A State By Any Other Name

A century and a half ago, today, my home state actually became a state. So, happy birthday, West Virginia! But, did you know, West Virginia almost had a different name? And if it had, might things have worked out a little differently for those of us born without an aunt in Richmond (or, for Charlestonians, near the beach)? When the voters of the counties that would become West Virginia voted (mostly) not to leave the Union, the name originally given to the area was Kanawha, after the Kanawha River that flows through Charleston and into the Ohio. That did not go over very well when the Wheeling convention drafting the new state’s constitution got underway in December 1861. One delegate objected, arguing:

one reason I have for striking it out is that I am a Virginian. . . . It always makes me think of the Virgin Mary, the mother of our blessed Redeemer. It is a name that I almost revere; and I am utterly opposed to leaving it out and substituting the name ‘Kanawha’ in its stead.

Some other delegates harrumphed the importance of maintaining a link to Virginia. Another objected that naming the state Kanawha would lead to confusion with Kanawha County. He concluded:

Therefore I can see no peculiar claim that Kanawha has. There is a very pretty river there of this name - nice river - but there is no particular euphony in the name; or perhaps no claim from historical considerations. I do not know of any.

Anyone who’s heard someone from out of state try to pronounce “Kanawha” has to admit it does have some problems in the euphony department. Still another objecting delegate noted the beauty of the Kanawha river and valley and “suppose[d] they are very clever people,” which is a wonderfully backhanded compliment. Other names were proposed – Western Virginia, New Virginia, Columbia, Allegheny, Augusta and, of course, West Virginia.* It prevailed overwhelmingly in the final vote (getting three times more votes than poor Kanawha). While one of the reasons given for not naming the new state Kanawha was to avoid confusion with the already extant Kanawha County, there were similar concerns expressed about having “Virginia” in the name, too:

this thing may have some practical effect. You are so attached to Virginia that you are unwilling to lose the name. You look for immigration from other states. Will it be one of the means of inducing them to come here that you tell them that this is Virginia still - that you are to create the impression that Virginia policy is still to govern? Gentlemen, let that impression go abroad through the land, and the very name of Virginia, the very idea that Virginia may still prevail over this portion of the State, will prevent hundreds and thousands from coming within your borders.

Another delegate was more blunt:

Sir, there is more in this than perhaps I have said. If you make an agreement with eastern Virginia that after the division takes place, one is to be called East and the other West, or one is to be called Old Virginia and the other New, there might be less impropriety in it; for then it would indicate a division of territory, but, sir, under any circumstances they are to retain the name. They are to be Virginia and we are to be Little Virginia or New Virginia, or West Virginia, or some other soubriquet which is to degrade us in comparison with them. That is what gentlemen are driving at, sir.

Those concerns turned out to be valid. Sure, there are other states with geographically based names, but they’re complimentary to each other – North Dakota has its South Dakota, South Carolina has its North Carolina. But there is no East Virginia, just plain old Virginia. Making things more confusing, there is still an area referred to as western Virginia (a large hunk of which, to make things even more confusing, lies to the south of West Virginia!). It’s not hard to have sympathy for folks raised elsewhere who can’t really separate West Virginia from the old commonwealth (hence the “an aunt in Richmond” joke).

Would our founding fathers have been wise to listen to those concerns and choose a name that was completely unique? It probably wouldn’t have hurt. But I doubt it would had made a huge difference over the past 150 years. A name is not destiny and West Virginia’s current state has more to do with geography, shifting economic winds, and good ole’ fashioned political shenanigans than anything else.

Besides, regardless of what the state would have been called, it would still be Almost Heaven. Still full of beautiful vistas and babbling mountain streams, deep green mountains and rolling valleys. It would still be home to the same kind of slightly-out-of-step-with-modernity population it has today. Whatever it was called, West Virginia would still be West Virginia.

And, hey, if Futurama’s any guide (and when has it led you astray?), we’ll get our revenge on the mother commonwealth:

We’ll just have to wait another thousand years or so.

* NOTE: I’ve always seen “Vandalia” listed as one of the proposed names, but I don’t see it in this transcript, at least. Wikipedia includes it, however. Make of that what you will.

Are You a Copyright Scofflaw?

That sounds like an odd question to ask in the 21st Century, in the era of Bittorrent, when the breakthrough of Napster fades like a crumbling building in the rear view mirror, doesn’t it? But I’m not talking about anything electronic, anything dealing with the Internet, or even the complaints that the modern generation thinks everything should be free. I’m talking low tech. I’m talking old school. I’m talking something you do only around your closest family and most dear friends. I did it just this past Sunday. I’m talking . . . about singing “Happy Birthday.” Yes, that’s right, it appears that “Happy Birthday” is copyright protected:

If you want to sing the song on TV, or in a restaurant, or whatever, you have to pay a licensing fee to Warner/Chappell, the music company that owns the rights. The company makes about $2 million a year off the song, according to one estimate. 

* * *

The story of the song is long and weirdly complex. The short version is: A pair of sisters published a song called ‘Good Morning to You’ in 1893. Over the next few decades, the song morphed into ‘Happy Birthday to You.’ In the 1920s and '30s, a couple versions of the birthday song were published in copyrighted songbooks.

