A middle school student wore a NRA T-shirt to school. This upset at least one member of the school staff:

White said that Marcum had been wearing the shirt without causing any problems from homeroom at the beginning of the school day through fifth period, and was confronted by one of the school’s teachers while getting his lunch. When Jared refused to remove or reverse the shirt, the teacher began to raise his voice, and it caught the attention of students eating their lunch, White said.

Marcum was eventually arrested and taken away by police after refusing to remove the shirt. White said that when police told the teen they were going to arrest him, he stuck his hands out and said, ‘Fine.’

Now, as the Supreme Court has said:

It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years.

And that was in 1969. I agree with Eugene Volokh that a policy banning T-shirts like the one this student wore is most likely unconstitutional. It doesn’t even really seem like a close call. Thus, there was no basis for the teacher to ask the student to remove the shirt, much less for him to be arrested (?!) for doing so. It was fine for the teacher to approach the kid and ask about his shirt – free speech is a two-way street, after all – but any escalation seems to be the teacher’s fault, not the kid’s. One would expect a teacher to have better control of his/her emotions than a middle school kid, for fuck’s sake.

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

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

Paging Doctor Eno

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

Brian Eno is generally credited with giving a name to, if not outright starting, the ambient genre back in the 1970. The idea was to create music that designed to work as part of a particular environment, to be, as it were, aural wallpaper. For example, the first album to explicitly label itself “ambient,” Eno’s 1978 Ambient 1: Music for Airports was inspired by his unpleasant experience with the atmosphere of a German airport. In the liner notes, he explained:

Ambient Music must be able to accommodate many levels of listening attention without enforcing one in particular; it must be as ignorable as it is interesting.

* * *

Ambient Music is intended to induce calm and a space to think.

Shift scene, then, to Brighton, England, in 2010, where Eno has installed a music/art piece called “77 Million Paintings.” Enter surgeon Robin Turner:

His mother-in-law also went, said Turner, and ‘she is normally very fidgety, you can’t pin her down; the phrase we use is that she goes at a million miles an hour with her hair on fire. She went in and was there for two hours, which is unheard of. It was proof that this has a calming influence on people’.

The experience prompted Turner to get in touch with Eno, the result being a “hospital quiet room” designed by Eno for a new hospital in Hove. Eno jumped at the chance:

It was the first time, he said, that he had been able to practise his belief that music can be made that deliberately affects mood. ‘I’ve met many women who have had children listening to one of my records so I knew there was this dimension and here, in the last couple of days I’ve met patients and staff who have said, ‘I really like that room, it makes a big difference’.

Turner and staff are going to collect hard biometric data to see if it backs up positive anecdotal reports.

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

Justice Is Bigger Than Vengeance

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

Thane Rosenbaum, a law prof (and novelist) at Fordham, disagrees. In fact, in an article last month for The Chronicle of Higher Education, he argued that not only should vengeance have a seat in the criminal policy bus, it should get to drive. Maybe he’s onto something, since he apparently has the magical ability to read the minds of others:

But the distinction between justice and vengeance is false. A call for justice is always a cry for revenge. . . . No matter what they say, victims aren’t choosing justice over vengeance; they are merely capitulating to a cultural taboo, knowing that the protocol in polite society is to repudiate revenge.

I’m always wary of someone who claims that something “always” anything and has the gall to tell others what they’re actually thinking (which is double odd since he’s setting himself up as their advocate). What does Rosenbaum say to families of murder victims who actively argue against the death penalty, even in cases involving their loved ones? Are they deluded? And if they are, doesn’t that argue for keeping victims at a greater distance from the criminal justice process?

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

Life, in Rosenbaum’s eyes, is like a movie in which revenge is not only an acceptable goal, but a laudable one:

We watch revenge films without embarrassment because on some primal level we know that just deserts are required in the moral universe, that those who commit crimes must be punished according to their blameworthiness, and that wrongs must ultimately be righted. It’s not our lust for violence that explains why we applaud payback, but our absolute need to live in a world that promotes fairness, law and order, and social peace.

Yes, because the revenge films of which he speaks, such as Braveheart and Gladiator, are held up as shining examples of the complexity of human relations. Except, of course they aren’t. We like revenge flicks because they present an easily identified wrong, committed by an obvious bad guy, who eventually gets his due. They’re a parody of real life, not accurate reflections.

That simplistic, black/white view of the universe, comes through even more clearly in a comment Rosenbaum made on NPR while discussing this issue:

We run away from this idea that the death penalty is something that we should abhor. But remember, when someone takes an eye, or in this case a life, they’ve made a decision to take a life. And there’s - one wonders why there’s - that there should be a discount on what payback should look like.

It’s certainly a simpler way to look at punishment to say, “you take a life, your forfeit your life,” but to do so would reject centuries of Western law that actually gives a shit about a defendant’s state of mind when he acts. Consider the following scenarios:

• Killer shoots Victim in the head as part of a contract killing
• Killer shoots Victim in the head in the heat of passion after finding Victim in bed with Killer’s wife
• Killer shoots Victim in the head by accident, perhaps while “practicing” Wild West tactics
• Killer shoots Victim in the head because he correctly thinks that Victim has a weapon and is going to kill him
• Killer shoots Victim in the head because he incorrectly thinks that Victim has a weapon and is going to kill him
• Killer runs over Victim with his car, while driving drunk
• Killer runs over Victim with his car, while completely sober
• Killer runs over Victim with his car, while swerving trying to avoid a small child running out into the road

I could go on all day. Most of us would think the proper punishment would have some relation to the culpability of the Killer and would vary from case to case. However, by Rosenbaum’s calculus, the punishment for the Killer in all those scenarios is the same – off with his head – presumably even in the true self-defense situation. After all, there’s a dead Victim and an identified Killer. The only way out of that is to somehow argue that a justified killing doesn’t lead to proper demands for vengeance, but I expect Rosenbaum will find plenty of loved ones of people killed in “self-defense” who think it was anything but.