That’s why, for instance, when you see some poor schmuck being embarrassed by a phalanx of unenthused waitpersons on her birthday at some restaurant they’re never actually singing “Happy Birthday.” It’s cheaper to have someone write a song just for that chain (and, hey, you get the brand out there more!). But that may soon change, thanks to director Jennifer Nelson, who made a documentary on the song’s history and place in the culture. When it came time to put an actual performance of the song in the film, she found she had to pay Warner/Chappell $1500. She’s not alone:

Ms. Nelson is not the first documentarian to confront the issue of paying to use the Happy Birthday song. The filmmaker Steve James paid $5,000 to use the song in the acclaimed 1994 documentary ‘Hoop Dreams,’ in which it is sung at a man’s 18th birthday party. ‘It was an important scene,’ Mr. James said in a 2005 article in The New York Times, ‘there was some amazement that Arthur had made it to 18. Of course, we wanted that in.’

What Nelson has done is take the whole matter to court, seeking to have the song declared part of the public domain (the suit is based on work done in a law review article a few years ago). I don’t know enough about copyright law (or the tortured history of “Happy Birthday”) to offer an opinion on her chances of winning. I hope she does, though. Who needs the threat of Warner/Chappel’s enforcers breaking down your door just as the cake and ice cream gets handed out?

Friday Review: The Raven That Refused to Sing (and Other Stories)

I’ve had a strange relationship with Steven Wilson. Or with his music, anyway.

My first exposure to his stuff was Porcupine Tree’s The Sky Moves Sideways, which left me completely unimpressed. It wasn’t until I heard Porcupine Tree in their later, more streamlined Stupid Dream phase (via a webcast of their set at NEARFest) that something clicked. I’ve been a fan since, although I’ve not dug back into the older stuff (Sky . . . still doesn’t really do it for me).

Given that Porcupine Tree is essentially Wilson’s baby, it made sense to check out his other stuff. I really like most of what I’ve heard of No-Man (his collaboration with vocalist Tim Bowness) and would really like to get my hands on his droney ambient project Bass Communion (they’re maddeningly hard to come by). So when Wilson went “solo,” such as it was, I came along for the ride.

His first album, Insurgentes, mined a lot of his influences that were tangential to progressive rock, if they had any relation at all. As such, it’s not overtly “proggy,” but has a pan-genre inclusiveness to it that makes it really interesting. I like it more than most people, however. Grace for Drowning, his second effort, wore the influences of his work remixing the King Crimson catalog and went down a much more prog-through-the-lens-of-jazz path. In spite of an amazing list of collaborators, Grace . . . has never done much for me.

Which brings us to The Raven That Refused to Sing (and Other Stories). To tour Grace . . . Wilson put together a killer band that included Marco Minnemann, Theo Travis, and Nick Beggs. From that tour he took those guys right back into the studio for The Raven . . .., hoping to capture some of the energy of the live shows.

The result is pretty impressive, even though it doesn’t get me as excited as it does many prog fans. The Raven sounds even more like an homage to 70s symphonic prog, right down to the extensive use of the original King Crimson Mellotron (it pays to be friends with Bob Fripp). It’s used to particularly good effect near the end of “Luminol,” which in other places fires off riffs that remind me of “21st Century Schizoid Man” (or, more recently, another Wilson collaborator – Steve Hackett’s “Mechanical Bride”). The highlight for me is “Holy Drinker,” with some fantastic organ and synth bits. The title track is also a beautiful, mournful cap to the whole experience.

I’ve lived with Grace for Drowning since it came out, waiting for it to grow on me and rip my head off. It’s never happened. But in the few weeks I’ve had to digest The Raven . . ., I’ve found myself warming to it noticeably. Not an immediate “wow,” but definitely an impressive, layered grower. There’s nothing wrong with that.

Details
------------
The Raven That Refused to Sing (and Other Stories), by Steven Wilson
Released 2012

Tracks:
1. Luminol (12:10)
2. Drive Home (7:37)
3. The Holy Drinker (10:13)
4. The Pin Drop (5:03)
5. The Watchmaker (11:43)
6. The Raven That Refused To Sing (7:57)

Players:
Guthrie Govan (lead guitar)
Nick Beggs (bass, Stick, backing vocals)
Marco Minnemann (drums, percussion)
Adam Holzman (Rhodes, Hammond, piano, Minimoog)
Theo Travis (saxophone, flute, clarinet)
Steven Wilson (vocals, guitars, bass keyboards, Mellotron)

Another Take On Punishment and Rehabilitation

Two words I would not associate with the criminal justice system are “swift” and “certain.”

Take a conversation I had with a client a couple of weeks ago. I was explaining the prospects for his case on appeal, digging into the procedure of the Fourth Circuit and how the whole thing worked. At the end, I had to tell him that, even if we won on appeal (it’s a nice issue, but you never know, right?) that would be about a year after he was sentenced. Patience isn’t just a virtue for those in the criminal justice system, it’s an essential.

Thing is, the system works the same way regardless of how you’re swept into it. A murder case may be more factually complex than a probation revocation, but the broad strokes are the same – you get charged for doing something wrong, you go to court to argue about it, and some sentence is imposed if you’re guilty. It may take months, if not years, to reach the end point, but which time who can remember what the hell you did to make it here in the first place?

One judge in Hawaii came up with what might be a better way, at least when it comes to probation/parole/supervised release violators. Judge Alm (a former US Attorney) came onto the bench in 2001 and immediately found the current system for such folks problematic and not very effective. So he switched things around:

The program, called Hawaii’s Opportunity Probation with Enforcement, or HOPE, is based on simple precepts that the judge who created it likened to ‘Parenting 101.’ It immediately jails, for no more than three or four days, offenders who miss a probation appointment or fail a drug test. Operating under the theory that judicial punishment should be ‘swift, certain, and proportionate,’ it seeks to turn around behavior that the system ordinarily, though inadvertently, seems to perpetuate. A proffered meth pipe attains a new significance, the thinking goes, when it comes attached to the prospect of an immediate three-day tour behind bars. Moreover, such brief, predictably enforced jail stays are congenial to prisoners used to a more unpredictable and, to their minds, arbitrary system.

So simple, but it appears to be working:

Participants in HOPE were 55 percent less likely than members of a control group to be arrested for a new crime, 72 percent less likely to use drugs, and 53 percent less likely to have their probation revoked. As a result, they served 48 percent fewer days of incarceration.

As a result, HOPE-like programs have appeared in over a dozen states.

Of course, a program like that can really only happen in a supervisory context, where probationers are required to follow lots of rules that don’t apply to regular folks. It’s not clear to me how you could apply the swift/certain punishment idea in new criminal cases without running into serious due process issues.

One interesting observation of those in the HOPE program involves their perception of the process:

’Ordinarily, when you ask an inmate why he’s behind bars, it’s always someone else’s fault,’ Hawken said. ‘ ‘I’m in jail because the judge is an SOB’; ‘I’m in jail because my probation officer had a bad day.’ ‘ But in Honolulu she encountered men and women who, unbidden and unpressured, praised the system that put them away, and told her they were locked up because they had ‘messed up’—something so unusual, she said, that it made her skin tingle. ‘That language of personal responsibility is unimaginable if you’re a criminal justice researcher.’

Now, in my experience the old saw that everybody who is in prison thinks their innocent isn’t the case. People are a lot more honest about their transgressions than that. However, what I have noticed is that there is a certain percentage of defendants who lose sight of any culpability on their part in their plight and view the entire predicament as a kind of game to be won or lost without any regard to their behavior. That’s particularly true when the only real “defense” someone has is a motion to suppress evidence that, otherwise, shows them to be dead-bang guilty. My own personal theory is that it doesn’t help those clients down the road to get caught up in the “game” and lose sight of what they did and how things need to work when they get out of prison.

HOPE offers a different take on criminal justice. It appears to be one of the truly unusual examples of a true win/win situation. The probationers do better overall and spend less time going back to jail. The public benefits by a reduction in crime, reduced cost (due to shorter incarceration), and a more efficient criminal justice system. Let’s hope (so to speak) it continues to spread.

We Asked For This

The reaction to last week’s revelations (courtesy of Glenn Greenwald) at the Guardian) of sweeping data gathering by the National Security Agency, the predominant reaction from the public has been one of outrage.* Even folks who otherwise fall on the “security” side of the security/civil liberties line stopped and asked if things had gotten a bit out of hand. But even the outrage is justifiable (and I think it is), should anybody really have been surprised by this?

Fourth Amendment expert and former NACDL President John Wesley Hall explains how, as distasteful as the NSA’s plans might be, they probably aren’t unconstitutional under current law:

All this data collection is perfectly legal under pre-Patriot Act law and compounded by it. In 1976, the Supreme Court held in Miller v. United States that it did not violate the Fourth Amendment for the government to gather information from bank records of a depositor under investigation. In 1979, the Court held in Smith v. Maryland that it did not violate the Fourth Amendment for the government to put a pen register on a telephone to record only the numbers being dialed because the telephone call wasn’t recorded. That was, after all, all technology allowed at the time. Think of the NSA as one huge pen register.

As for the Patriot Act, Hall notes that it:

became law without any critical thought, and it made it carte blanche for government to gather information about us. Couple this with the information technology available over the last decade and the ability to store Brontobytes of data, and that we see now was inevitable. I’m not the slightest bit surprised. Nobody keeping up is surprised.

Even beyond that, the primary bulwark keeping the government from searching people (and their stuff) willy nilly, the Fourth Amendment, has been slowly hacked away for decades. Well before 9/11 and the War on Terror, we as a society had largely ceded the protections against unreasonable search and seizure in the War on (Some People’s) Drugs. The quantum of evidence needed to search or seize someone has gradually gone down, while the only effective tool to punish breaches – the exclusionary rule – is on its death bed. In the grand tradition of “when they came for the [INSERT GROUP HERE] I did nothing,” society was largely OK with all this, as it only impacted “those people.” Who gives a shit about goddamn drugies, anyway?

Ironically it’s the drug angle that writer/producer David Simon (of The Wire, Treme, etc. fame) uses to explain why we shouldn’t really be all that freaked out about this (via):

Allow for a comparable example, dating to the early 1980s in a place called Baltimore, Maryland.

There, city detectives once began to suspect that major traffickers were using a combination of public pay phones and digital pagers to communicate their business. And they took their suspicions to a judge and obtained court orders — not to monitor any particular suspect, but to instead cull the dialed numbers from the thousands and thousands of calls made to and from certain city pay phones.

Think about it. There is certainly a public expectation of privacy when you pick up a pay phone on the streets of Baltimore, is there not? And certainly, the detectives knew that many, many Baltimoreans were using those pay phones for legitimate telephonic communication. Yet, a city judge had no problem allowing them to place dialed-number recorders on as many pay phones as they felt the need to monitor, knowing that every single number dialed to or from those phones would be captured. So authorized, detectives gleaned the numbers of digital pagers and they began monitoring the incoming digitized numbers on those pagers — even though they had yet to learn to whom those pagers belonged. The judges were okay with that, too, and signed another order allowing the suspect pagers to be “cloned” by detectives, even though in some cases the suspect in possession of the pager was not yet positively identified.

All of that — even in the less fevered, pre-Patriot Act days of yore — was entirely legal.