Rosenbaum’s entire argument revolves around this idea of vengeance as something that can be located with mathematical certainty. For example, he complains about the impact of plea bargaining:

So we tolerate a legal system where over 95 percent of all cases are resolved with a negotiated plea—bargained down from what the wrongdoer rightfully deserved. That means that convicted criminals are rarely asked to truly repay their debt to society. Even worse, this math-phobic system tragically discounts the debt owed to the victim, who is grossly shortchanged.

I’m not sure this shows what Rosenbaum thinks it does, however. Firstly, that 95% figure covers all offenses, a large proportion of which have no victim at all. In fact, in my practice the case with an actual victim is vanishingly rare. So what percentage of cases with victims plead out? Secondly, why were those cases resolved by plea agreement? Were the original charges overly harsh given the evidence? Was it a matter of securing a conviction to a lesser offense or letting a guilty defendant walk free after an unsuccessful trial? Or does Rosenbaum think we just do away with the actual guilt phase of proceedings and focus entirely on what the victims want? Once again, a victim may want the perpetrator excessively punished, regardless of what evidence that prosecution could actually muster in court.

Rosenbaum’s attempt to drag us into some international consensus on this issue isn’t persuasive, either:

Other nations around the world allow for revenge—whether in the form of individual relief or under color of law.

Except that most western nations, the ones we think of our peers in the whole Enlightenment experiment, have almost completely rejected his easiest sale for vengeance, the death penalty. So if, in fact, lots of other nations don’t allow for revenge, which ones do?

And other nations, including Cambodia and Iran, better incorporate vengeance within their legal systems. (Iran’s and Cambodia’s human-rights records are a different matter entirely.)

Ah, all right, I see. Let us not look to European models, which protect a shared interest in human rights, but instead to nations with troubling human rights records, as if the two are not related.

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

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

Friday Review Special: Selling England by the Pound

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

'Can you tell me where my country lies?’
Said the unifaun to his true love’s eyes

Thus begins one of the most aggressively English of the great prog records. Selling England by the Pound isn’t just Genesis’s apex during the Gabriel years, it served as a template for an awful lot of neo and symphonic prog to come in the decades ahead.

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

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

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

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

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

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

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

Details
------------
Selling England By the Pound, by Genesis
Released 1973

Tracks:

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

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

Keeping Copyright Meaningful

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

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

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

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

Or, consider the tale of Jayne’s hat.

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

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

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

Except that Fox, after years of doing nothing, has allowed a company to license the hats and sell them. As a result, the DIYers have gotten nasty letters from Fox lawyers:

Turns out in the last few weeks many of them have received cease-and-desist letters or have simply been banned from Etsy for producing DIY Jayne Hats. This communal endeavor, it seems, is coming to a close, and fans of the show are asking themselves why. Isn't the whole point of the Jayne hat that it be homemade? Doesn't it mean anything that the hats are often auctioned off at charity events? After 10 years of nothing, isn't it unfair for Fox to suddenly force lifelong fans to cease production of something they love?

It’s all perfectly legal, of course:

And the answer, for now, is that Fox owns the license and that's that. The fans who are mad that the hat was licensed for mass production are the ones who are closest to hitting the nail on the head. The fact is, Fox now has a legal obligation to its shareholders -- they have to chase down anyone producing and selling a licensed product without permission. Ripple Junction holds the license, the fans do not.

But isn’t it kind of a dick move? Here’s the megacorp that killed the show in the first place, showing up a decade after the fact to capitalize not on its own success, but on the cult that thrived in spite of Fox’s neglect.

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

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

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

* That’s because it’s fucking awesome!

When A Crime Becomes A Crime

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

The first, and more notorious, is the case of the “cannibal cop” in New York, Gilberto Valle. As this story points out :

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

Then he and Moody Blues agreed to cook and eat Kimberly together over Labor Day, at Valle’s secluded place ‘up in the mountains,’ a spot accessible via ‘lots of winding roads.’ Valle lived in an apartment building in Queens.

There’s more nauseating detail in the story, but the gist of it is that, for all his talk, Vale never actually abducted, killed, and consumed anybody. Nonetheless, he was charged with conspiracy to commit such a grisly murder. As another story explains:

The bulk of the evidence regarding Gilberto Valle's plot consisted of online communication between the ‘cannibal cop’ and fellow cannibal-role-playing kinksters at a social media site called DarkFetish.net. The defense team had argued that while Mr. Valle had gruesome fantasies about roasting women on spits, they were just that: fantasies.

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

The jury disagreed and found that Mr. Valle had acted in furtherance of these grisly schemes – researching recipes for chloroform, downloading photos of his intended victims – to conclude he had crossed into the realm of criminal intent. In a separate charge, he was also convicted of unauthorized use of a law enforcement database to look up the women.

As both stories note, there is concern in some circles that Valle was convicted purely for his own fantasies, rather than any tangible act that put someone else in danger. While the specter of “thought crime” is enough to make anyone sit up and take notice, I’m not sure Valle’s case is the best one to use as an example. Regardless of what he said online, he took actions in the real world that appear to be part of a scheme. Most critically, he committed another crime – accessing the database – along the way. I can buy, somewhat, the idea of playing out the fantasy through some of the other acts doesn’t show intent to actually do anything. But once you’ve subjected yourself to criminal liability in the process, it seems clearly enough that the line has been crossed.

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

Anaya was a car stereo installer in California who branched out into what are called “traps” – hidden compartments in cars in which items can be stored. They can be staggeringly complex:

In recent years, trap makers have competed to see who can dream up the most elaborate opening tricks. The acknowledged masters of this art are the Dominican-born installers of the Bronx, many of whom work out of auto body shops on Jerome Avenue—a gritty strip that DEA agents call the Silicon Valley of trap making. ‘The Dominicans started doing voice activation about six years ago,’ says [Maryland sheriff Michael] Lewis, who teaches classes in trap recognition to law-enforcement agencies nationwide. ‘I have videotape of a Dominican trap—you have to activate cruise control, pull one window up while you pull another window down, and you speak. And when you speak, you complete a circuit and activate the compartment. It’s pretty badass.’

Having said that, the most effective traps are the ones that aren’t detected in the first place. That was where Anaya really excelled.

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

That’s what Anaya thought, anyway, until a guy named Esteban came to him to fix a trap he had previously installed:

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

* * *

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

Anaya stumbled back from the truck’s cab, livid. ‘Get it out of here,’ he growled at Esteban. ‘I don’t want to know about this. I don’t want any problems.’

But it was too late. Esteban was part of a big drug ring that shipped drugs from California to Kansas. Once they were all arrested in the heartland, the feds came for Anaya, too, charging him with conspiracy, even though he really knew nothing about the actual drug smuggling operation. It didn’t matter. He made the mistake of going to trial and, with actual conspirators cutting deals to testify, didn’t stand a chance:

When the trial started on January 25, 2011, the lead prosecutor, an assistant US attorney named Sheri McCracken, argued that Anaya was one of the main reasons the smuggling ring had evolved into a multimillion-dollar enterprise. The organization ‘moved up in the world when they met Mr. Anaya,” she told the jury. ‘He built supreme compartments, and because he did that, drug hauling became easier … But for Mr. Anaya’s compartment building, lots of loads would be lost.’

* * *

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

Not only was Anaya was convicted, he was sentenced to more than 24 years in prison, double what the guys who actually ran the drugs received.

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

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

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

When A Right Becomes A Right

For generations, hell even millennia, legal scholars and philosophers have argued about what makes law, where it comes from, and what makes a just law. Natural law theorists posit some higher form of moral obligation (usually, though not necessarily, related to God) through which they filter such questions. Legal positivists, on the other hand, focus on the process and ask whether the way in which a law in enacted renders it just.

Both views have their problems (How do we divine this higher obligation? What about objectively evil legal regimes, like Nazi Germany’s, that nonetheless comport with positivist procedural ideals?), which is why I tend to think of myself as a legal realist. That means that the only real issue in what determining what the law “is” has to do with what the people invested with the authority to make it, interpret it, and enforce it say it is. The question of good versus bad, right versus wrong, just versus unjust, is completely separate from issue of what the law is. To use but one example, I consider our modern Fourth Amendment jurisprudence to be profoundly unjust, but it is what it is.

That debate came to mind listening to the Supreme Court oral argument in the Prop 8 gay marriage case earlier this week. At one point, Justice Scalia tried to pin down Ted Olson on, if there is a constitutional prohibition against discrimination in marriage based on sexual orientation, when did it come to be (via)?

JUSTICE SCALIA: I’m curious, when -­ when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometimes — sometime after Baker, where we said it didn’t even raise a substantial Federal question? When — when — when did the law become this?

MR. OLSON: When — may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools.

JUSTICE SCALIA: It’s an easy question, I think, for that one. At — at the time that the Equal Protection Clause was adopted. That’s absolutely true. But don’t give me a question to my question. When do you think it became unconstitutional? Has it always been unconstitutional? . . .

MR. OLSON: It was constitutional when we -­as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that that -­

JUSTICE SCALIA: I see. When did that happen? When did that happen?

MR. OLSON: There’s no specific date in time. This is an evolutionary cycle.

Scalia’s game, of course, is tied to his particular mode of interpretation that stresses the original meaning of constitutional provisions. Thus, if it didn’t violate the Constitution in 1868 to ban gay marriage neither does it today. Amend the Constitution, would be Scalia’s druthers.

The problem with that view is that it overlooks how courts work in the real world and how they have worked in the past. For example, a major issue in the Prop 8 case is whether the Court even has jurisdiction to hear the case at all, given that the people taking the case to the Court aren’t the state of California or its elected representatives. That’s because Article III requires there to a be a live “case or controversy” for federal courts to exercise jurisdiction. Unlike top-level courts in some other countries, the Supreme Court can’t issue advisory opinions – it can only decide live cases brought before it. If nobody asks the court to resolve the question, nobody really knows whether something violates the Constitution or not.

More problematically for Scalia’s position, I think, is what the Court frequently reverses course on whether something violates the Constitution or not. It’s not important, or even earth-shattering, that the Court might get something wrong before it gets it right, but ask yourself what, in the interim, is the law? It’s what the Court says it is, rightly or wrongly.

Take, for example, two situations arising out of the Fourteenth Amendment’s guarantee that not state shall:

deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

First, there’s the issue of racial segregation. In 1896, in Plessy v. Ferguson, the Court held that racial segregation did not violated the equal protection clause, yet in 1954, in Brown v. Board of Education, the Court held just the opposite. What had changed in the intervening 58 years? Not the text of the Fourteenth Amendment nor the intentions of those who drafted it. Society had changed, the Court had changed. It had evolved, even.

The same thing happened with interracial marriage. In 1883, in Pace v. Alabama, the Court held that the state’s law against miscegenation – which included criminal penalties, not just civil regulations – did not violate the equal protection clause. Yet, in 1967, in Loving v. Virginia, the Court held just the opposite. Again, what had changed?

There’s an even more recent example with which Scalia is familiar. For more than two centuries the understanding of the Second Amendment in most legal circles was that it protected only a collective right related to militia service, not an individual one. The scholarship on the issue began to turn in the late 20th century and, in 2008, the Court (with Scalia writing the opinion) held, in District of Columbia v. Heller, that it was an individual right that the Second Amendment protects, not a collective one.

So, the question for Scalia and others who worry about when a right becomes a right is whether the individual right to possess a firearm existed before 2008? Did the right to be free from racial discrimination exist before 1954 or 1967? If they did exist, but the Court was wrong in not recognizing it, than what good does it do to identify the right as existing back then?

Going back to the whole legal realism thing, I’ve never been a fan of thinking about rights as things that exist outside the legal/social structure of a particular place. Some things nobody can take away – nobody can make you think certain thoughts or keep you from doing so. On the other hand, the state can certainly down on what you can say in public and keep you from disseminating your ideas. In such a situation references to a free-standing universal right to free speech seem pointless – if you can’t exercise that right, does it really exist?

Which brings us back to Scalia’s basic question – when does a right become a right? The simple answer is when you and your Brethren or Congress or state legislatures or courts decide it does. There’s nothing magical that occurs then, no mystical event. It just means that someone can actually take advantage of the right existing. Until we reach that point, there’s not really anything to walk about.