Simon stresses that, like the NSA program exposed in the Verizon order, they weren’t listening to calls, just getting the “metadata” (if the term was around back then). That information, he points out, is already generated without the NSA’s request and, increasingly, is going to be stored for some kind of future use by the private companies that produce it. To not utilize it for something as serious as trying to thwart terrorist attacks (or develop more traditional particularized individual suspicion) is silly.

I think Simon’s right that the only thing about the NSA program that’s different from his Reagan-era memory of Charm City is the scope of the information gathering, but, unlike him, that still bothers me. It’s possible to, at the same time, not be particularly surprised by something and yet still outraged. Furthermore, Simon appears to take Obama at his word when he says nobody’s listening to our phone calls.** There’s just no reason to believe that. As this piece at Slate points out, there’s a history of surveillance operations straying far afield from the legitimate, limited goals.

While the NSA’s programs are outrageous in and of themselves, what’s more outrageous is that they may be perfectly legal. They’re clearly authorized by statute and have been blessed by Congresspersons in the know. And, of course, they have the approval of a pair of presidential administrations from theoretically opposite parties. Furthermore, I don’t have any confidence that they violate the Fourth Amendment in its current emaciated form.

No, the real outrage is that we’ve let it come to this. For too many years we’ve traded liberty for security, from crime or from terrorism, on a bipartisan basis. If things have really gone too far for too many people, maybe we can start to roll things back. But I won’t hold my breath.

* Or maybe not. Via Orin Kerr at Volokh, a Washington Post poll found that only 41% of respondents think the NSA’s phone program is “unacceptable,” compared to 56% who find it “acceptable.” There appears to be the inevitable partisan gloss as well. We are so fucked.

** To be fair, in the comments he expresses more concern about the PSRIM internet surveillance program, which does appear to reach content, not just technical metadata.

Friday Review: Zero Dark Thirty

Let’s begin with the thought that no representation of a historical event can really accurately capture that event. Even first-hand news accounts based on interviews from people who just witnessed the event often get things wrong, either the minor details or broader strokes. Which is only to say that any movie, even a documentary, isn’t able to present “the truth,” but rather only one variant of it, a variant that’s molded for reasons of art and, sometimes, politics or propaganda.

When Zero Dark Thirty came out last year I wrote about the controversy swirling around of whether it justified torture as the means by which the United States learned the location of Osama bin Laden, ultimately leading to him being killed by Navy SEALs. On the one hand, it was an apologia for torture that shows an efficacy that isn’t borne out by the historical record. On the other, it’s a movie that, perhaps, is taking aim at broader themes. As I concluded:

Which is just to say, you really need to see the movie before you decide its morally horrific. Is there some reason to think that critics, who have actually seen it, just check their moral compasses at the door? Or is the film perhaps more nuanced and subtle than Bruni, et. al., are giving it credit for? Who knows? I suppose we common folk will need to wait until January to find out.

In the end, it’s best to judge for yourself.

So now that I’ve finally seen Zero Dark Thirty, I suppose it’s time to do some judging. Putting to one side Kathryn Biggelow’s ill-advised remark that the film is “journalistic,” I think most of the furor about the film was ill founded.

First and foremost, does the movie come out and say torture was effective in getting crucial info on bin Laden and thus allowing us to track him down? Sort of yes, sort of no. The real problem is that, for dramatic/streamlining purposes, the dozens of people questioned and, in some cases, tortured for information during the search are pretty much reduced to one guy, Ammar. We see him brutalized in multiple ways, during which he either provides no information or incorrect information (in one scene he feebly recites every day of the week as potential answers to try and avoid being crammed into a tight wooden box). Later, after an attack in Saudi Arabia, he’s treated to lunch and a little kindness (in addition to false information about the attack) and only then does he provide some relevant information.

Is Ammar’s story one of torture working in the end? After all, during their little lunch the chief interrogator tells Ammar that he can hurt him again, if he doesn’t cooperate. The threat of more brutality hangs over the conversation like a circling bird of prey. Or, alternately, is Ammar’s story one that shows how torture doesn’t work, since he only gives up important information after the torture stops? Honestly, it’s both.

If Ammar was a real person, a single identifiable individual, I’d say it shows that torture had been effective. The brutality he experienced is a bell that cannot be unrung. After all, the whole reason the bad cop/good cop dance works isn’t because the suspect wants to please the good cop, it’s because he wants to avoid further pissing off the bad cop. Once tortured, any further questioning while the threat (explicit or otherwise) remains is tainted, at least within the short time frame presented in the film.

But Ammar isn’t a real person. He’s a character in a fictionalized account of a real event, one that serves as a stand in for numerous detainees, if not damned near all of them. Dramatically, the distinction between what produces no information (torture) and what produces valuable information (kindness, or at least humane treatment) is stark and dramatically effective.

So, is it a movie that argues for the triumph of torture or not? Did Dick Cheney really love it? Ultimately, I think it works as a sort of Rorschach test for the viewer. There’s enough there for viewers looking for a pro-torture message in the film to find it, such as later repeated references to new limits on torture making the hunt for bin Laden more difficult. But there’s also enough there to read it as a statement on the ultimate futility of torture as a useful information gathering tool. There is never, to be fair, a full-throated moral objection to torture, however. It’s a purely utilitarian argument.