Feelings Don’t Make Good Policy

West Virginia abolished the death penalty in 1965. We haven’t actually executed anybody since 1959. There are many things about this state that can be embarrassing, but that’s something I’m always proud of. From my perspective, the six states that have abolished the death penalty over the past few years (Maryland is the latest) are just following our lead.

Leave it to a long-term House of Delegates member to try and drag us back into the past.

John Overington, a GOP delegate from Berkeley County, has introduced a bill to bring the death penalty back to West Virginia. This is not a recent change of heart for him – he’s done the same thing for the past 26 years. Thankfully, his bill has been dead on arrival in all those years and, most likely, will be again.

I respect people, like Overington, who think capital punishment is a legitimate part of a proper justice system. I think they’re wrong, of course, but they have deeply held convictions (so to speak), just like I do. I just wish they’d come up with better arguments to support their positions, one that didn’t sound like they were just pulled from the ether. For example:

Overington said he will continue pushing such bills because he thinks the state would be better served if it could execute convicted murderers.

‘You want to live in a just society that is fair, and capital punishment, if somebody is murdered, I think there’s a perception that you have fairness if that person is put to death,’ Overington said. ‘It sort of adds to the fairness of our society and helps make it work. If you feel that our justice system is fair, it helps you believe in it.’

Feelings aside, I’m not sure anybody would use “fair” as the primary descriptor of the American death penalty. It’s disproportionately deployed against the poor, African-Americans, and those without access to high-priced legal help. Add to the mix the fact that those cases become potential career makers for prosecutors and there’s lots of potential unfairness built into the system. But ignoring those problems makes Overington “feel” better about the justice system, so it’s all OK.

On the question of fairness in the justice system, it boggles the mind that Overington is either unaware of, or has overlooked, one of the great criminal justice scandals of the late 20th century that occurred right here in West Virginia, all while Overington was pushing to bring back the death penalty.

Fred Zain was a serologist in the West Virginia State Police crime lab. He dealt with various bodily fluids – semen, blood – left at crime scenes. After a spectacularly notorious rape case against a man who had served five years in prison fell apart when Zain’s work was closely scrutinized. In the end, an investigation ordered by the state Supreme Court of Appeals (and, to be fair, instigated by the Kanawha County prosecutor) revealed fraud on Zain’s part on a massive scale:

Hundreds of blood tests that West Virginia prosecutors have used to link defendants to crime scenes over a 10-year period are now invalid because a former State Police serologist may have fabricated the results, the West Virginia Supreme Court of Appeals has ruled.

At the court's request, an independent team of serologists spent the last five months combing through the testimony of Fred Zain, the State Police serologist from 1979 until 1989. In the 36 cases it investigated, the team said, it discovered that Mr. Zain had lied about, made up or manipulated evidence to win convictions in every single case.

Emphasis mine, because, for fuck’s sake . . ..

All told, 134 convictions were called into question. In an opinion laying out the procedure for challenges those convictions, the court concluded:

The matters brought before this Court . . . are shocking and represent egregious violations of the right of a defendant to a fair trial. They stain our judicial system and mock the ideal of justice under law.

And while the court later concluded that Zain’s fraud wasn’t replicated by other technicians in the lab, the whole system nonetheless failed:

This corruption of our legal system would not have occurred had there been adequate controls and procedures in the Serology Division. [The] report is replete with deficiencies and derelictions . . ..

Of course, problems in crimes labs aren’t unique to West Virginia. But if any state should give the ultimate punishment a wide berth, it’s the state of Zain.

More problematic is that Overington is being guided by another feeling – fear – that’s completely unfounded:

Other than Maryland, all of West Virginia’s neighbors still have the death penalty - and Overington said he fears that West Virginia invites killers by not having capital punishment as a deterrent. However, West Virginia’s homicide rate for the past 10 years is lower than that of all neighboring states, according to FBI data.

Indeed, West Virginia famously has had a low crime rate for years (if not decades). It’s one of the few state ranking lists where we’re consistently near the top. It’s unlikely that killing the odd inmate every few years will make us any safer.

Lest you think Overington is alone in his quixotic quest, he does have some bipartisan support:

The bill has one Democratic co-sponsor, Del. Rupert Philips [Logan County], who said that people he’s talked to while campaigning seem to support it.

‘When’s enough enough? We’re wasting tax dollars trying to prosecute them,’ Philips said. ‘An eye for an eye.’

This is, of course, false. It costs exponentially more for a state to execute someone – or even seek the death penalty without achieving it – than it does to lock someone in a cage for life. Prosecutors and law enforcement investigators would need more money. My colleagues in the state public defender system would need serious reinforcements if they took on capital cases – they are a complete time sink for even the most experienced of litigators. Hell, even my office would need serious expansion for the federal habeas corpus proceedings that would be necessary. Finally, the courts would need revamping. West Virginia has no mid-level appellate court, which would be a must if we’re going to try and execute people.

The bottom line is that not only is Overington’s crusade based only on “feelings,” those feelings are contradicted by empirical evidence. Squishy feelings are an understandable, and maybe even a good place, to start when thinking about an issue. But, eventually, if everything tells you your feelings are wrong, you’ve got to go back and rethink your conclusions.

Friday Review: Harbor Lights

Few albums make such an impression on you that, decades later, you can recall the very first time you heard it.

It’s spring 1993, second semester of my freshman year of college in Morgantown. Finals time. As is the wont of college students, once I was done with each class I sold back as many of my textbooks as possible. Lots of folks used that extra cash for end-of-the-year booze binges. I used mine for something altogether more important – new music.

My main source of music back then, in the days before the Internet (when dinosaurs ruled the earth, kids!), was the Discount Den, which had an admirable supply of both new and used CDs, not to mention other necessities of college life. By which I mean cheap beer and inflatable sheep. But I digress . . .

Bruce Hornsby hadn’t released an album since 1990’s sort of disappointing A Night on the Town. Regardless, he was one of several artists I’d always check on at the Den to see if there was anything new. As it happened, on that day when I was flush with post-finals cash, there was Harbor Lights. I picked it up along with a few other things that I can’t remember. No, I don’t mean the sheep. Why are you asking?

Back in my dorm room in Arnold Hall, my roommate was asleep in the middle of the afternoon, fighting off a migraine. No problem. I whipped out some headphones and settled in at the desk by the window to dig in to my new tunes. I must have listened to something else first, because my first moment with Harbor Lights was with the liner notes, not the music itself.

And what interesting liner notes they were, too. For one thing, this was just a “Bruce Hornsby” album. The Range, with whom he’d had popular success, was gone, save for drummer John Molo. For another thing, the roster of those who showed up to fill their shoes was, well, awesome – Branford Marsalis, Pat Metheney, and Phil Collins, among others.

Musically, the album begins simply with solo piano, almost as if Bruce is clearing the field for what follows. By the time the main “band” for this record – Bruce, Molo, and Yellojackets’ bassist Jimmy Haslip – crank up, it’s clear that something different is going on. I sat by the window with my mouth hanging open. Seriously.

Without a doubt, the exceptional songwriting that’s always been part of Bruce’s thing is there, but now it’s being deployed in the service of music that’s much richer, deeper, and more interesting than his Range days. This is the kind of music you’d expect from somebody who jammed live with everybody from Ricky Skaggs to the Grateful Dead to Bela Fleck. I don’t know if Bruce’s failure to live up to the commercial success of “The Way It Is” finally got the record company off his back or what, but things haven’t been the same sense.

Harbor Lights marked the beginning of what, to me, is Hornsby’s halcyon days (pun intended), when the disparate influences he always gleefully showed off during live shows came into the studio. He’s no longer a household name, but he’s made a career out of relentless touring and musical collaborations. And he’s one of my favorite musicians on the planet.

Details
------------
Harbor Lights, by Bruce Hornsby
Released 1993

Tracks:

1. Harbor Lights (7:11)
2. Talk of the Town (5:11)
3. Long Tall Cool One (4:59)
4. China Doll (5:16)
5. Fields of Gray (4:52)
6. Rainbow's Cadillac (4:37)
7. Passing Through (5:58)
8. The Tide Will Rise (3:55)
9. What a Time (4:03)
10. Pastures of Plenty (6:37)

Players:
Bruce Hornsby (vocals, piano, organ, accordion)
Jimmy Haslip (bass)
John Molo (drums)

with, among others:
Pat Metheny (guitar)
Branford Marsalis (saxophone)
Phil Collins (backing vocals, percussion)
Bonnie Raitt (backing vocals)
Jerry Garcia (guitar)

A Rose By Any Other Name? Sadly, No

As a frustrated writer of short fiction, I’ve become all too familiar with the form rejection. It’s frustrating. It’s also par for the course for an (essentially) unpublished writer. Everybody has to start somewhere, right?

Still, it can be awfully compelling, when receiving the dozenth rejection of a particular story, to think that maybe something else it as work here. Surely, the problem isn’t that your writing simply isn’t good enough. It’s because you’re not a big name, right? It’s enough to almost make you want to buy into this “experiment” reported over at Slate.

Writer and editor David Cameron (not the British Prime Minister, for the record) came up with a clever ruse:

I grabbed a New Yorker story off the web (no, it wasn't by Alice Munro or William Trevor), copied it into a Word document, changed only the title, created a fictitious author identity, and submitted it to a slew of literary journals, all of whom regularly grace the TOC of Best American Short Stories, Pushcart Prize, O’Henry, etcetera and etcetera. My cover letter simply stated that I am an unpublished writer deeply appreciative of their consideration.

The result shouldn’t be all that surprising – Cameron’s story got summarily rejected:

Dear reader, every single one of these journals rejected my poor New Yorker story with the same boilerplate ‘good luck placing your work elsewhere’ auto-text that has put the lid on my own sorry submissions. Not a single personal pleasantry. What’s more, the timeframes tracked perfectly. For example, if the Beavercreek Fucknut Bulletin (not a real journal, but representative) generally takes thirty days to relegate my stuff to the recycle bin, then our New Yorker story—which must have been thoroughly confused at this point—fared no better.

For the record, I’m giving serious consideration to starting the Beavercreek Fucknut Bulletin, or at least printing up T-shirts.

The ultimate insult, however, was that even the New Yorker itself rejected the story, without any hint that the rejection was due to the fact that the story had, in fact, already been published.

As the Slate piece mentions, Cameron’s experiment is not exactly breaking new ground:

There was the guy who sent Jane Austen novels to several U.K. publishers five years ago, as if it made sense to write 19th-century-style fiction in 2007. (Even assuming that some of the publishers did not recognize, e.g., Pride and Prejudice—which I doubt—it would still read like pastiche, and not very interesting pastiche.) There was the other guy who sent part of a lesser Jerzy Kosinski novel around [more on that here – JDB]. That same guy (and they are all, for some reason, guys) submitted the script of Casablanca to a bunch of movie agents—as if the movie business had not changed a whit since 1942, and those agents who were foolish enough not to recognize the classic dialogue were proving some point about how the people at the top have no idea what they’re doing.

Thus, it’s hardly news that the name attached to a story might help it find a publisher. After all, what’s going to sell more copies or trigger more downloads, a fresh story by Neil Gaiman or John Scalzi? Or some story by a schmuck lawyer who writes fiction in his spare time that nobody’s ever heard of? After all, most markets I’m familiar with want to know what other publishing credits you’ve notched up. If the pure merit of the story was enough to get it published, why should they care?

The bigger issue, of course, is why a name is so important when it comes to art? Why doesn’t the work itself stand on its own merit? Consider the saga of Teri Horton.

Horton, a retired long-haul trucker, bought a painting for $5 in a thrift shop as a joke gift to give to a friend. It was too big to fit into the friend’s house, however, so it lived in Horton’s garage until an art teacher spied it and wondered if it was a Jackson Pollock. Horton’s response - “who the fuck’s Jackson Pollock?” – gave the title to a documentary about her later crusade to establish the painting’s authenticity and, more importantly, it’s value. If it’s really a Pollock, it’s worth millions. If not, it isn’t.

But here’s the thing – either you like the painting or you don’t. I happen to like Pollock’s style and those who followed (K, the fiancé, most definitely does not – can this marriage me saved?). While there’s something to be said for going back to the source, at the end of the day the quality should stand on its own. Right?