Personally, I see the film as a meta commentary on the United States reaction to 9/11 and our behavior during the War on Terror. In addition to being a stand-in for the person (or persons) who led the hunt for bin Laden, the main character Maya strikes me as a stand-in for the American people as well. She is spurred to action by 9/11, is uncomfortable with some of what that means, but ultimately she’s not willing to completely repudiate it. Her laser-like focus on bin Laden is contrasted with the world moving on around her, raising questions about the need to expend resources on the hunt. And, finally, when all is said and done, what has Maya really accomplished? She heads home, alone, in the back of an empty C-130 transport plane, to an uncertain future. The air of melancholy at the end of the film seems to me to be a giant question mark – like someone’s asking “was all of this worth it?”

Having said all that, is the movie any good? It’s not bad, but there isn’t much greatness in it. Most of the film is a slow, slogging procedural that’s only of interest because of the inciting crime and the target of the manhunt. There’s no real character development, things just move from point A to point B, efficiently and competently, but not very compellingly. The exception to the rule is the depiction of the raid on bin Laden’s compound. Rather than pump it up artificially to be the kind of loud, bright, fast action sequence we’re used to on the big screen, Bigelow lets it play out in real time. It’s a slow, methodical execution of a meticulously assembled plan. It’s all the more chilling for the cold efficiency of the SEALs in doing their thing.

Good art, at some level, is about confronting the audience with something they don’t want to see or think about. On that level, Zero Dark Thirty succeeds in spades. Whatever your ultimate takeaway from the film, it’ll make you think about what’s in it, think about it, and make you reconsider your own thoughts. That’s not a bad result, all things considered.

The Details
------------------------
Zero Dark Thirty
Released 2012
Written by Mark Boal
Directed by Kathryn Bigelow
Starring Jessica Chastain, Jason Clarke, Kyle Chandler, et. al.

Quick Hits, of a Mostly Familiar Nature

Here are a few brief stories that caught my attention while I was away getting’ matrimonyed. A couple of them tap into things I’ve written about before, so they’re a bit familiar. I’m working my way back into things, obviously.

Public Art for Fun & Profit

Back in April I wrote about the latest example of now-you-see-it, now-you-don’t public art that was creating a stir. In that case, it was a Banksy mural in the London neighborhood of Harringey that appeared, as much of his stuff does, overnight. Several months later it disappeared just as suddenly. At the time, there were issues over who removed the mural and what it’s fate might be.

Flash forward to last Sunday, when “Slave Labor (Bunting Boy)” fetched a cool $1.1 million at a private auction in London. That came after an initial auction in Miami was scuttled at the behest of the Harringey town counsel. Not surprisingly, the ones selling the mural were the owners of Wood Green Investments, who owned the building upon which it was installed. They were entirely within their rights to do so.

Art Is Not the Artist

I’ve argued before that it’s best to separate an artist from his art. I don’t really begrudge people who can’t or won’t do that, but I think it’s a bit short sighted. You cut yourself off from a lot of interesting art if it all has to pass through some kind of ethical litmus test. Besides, on a practical level, I’d rather you not read what I write because it sucks instead of the fact that I’m a Democrat/atheist/prog fan/DC United supporter.

Here’s a recent example of where getting up on your high horse might not be that good of an idea. A grad student at Northwestern, a member of the University Chorale, objected to being required to perform a particular piece, Howard Hansen’s Song of Democracy. Not because it was too difficult or aesthetically poor, but because the lyrics for that piece were taken from a Walt Whitman poem and Whitman, as were many of his contemporaries, was a big-time racist. The professor threatened to fail the student, but it’s unclear how the dispute was resolved.

It’s one thing to object to performing something that in and of itself is racists, sexists, whatever. But backing up further and requiring ethical purity from the original author is composer is really asking for trouble. As my friend who was recently-doctored in conducting pointed out, such a litmus test would eliminate most of the cannon of established Western music.

I’d go on to argue it would do the same with art, literature, and nearly any other endeavor. And while nobody can take away your right to take umbrage at such things, aren’t there more important things to worry about than whether the lyricist of a song you have to sing in class was a douchebag a century and a half ago?

Oh My, Sexy Werewolves! In Prison!

Finally, here’s a fun story that actually raises important issues of free speech and criminal justice. An inmate in California has won the right to possess (and read, presumably) a book called The Silver Crown. Why did he have to go to court in the first place?

The 262-page novel tells the story of Iris, a werewolf hunter who ends up falling in love with one of her prey. The book contains ‘a great number of graphic sexual encounters, one per chapter through most of the book, including detailed descriptions of intercourse, sodomy, oral-genital contact, oral-anal contact, voyeurism, exhibitionism and ménage à trois. Semen is mentioned,’ Richman wrote.

The judge also notes that the book doesn’t advocate or advance violence and the sex isn’t really all that weird and doesn’t include, for example, bestiality (unless, the judge explains, you include the werewolves!).

Prisons generally aren’t keen on letting inmates have possession of sexually-related materials. The wife used to tell me about dealing with those kinds of regulations during her days at Borders. So it’s a bit of a pleasant surprise to see a court not simply bow down to the prison’s regulations.

But what’s really amusing is that you can tell the judge wasn’t all that happy about having to deal with The Silver Crown in the first place:

’Personally, we would be hard-pressed to say The Silver Crown has ‘significant’ literary value and is a work ‘of great import,’ Richman wrote. But, he concluded, ‘we cannot simply dismiss the work as nonserious literature because it deals with werewolves and other paranormal creatures and activities. For better or worse, some segment of the population is fascinated by werewolves and other mythical beings. ... Werewolves, in fact, have played a role in popular fiction for centuries.’

I’m not sure anyone who writes about himself in the third person gets to knock anybody else’s literary choices.