Of course, I’m guilty of this myself. Take this, from my review of the latest Marillion album, Sounds That Can’t Be Made:

Sounds That Can’t Be Made is a pretty good record. Admittedly, I’m a fanboy, so even bad Marillion album (I’m looking at you, Holidays in Eden) ranks pretty high compared to the rest of the world. But it’s not amongst their best work and, in 2012, that means it’s pretty far down the table.

In other words, had a band other than Marillion (say, maybe, the Beavercreek Fucknut Bulletin) made that album I’d have liked the album better. That’s the flipside of blessing it with higher esteem because of the name attached to it. I’m no better than the slush pile readers Cameron was trying to tweak.

Which should not be a surprise. We all try and make a “name” for ourselves, after all. Writers are no different. Heck, I pimp my one measly credit for all it’s worth. Not because it’s required or expected, but because I want to suggest that, just maybe, I’m not full of shit with this writing thing. Unfortunately, the nature of the business means that the only way I’ll ever find out if that’s true is if someone out there looks past the name (or lack thereof) and falls in love with something I’ve written.

Hey, a guy can still dream, can’t he?

A Legacy Unfulfilled

The COURT: I am sorry, but I cannot appoint Counsel to represent you in this case. Under the laws of the State of Florida, the only time the Court can appoint Counsel to represent a Defendant is when that person is charged with a capital offense. I am sorry, but I will have to deny your request to appoint Counsel to defend you in this case.

The DEFENDANT: The United States Supreme Court says I am entitled to be represented by Counsel.

The “DEFENDANT” in that passage was Clarence Gideon. At the time he made that request in 1962, he was actually wrong. The Supreme Court had held that, unless there was some particular reason that a defendant couldn’t represent himself (mental illness, illiteracy, etc.) he had no right to counsel. Gideon went to trial and was convicted. Then he wrote petition, in pencil, to the Supreme Court. With an assist from future Justice Abe Fortas, Gideon would fundamentally change the American legal system.

Fifty years ago today, the Supreme Court announced its decision in Gideon’s case. Unanimously, the Court rejected its old precedent and held that every person charged with a crime (that carries a sentence of jail time) has a right to an attorney, appointed at state expense if they can’t afford one. Justice Black, writing for the Court, wound up the opinion in lofty, aspirational language:

reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public's interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the wide—spread belief that lawyers in criminal courts are necessities, not luxuries.

To be fair, the writing was on the wall when it came to appointing counsel for indigent defendants. Florida didn’t send its top appellate lawyer to argue the case, instead entrusting it to an assistant attorney general who had never argued before the Court before. And his attempts to bolster his case didn’t go well:

An effort by Jacob to get other states to file an amicus brief extolling the dangers to federalism of requiring counsel for indigent defendants drew only two supporters (Alabama and North Carolina). Meanwhile, the letter from Jacob prompted a young, up-and-coming politician, Minnesota Attorney General Walter F. Mondale, to organize an amicus from states urging that Betts be overruled. Twenty-three states signed on.

It all paid off for Gideon in the end. At a retrial where he was represented by counsel (although not by volunteers from the ACLU whom he turned down), Gideon was acquitted. He couldn’t get back the time he lost in prison, of course, but at least he lived the rest of his life as free man.

I owe a debt to Gideon (and Fortas), since without his case I doubt the public defender system of which I’ve been a part for the past 13 years wouldn’t exist. Although that case didn’t technically deal with the right to counsel on appeal, the entire apparatus in which I work owes its beginning to Gideon’s pencil-written petition.

Alas, 50 years out from the Court’s decision, we as a society still struggle to provide adequate representation to indigent criminal defendants. In fact, that failure has become a common feature in reports about the court system :

A 2004 report by the ABA, Gideon’s Broken Promise: America’s Continuing Quest for Equal Justice (PDF), laid out the top concerns. The chief one is that indigent defense services are not adequately funded, leading to an inability to attract and compensate good lawyers, as well as to pay for experts and investigators. Meanwhile, defenders of the indigent are often inexperienced, fail to maintain proper contact with their clients, or are not competent to provide services that meet ethical standards. And judges sometimes fail to honor the independence of defense counsel and routinely accept representation of indigent defendants that is patently inadequate.

There were more specifics, of course, but the report’s bottom line was that ‘40 years after Gideon v. Wainwright, indigent defense in the United States remains in a state of crisis, resulting in a system that lacks fundamental fairness and places poor persons at constant risk of wrongful conviction.

Ten years on, things are in no better shape, particular in state courts. One repeated recommendation of reports on indigent defense is that statewide systems are best as delivery quality representation. Unfortunately, only 24 states have statewide public defender systems. The federal system is both broader and more integrated (IIRC, only one federal district is without a defender office of some kind) and, as a result, generally performs better.

As an example of what it can be like at the state level, check out the situation in Wilkes-Barre, Pennsylvania, detailed recently in USA Today:

If he came back today, Clarence Gideon might rue the quality of legal representation he'd receive. He might not get any at all.

Such was the fate last year of some indigent criminal defendants who walked in the public defender's door here and past Gideon's gaze. They were told that, because of a shortage of staff lawyers, the office was turning down all but the most serious new cases. They were given a letter to show the judge.

Al Flora, Luzerne County chief public defender, says that ethically and legally he had no choice: His overburdened lawyers couldn't take on new clients and do justice to those they already had. He sued county officials — his bosses — to let him hire more lawyers and to stop them from retaliating against him.

That situation may be exceptionally bad, but it’s a good example of problems faced across the country.

We send more people to prison than any other country on the planet. Our greatest grown industry is building prisons. Legislators, at the state and national level, respond to every problem that arises with more laws that define more crimes and require more severe punishments. Yet, for all that, we don’t make sure that the people charged with those crimes get adequate representation. It’s a failure of fundamental fairness.

In Gideon, the Court wrote that:

[t]he right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.

Sadly, that’s as true today as it was 50 years ago.

Friday Review: The State of Jones

A title is a promise, at least for a work of nonfiction. It’s what draws you in, after all, and convinces you to give a book more attention. The full title of this book by Washington Post reporter Sally Jenkins and Harvard professor John Stauffer is The State of Jones: The Small Southern County That Seceded From the Confederacy. It’s a case that Jenkins and Stauffer don’t make.