Hunter Becomes Hunted (Redux)

Back in April I blogged about Ken Anderson, a former prosecutor and current judge in Texas who made headlines for actually being criminally charged for misconduct that resulted in an innocent man being sent to prison for almost 25 years. In that post I mentioned that, regardless of the eventual outcome of the criminal proceedings, Anderson would ultimately be judged by voters when he faces reelection.

I no longer think that will be quite enough.

Scott over at Simple Justice has a copy of the judge’s order issuing the arrest warrant for Anderson, in which he lays out the findings of fact supporting the warrant. Buried deep in the order is this gem:

42. Additionally, as Mr. Anderson explained during the Court of Inquiry, although Brady requires prosecutors to release exculpatory evidence to the defense, as an attorney and former prosecutor, he does not believe in the release of such evidence if it may result in freeing an individual that he believes is guilty. (RR 6:116:18-6:117:4 and RR 6:94:4-24).

Read that again, slowly, and make sure you grasp what Anderson said, under oath, to a court examining his conduct – that if he thinks your guilty, the law is just an impediment to his ultimate triumph of putting you in a cage. It’s hard to think of a more appalling example of a prosecutor who has decided to completely ignore his legal, constitutional, and ethical obligations in order to do what’s “right,” of which he is the only judge (naturally).

Prosecutors have a constitutional duty to turn over evidence to defendants that tends to show they’re innocent of the crime with which they’re charged. This so-called Brady obligation is a fundamental protection of an adversary system where one side has the entire investigative apparatus of the state at its disposal. Yet the very nature of it – evidence is required to be turned over only when it might exonerate the defendant – provides prosecutors with enough wiggle room to get into trouble.

I’ve heard that prosecutors are told that if they have a piece of evidence they don’t want the defense to have, then it’s the kind of evidence they need to turn over. Sound advice, but not followed very often. The law should make the decision much easier – turn over everything. Don’t leave the decision about what to disclose to a party with a vested interest in the result. Human nature being what it is, the temptation to filter things through your own biases is going to lead to bad results.

As for Anderson himself, I’m not sure if the law is capable of sending him to prison for what he’s done, for reasons noted in the initial post. But the Texas bar and judicial disciplinary apparatus presumably has more room to deal with his malfeasance. He is a disgrace to the profession and shouldn’t ever have a place in courtroom, except as a party.

Bloggus Interuptus: Matrimonial Edition

Friends, you may remember that last year the lovely lady K agreed to marry me. The time for us to make good on that promise is upon us! And we just bought a house! So, I’ll be stepping away from FtS for the rest of the month.

See y’all in June!

Friday Review: ROSFest 2013

Last weekend, for the third year running, I trooped up to the rolling countryside of central Pennsylvania for the Rites of Spring Festival, aka ROSFest. Held at the lovely Majestic Theater in Gettysburg, the festival showcases the more melodic side of progressive rock. This was kind of an odd year for me, as there wasn’t anybody on the bill that I was completely ecstatic about having a chance to see – no IQ or Phideaux from prior years. In fact, going in I didn’t know a lot about many of the bands, but I was sort of intrigued by them. Would I find an unknown gem like Sanguine Hum or Tinyfish. Let’s find out!

First, a graphical note – your humble narrator screwed the pooch this year and left his camera at home, so none of the usual pictures of the Majestic marquee setting out each day’s schedule. I already feel your scorn and am remorseful about it.

Friday kicked off with Bolus, a four-piece (on stage, at any rate) from Canada. Aside from a couple of YouTube clips I didn’t know anything about them going in, but I liked their brand of energetic, tuneful, neo-prog. As with so many newer bands these days they occasionally lapsed into a metal riffage territory, but not so much as to ruin it. On their 2013 release Triangulate the band’s only a three-piece, but the live show had a fourth guy featuring mainly on keyboards (a Korg M50, to be precise – represent!), with some occasional guitar. The keys were so prevalent that I was surprised at their near total absence on the album. I also liked the bass player’s MacGeyver’d bass pedal setup (MIDI pedals into a MicroKorg?) – it literally made my hair move when he put a foot down!

Headliners for Friday night were the famous Flower Kings from Sweden. I’ve got a kind of an odd history with the Kings. I really love the Roine Stolt solo album that gave birth to them, but I don’t find their output all that interesting most of the time. I’ve called it “chicken soup for the prog lover’s soul” before, because it sort of hits all the right notes (so to speak) of classic symphonic prog, but doesn’t really thrill me. Having said that, they’re a stalwart of the “third wave” of prog that emerged in the 1990s, are a damned fine group of musicians, and I was glad to be able to see them live.

The first full day of music began with Jolly, a four-piece from New York City. There is a good story to this band. Their studio (and the drummer’s apartment) was destroyed by Hurricane Sandy, which would have been bad enough anyway, but (a) the band had just finished a new album and (b) were getting ready to hit the road supporting Riverside. Luckily said drummer saved his computer (with the album on it – this is the 21st century) and their fans rose up to support them so that the tour went on (is going on, actually) without a hitch. Very cool. Musically, Jolly pumps out a tuneful near-prog in somewhat the same vein as Bolus, but with a much heavier, more metallic edge. Not really my thing, but they do it well – the road work they’ve done shows. Another nice touch – if you buy their current album The Audio Guide To Happiness - Part 2, you get a free download of the last one, The Audio Guide To Happiness - Part 1, so you can get the whole concept in one sitting.

Prog metal is not my favorite of the prog neighborhoods. I’ve got nothing against heaviness itself, but the “balls and chunk” metal riffing has never been my thing. So I was apprehensive about Sweden’s Pain of Salvation, given their stellar prog metal pedigree. I was more than pleasantly surprised by their set, which was one of the most diverse of the weekend. Yes, there was the prog metal riffing, but it was interwove with lots of effective dynamic shifts. The band carelessly skipped through a whole host of experiments with different styles, which I always admire. Some didn’t work (the disco tune and the quasi-rap one left me cold), but how can you not love a band that trots out a lounge/jazz/reggae version of Dio’s “Holy Diver”?

Believe, from Poland, turned out to be a good palate cleanser for Saturday evening. Amidst a day of fairly heavy music, their brand of solid, melodic neo-prog played well. They reminded me a lot of IQ and Camel, not to mention fellow countrymen Quidam. Guitarist Mirek Gil took lots of opportunities to stretch out and solo, getting fierier and more intense as the set progressed. The band had a violinist, but she was buried in most tunes, but it was a nice touch when she was more prevalent. Good, nice tunes, but nothing spectacular.

Fairly early in their headlining set Saturday night, Riverside bassist/vocalist Mariousz Duda joked how at first they were the “Polish Porcupine Tree,” then they became the “Polish Dream Theater.” As for now, maybe they’d become the “Polish . . .” – he let the answer hang until the keyboard player ripped off the first couple of riffs from Deep Purple’s “Perfect Strangers.” The Porcupine Tree comparisons were once valid (the Dream Theater ones not so much), but Riverside has forged their own path over the past decade. They’re heavy, yes, but not really in a metal way, but more in a thick, wall of sound kind of way. If anything, these days they sometimes seem like Spock’s Beard’s heavier Polish cousins. Regardless, they were excellent, easily surpassing my expectations. I had three of their five albums going into ROSFest and figured I wouldn’t need any more. I completed my collection on Sunday morning.

On a side note – this was the tenth edition of ROSFest and Riverside was the 100th band to take the stage at the festival. Congrats to George and everybody who puts on the fest for reaching that kind of milestone.

Sunday morning at ROSFest is dubbed the “church of prog,” since, well, it’s Sunday and all. Typically, the band chosen to kick off Sunday gives an energetic performance to help most people shake off the cobwebs of the partying done the night before. Dream the Electric Sleep – a great name and, since they hail from nearby Lexington, Kentucky, almost a local band for me – took the opposite approach. The slid into their set, opening with a pair of longish, spacey sounding tracks. More of a slow warming than a brilliant sunrise. To their credit, the first track had a similarly spacey quote from “Amazing Grace” to start off. I like DTES’s mix of space rock, jammy stuff, and even post-rock (if you squint a bit), but was disappointed by their presentation. Simply put – they need a fourth guy in the band. The power trio setup was augmented by a Macbook that handled not only the occasional intro or atmospheric sample, but also acoustic guitar, synths, and backing vocals. Seriously, I hope the Macbook had a union card, at least.

The key word to describing the set by Moetar (from prog hotspot Oakland, California) is “short.” As in the fact that many of their songs were conspicuously short. I’m not talking about a lack of stereotypical prog epics, I’m talking about a bunch of 2-3 minute tracks that barely get going before they’re over. Still and all, they pack an awful lot into those short bursts, probably too much. The music is really busy, with lots of lightning guitar and piano riffs, augmented by matching vocal lines (think Zappa or Keneally unison vocals, but performed by a powerful female vocalist). Fantastic musicians, but the end product left me a bit cold. The newer tracks seemed a little bit more well developed, so maybe in a few years they’ll really be hitting it out of the park.

Japan’s Asturias is the brain child of multi-instrumentalist Yoh Ohyama – it exists in the form of an acoustic chamber ensemble, an electric rock/fusion band, and the label for Ohyama’s more individual efforts (he’s the “Mike Oldfield of Japan”). It was the electric version that brought the house down at ROSFest. They ripped through a set of smoking instrumental prog, laced with streaks of fusion. As with Believe they had a female violinist (the violinist from Believe is even of Japanese extraction, I think), but she was much more front and center in the sound, providing a nice counterpoint to the guitar and keyboard leads. On top of all that, each band member addressed the audience as some sort of English as a Second Language assignment (guitar player’s response to a random shouted comment – “I don’t speak English”), each of which underlined their enthusiasm for playing half a world away from their home. Simply put, they were great.

Sunday’s headliner was Shadow Gallery, truly a local band, a prog-metal outfit who only played out live for the first time a few years ago. I understand how happy fans were to get to see them, but they’re not my cup of tea (it’s not just prog-metal, it’s cheesy prog-metal), they were running late, and, by that time, I was beat, so I just packed it in. No idea how they’re performance came off.

Going into ROSFest this year I didn’t really expect any “wow!” moments. It’s to the fest’s credit that I still got a couple and, even outside of those, the rest of the lineup was uniformly solid. Barring something untoward happening, I’ll be back in 2014 for the fourth time running. Hopefully, next year, my seat won’t disappear into the ether after I bought it!

Friday Review: Under the Dome

The situation in which regular people find themselves basically stripped of civilization and the comforts of our modern world is a classic fictional trope, from the English school kids of Lord of the Flies to the few survivors of some planetary disaster in The Road or A Canticle for Liebowitz. Generally, those stories take people who may or may not have any prior relationship to one another and throw them into a world of anarchy and chaos.