Which is a shame, because the story they have to tell is fairly fascinating in its own right and something that a lot of Americans don’t know about. Revolving around a backwoods Mississippi “dirt farmer” named Newton Knight, it’s a tale of racial and class divisions before, during, and after the Civil War. Poor farmers from areas of Mississippi like Jones County had little interest in defending the ability of wealthy elites elsewhere to own slaves. Faced with the horrors of war in places like Corinth and Vicksburg and with families starving back at home due to shitty wartime economics, Knight and a group of others deserted from the Confederate army and headed back home.

Back in the Mississippi countryside, Knight and company organized an armed group that basically made life impossible for the Confederacy in Jones and surrounding counties. In addition to skirmishing with soldiers dispatched to arrest them for desertion, Knight’s group raided Confederate supply lines and tax collectors. It’s fair to say, based on the evidence presented in the book, that Jones County was effectively outside the sphere of Confederate power well before the end of the war.

But that’s not the same as secession. Maybe it’s because I’m a West Virginian and familiar with our unique history when it comes to the birth of the state and kind of sensitive about it, but secession is a formal, political act, not the de facto result of guerrilla military activity. Jenkins and Stauffer never provide evidence of such an act and, in fact, don’t really show whether Knight and his company were more pro-Union insurgents or simply a group of outlaws who gathered together to protect themselves and, as a side effect, cleared the Confederates from Jones.

It’s an important distinction because there was a hot debate when The State of Jones came out about its quality as work of history. Detractors argued that Jenkins and Stauffer massaged the historical record (and filled in gaps with imaginative extrapolations) to make Knight more of a modern progressive figure than he actually was (see, e.g., here and here). As for the question of secession itself, in part two of her three part review, professor Victoria Bynum (author of another book on Jones County) writes:

The old tale that Newt Knight and his band of renegades drew up a Constitution during the Civil War that declared Jones County, Mississippi, to have seceded from the Confederacy has been a favorite of journalists, folklorists, and even a few historians, since the late nineteenth century. Until historians finally shattered this myth, its effect was to paint the men of the Knight Company as hyper-secessionists rather than Unionists; i.e. as good old Southern white boys on a tear against any and all authority—rebels against the Rebellion, if you will.

Stauffer’s defense is, in my opinion, weak:

From Newton Knight’s perspective, neither he nor his fellow Unionists seceded from the Union, which means they were never part of the Confederacy. Knight insisted that since Jones County had voted against secession, it ‘never seceded from the Union into the Confederacy.’

But from the perspective of the Confederacy, Knight and his fellow Unionists did secede. Confederate officers wrote that Jones County was in ‘rebellion’ against the Confederacy, and they referred to Knight and his men as ‘traitors.’ These were the same terms Republicans used to describe Confederates.

It simply doesn’t work that way. Whatever irregularities existed with Jones County’s delegate to the Mississippi secession convention (the book alleges that he switched his position and voted for secession, even though the county had voted overwhelmingly against it), the convention voted to secede and the state as a whole was along for the ride. As was Virginia, of course, except for the counties west of the Alleghenies that stood up, said “bullshit to this,” and created, eventually, the state of West Virginia. Statewide votes are binding on the entire state. Individual disaffected voters don’t get to ignore results they don’t like.

Aside from the whole secession issue, The State of Jones has some other flaws that keep it from being easily recommended. For one thing, it’s focus shifts without any good reason from the more personal story of Knight and his family to broad depictions of several major engagements during the war (one of which, Bynum argues, Knight wasn’t present for). Those get tedious, mostly because they drive home the same point each time – war is hell, the Confederate foot soldier’s life was one of near constant starvation and disease, and it’s easy to see why anyone would want to escape it. Once we’ve gotten that point, do we really need it made over and over again?

Another problem with the book is, as noted above, its use of speculation and conjecture to fill in the blanks of Knight’s life and the lives of those around him. To be completely fair, Jenkins and Stauffer don’t hide it when they do it. To the contrary, many times they discuss a particular event, then transition into something along the lines of “we don’t know what Knight thought about this, but it might have been . . ..” Nonetheless, it’s frustrating to have the actual history whither down such dead ends.

I’m glad I read The State of Jones, if only because I knew nothing about this particular part of the Civil War before. But, after reading it and much of the discussion about it around the Web, I wouldn’t recommend it. There are other, more scholarly (if drier, perhaps), accounts out there. But The State of Jones is the one most likely to be encountered by the general public. That’s OK, if it serves as a jumping off point, rather than a comprehensive education.

The Details
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The State of Jones: The Small Southern County That Seceded From the Confederacy
By Sally Jenkins and John Stauffer
Published 2009

Time Is Money (and So Much More)

One of the crueler ironies of the current criminal justice system is the disparate way it treats people being released from prison.

If you’re guilty and coming to the end of a full sentence, the system is designed to help ease your transition back into the real world. There’s counseling, an emphasis on making plans for life outside of prison, and a (overburdened and underfunded) support system waiting upon release to make sure a person doesn’t fall back into bad habits. At least it’s supposed to work that way.

Not so if you’re actually innocent of whatever sent you to prison in the first place. The wrongfully convicted, who can lose years of their lives in a cage waiting for the justice system to get things right, aren’t necessarily given much help at all.

Consider what happened to Robert Dewey, who was locked up by the state of Colorado for a murder he didn’t commit. Nearly 18 years later, DNA not only cleared Dewey but linked the murder to someone else:

After years of work by his court-appointed lawyer, Danyel Joffe, the Innocence Project came on board in 2007 and paid for tests that showed no DNA links between Mr. Dewey and the crime scene. His conviction was reversed, and he was released last April. He left with an apology and a handshake from prosecutors in Mesa County, he said, but little else.

Colorado, like nearly half the states, doesn’t have any scheme for compensating people who have been wrongly imprisoned, although legislation providing for $70,000 per year in prison is working its way through the state legislature.