Stephen King’s Under the Dome turns that trope on its side in two crucial ways. First, the characters in the book are all from the small Maine town of Chester’s Mill, population 2000 (in the off season, as it is in the book) and thus not only know each other but have a complicated web of alliances, bitterness, and business interests (legit and otherwise) connecting them. Second, although the titular dome throws life in Chester’s Mill into utter higgledy-piggledy, there’s no anarchy or absence of leadership. In fact, what’s so terrifying about what happens in Chester’s Mill is that the political machine that’s run the town for years functions perfectly once crisis hits, which leads to apocalyptic disaster.

Overseeing this mess is “Big” Jim Rennie – used car salesman, obnoxiously loud Christian, and gargantuan meth dealer. If Under the Dome is supposed to be King’s meditation on the United States after 9/11, Rennie is the stand in for Dick Cheney as the power behind the throne. Although Rennie is the second of three selectman (one is actually a selectwoman) who govern the town, he wields all the actual power. The analogy doesn’t quite fit – nobody ever voted for Cheney directly, while Rennie had won numerous elections to maintain his seat. If anything, Rennie seems to be King’s warning that, while we focus most of our attention on national politics, the office holders with the most power to really fuck things up are locals and we ignore the low-level political offices at our own peril.

Having said that, to the extent that King is trying to do something more than tell a compelling, terrifying story, he misses some opportunities to explore some interesting grey areas. For example, once the dome comes down, new cops are quickly recruited to brace against chaos and lawlessness. It would have been interesting to see one or two good people in these positions, honestly dealing with the competing concerns of security and liberty. Alas, since Rennie is the one doing the choosing, the new cops are all his henchmen (including his murderous son) and proceed to do precisely what you’d expect henchmen to do given that kind of power.

Another missed opportunity is the lack of any exploration of the Chester’s Mill body politic. The novel’s cast of characters is impressively large and King does a good job of working them all together, even if the individual characterizations are pretty shallow. However, they divide neatly into the obviously evil – Rennie and his flunkies – and obviously good – the couple dozen citizens who oppose him. King isn’t really interested in the rest of the unwashed masses, which is a shame because they’re largely the ones who voted for Rennie again and again. Why had they? Why were they so willing to believe any bullshit story he told them? After all, Rennie’s claim to power is that “the town” is behind him, but “the town” remains nebulous and unexplored.

As for the dome itself, it’s a wonderful literary invention. Although the word “dome” and some of the initial interaction with it would bring to mind the giant glass bowl dumped on Springfield in The Simpsons Movie (with which Under the Dome shares a passing similarity), it’s not a solid barrier. Instead, it’s a somewhat permeable force field of some kind, through which plot devices like speech, heat, and (in a very limited way) air can move but people, vehicles, and explosives can’t. It effectively seals the town off, but allows for some contact with the outside world.

To his credit, King doesn’t just plop the dome down and let it go all McGuffin on him. He provides an explanation for it, one that drives the final hunk of the book. Unfortunately, that explanation is neither all that interesting logically or dramatically. It leads the end of the book to be a real let down.

We tend to think the best of ourselves, that when faced with crisis we’ll rise to the occasion and do the right thing. Truth is, some folks will do that, while others will use the anarchy to enrich themselves (in different ways) and still others will simply be passive observers, numb from the shock of their world going to shit. King grasps that. So long as Under the Dome focuses on life under the dome, it’s a pretty compelling read. Bigger explanations, not so much.

The Details
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Under the Dome
By Stephen King
Published 2009

A Formula for False Confessions

The new Sundance Channel series Rectify revolves around man released from death row after 18 years, following a conviction for a crime he (most likely) didn’t commit. The scientific evidence, at least, says that. But one barrier to his return to the community is the talk, not all behind his back, that he must be guilty because he confessed to the crime. Whether that turns out to be true in that particular case is anybody’s guess (although I think we’ve already been tipped to the fact that he’s innocent), but we know now that such a “common sense” conclusion is often wrong.

Which is not to say it’s common. According to this report from the National Registry of Exonerations, 15% of false convictions include confessions. For homicides, the number rises to 25%. While that’s nowhere near the percentage of cases that involve false eyewitness testimony (43% of all cases), official misconduct (42%), or good ol’ fashioned perjury (51%), it’s still a significant number. At the very least, “but he confessed” should never be enough, standing alone, to convict someone of a crime, much less execute them.

But why does it happen? Not every person who falsely confesses is tortured or what have you. David Harris, a law professor at Pitt and writer on “why law enforcement resists science,” provides one potential answer, in an interview over at Psychology Today. It focuses on the “Reid technique,” the leading method for police conducting interrogations. It was developed in the 1950s and it science deficient, as Harris explains. But more than that is the goal of the technique:

The Reid technique for interrogation is not a process designed for the discovery of facts and evidence. Rather, it is a multiphase process, to be used when the interrogator has already concluded that the subject is guilty, and therefore simply needs the confession out of the person to confirm the guilt and prove it.

The interrogator determines guilt through a phase of interaction before interrogation, in which the officer ascertains guilt or innocence through asking basic questions and observing behavior.

However, as Harris explains, the bases for that determination of guilt are also built on sand. The result is a system that, while not designed to generate false confessions, isn’t designed to generate accurate confessions, either. The confession itself, regardless of its veracity, is the desired end product.

There’s something to be said for training police officers to be able to get suspects to talk who otherwise wouldn’t, to get them to hang themselves using their own words. If nothing else, it makes for gripping cop shows on TV (see Homicide: Life on the Street and it’s frequent scenes in “the box”). But the broad focus should be on ensuring the truth and accuracy of the resulting confession. False confessions don’t do anybody any good and can, in too many cases, put innocent people in a world of hurt.

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!