Dewey’s case is a particularly good example of this problem because DNA exonerations tend to take place in cases, like murders and rapes, where defendants are sentenced to lengthy terms, including life, which makes any attempt at rehabilitation unlikely:

Because Mr. Dewey had been sentenced to life, he said, he never touched a computer or took any vocational classes while he was in prison. He came out awe-struck by a world that had gone online and turned digital. The first time he walked into a Walmart, he said, he was so overwhelmed by its colors and scale that he had to run outside to smoke a cigarette.

I have to admit, I’m regularly overwhelmed at Walmart, but not because of the colors.

Dewey’s case is also a good example of the poor medical care that inmates sometimes receive while in prison. He’s currently unable to work because of a back injury that was aggravated while in prison. All in all, this seems like a correct assessment:

’God bless him, but the system has created him the way he is,’ said Stephen Laiche, one of Mr. Dewey’s lawyers in his 1996 trial. Mr. Laiche is now working to seal Mr. Dewey’s records from the murder case. ‘Are we surprised that he can’t get a job? Because we wrongfully convicted him, he couldn’t work for 20 years.’

Society owes a duty to anyone it locks in a cage to try and help them move back into the outside world. Not out of any kind of bleeding heart charity, but just because it’s better for them and us if they become productive, law-abiding citizens. That duty is doubly critical to those whom we had no reason to lock away in the first place. Seventy grand, or an even larger amount, isn’t much for a years of a man’s life disappeared, but it’s the least we can do.

There Are Things Worse Than Mercy

Clemency - when a governor or the president either lessens a person’s sentence or overturns his conviction - isn’t something that happens very often. Many words have been written on Obama’s stingy record when it comes to clemency, but the fact is he’s not that much worse than his predecessors. Sadly, politicians are just not that enthused to use political capital to release someone from prison who might, when it’s all said and done, go out and do something awful. One of those is all it takes to destroy a political career. Weighed against that, the reward for doing the right thing just isn’t that great.

Which is a long winded way of saying, when the governor calls and tries to lessen your penalogical burden, you say “yes!” But death, as they say, is different and sometimes capital punishment makes people do strange things.

Consider the case of Gary Haugen (via), convicted of murder in Oregon in 2007 (committed in prison while already serving life for another murder). Haugen is what they call in the capital punishment biz a “volunteer,” in that he wants to die. Or, at least, he’s waived his remaining appeals and collateral challenges to his conviction in order to bypass the years that might pass before he’s executed. If you’re the state of Oregon, so far so good, right?

Enter Oregon Governor John Kitzhaber. Kitzhaber is a death penalty opponent and he utilized his executive authority to offer Haugen an “unconditional reprieve,” after a fashion. It’s actually a reprieve that will expire when Kitzhaber leaves office and is part of a blanket decision on his part not to carry out any death sentences during his term because of problems with the death penalty. So it’s not much of a reprieve, and certainly not a commutation to a life sentence or a pardon.

Regardless, here’s the catch with Kitzhaber’s limited attempt at beneficence – Haugen doesn’t want it. Now the Oregon Supreme Court is set to decided whether an inmate can refuse an act of clemency handed down by the governor.

At first blush I would have never thought that clemency was something someone could refuse. It’s an act of executive grace, after all, which can neither be demanded* nor reviewed, so how could the receiving party turn it down? However, that’s not what a lower court decided, identifying a 1833 Supreme Court decision that allowed a prisoner to refuse a pardon. The Governor counters that newer cases undermine that idea and that:

’No state court appears to have required that, as a general matter, an unconditional grant of clemency be accepted to be valid,’ [the Oregon Solicitor General] wrote. ‘Instead, the case law surrounding the clemency power reaffirmed that the power was expansive.’

Haugen’s argument is based on both clemency law as well as federal notions of due process and cruel and unusual punishment. This passage from the argument summary section of his brief seems to sum up the core of his position:

Mercy cannot be forced upon someone any more than a gift can be, and what one person considers to be a benefit, another might consider to be an injury. A purported act of benevolence that can be forced upon someone who does not want it is a contradiction not only in terms, but of concepts. Here, Mr. Haugen considers Governor Kitzhaber’s action, as well-intentioned as it might be, to be profoundly dehumanizing and cruel. It makes him an unwilling pawn in the Governor’s desire to ‘allow’ Oregonians to engage in a debate over the death penalty, even though nothing has impeded them from engaging in that debate ever since they overwhelmingly voted to establish the death penalty nearly 30 years ago. Because Governor Kitzhaber obviously cannot determine whether his successor as Governor will continue the moratorium he has imposed, Mr. Haugen could be put to death by lethal injection as soon as Governor Kitzhaber leaves office. . . . The ostensible reprieve therefore makes plaintiff live for up to seven years under an awful pall of uncertainty regarding whether, and when he will be put to death.

That is not something Mr. Haugen wants, and not something he sought.

A third party involved in the case is the ACLU, which filed an amicus brief from its office between a rock and a hard place. On the one hand, the group is furiously anti-capital punishment. On the other, it generally takes positions that maximize an individual’s control over his own life and even the right to end it (as Haugen explains in his brief, he doesn’t want to die – the state wants to kill him – he just doesn’t want to unduly prolong the process). In the end, it comes down on the side of Kitzhaber, arguing that his clemency authority extends to temporary reprieves such as this one used to “promote the public welfare” by, among other things, forcing a discussion on the nature of Oregon’s death penalty.

While I understand the structural basis for the ACLU’s argument, as well as Kitzhaber’s, I’m not sure they should prevail in this case. I’m particularly troubled by the temporary nature of the reprieve. It would be one thing if Kitzhaber simply commuted Haugen’s sentence to life, as George Ryan did in Illinois while he was governor. But the uncertainty of this reprieve, which may only prolong the inevitable for Haugen, adds an extra layer of cruelty to the whole situation. Haugen may have earned his punishment, but nobody should be made a pawn in a political game in which they have no real input.

If the death penalty in Oregon is broken, then commute those currently sentenced to death to life in prison and fix the system. Or, better yet, join the rest of the civilized world and scrap the barbaric practice altogether. Stand up and put your money, and your political capital, where your mouth is, Governor. Stop playing games.

* Obviously, you can ask the governor or president for a pardon or commutation. What I mean is that, unlike a court action, there’s no combination of factors that, if proven, will lead to success. The final decision lies completely within the executive’s unreviewable discretion.