On Judicial Silence

Over the weekend, Jeffrey Toobin at The New Yorker wrote a column in which he repeated a fairly regular criticism of Clarence Thomas - that the justice's silence during oral arguments is the mark of some kind of intellectual or character flaw.  To Toobin, it indicates the Thomas isn't really invested in proceedings and isn't really doing the job right.  To me, this criticism doesn't make much sense.

For one thing, evidence seems to suggest otherwise, at least Ilya Somin's observations during an argument earlier this week:

For what it is worth, I saw nothing to support Toobin’s claim that Thomas is disengaged and “not paying attention” during oral arguments. During the course of the argument (which was on a relatively prosaic statutory interpretation case), I saw Thomas confer with liberal justice Stephen Breyer some three or four times, and with Justice Scalia once. I believe I also saw him look up some points in what seemed to be the joint appendix filed by the parties (or perhaps one of their briefs). Obviously, I could not overhear what Breyer and Thomas were saying. Perhaps they were discussing the weather or making plans for lunch. But the timing of their interactions make it likely that they were talking about issues raised in questions asked or about to be asked by Breyer, or one of the other justices.

As Somin points out, Thomas regularly talks with Breyer during arguments, so this doesn't seem to be out of the ordinary.

For another, Thomas has long had a consistent and reasoned, if flawed, explanation for his silence during oral arguments.  That is, he prefers to listen to what the advocates have to say, rather than interrupt them constantly.  As Somin points out, this is how oral arguments were in the good ole' days, much more a rhetorical event than a back and forth between the bench and the attorneys.

Where I disagree with some folks who have criticized Toobin, like Ed over at Dispatches from the Culture Wars, is in their claim that Thomas's approach is probably better:

Yes, let’s imagine if all nine justices behaved as Thomas does on the bench. The attorneys, who only get 30 minutes, might actually get to present their case without interruption. As it is, they often don’t get the first sentence out before someone, usually Scalia, is badgering them like a high school debater during cross-examination. Thomas is right about this. By the time oral argument is heard, the justices have already read the entire trial record, the appeals court record, every brief filed in the case (sometimes dozens of them) by both parties and amici. They already know how they’re going to vote and nothing said at oral argument is likely to change that.

As a somewhat experienced appellate advocate (not before Thomas and his brethren, alas), I do not want to return to the days of Daniel Webster and lawyer speechifying for oral arguments, largely because of the factors Ed points out.  By the time a case gets to oral argument, all that's really left is for the judges to ask questions of counsel.  Everybody's read the briefs, everbody's reviewed the record.  Briefs get filed in a particular order for a reason.  First whoever is taking the appeal files a brief, then the other party responds, then the first party gets to file a reply.  In other words, everything the parties can bring up should have been asked and answered before anybody steps into court.

Personally, I don't want an oral argument that's just 20 minutes of me waffling to the court.  I want judges to ask questions.  I want to know what's troubling them about my arguments and what they think is perhaps a winning point for the other side.  Questions at oral argument focus in on the meat of the case in a way that written submissions just can't.  If nothing else, judges can pin down lawyers who are trying to be slippery with the law, the facts, or both.

All of which is to say while I don't find Thomas's reasons for remaining silent compelling, I don't think they're a sign that he's unqualified to sit on the bench.

Besides, sometimes when you open your mouth all you do is put yourself in a world of hurt.  Ask some of my clients.

Judas Unrepentant Unmasked?

It took a while for Big Big Train's The Underfall Yard, released in 2009, to grow on me.  It's successor, English Electric Volume One still hasn't*, for whatever reason, with the exception of one track.  It's a song about something that always strikes me as fascinating - art forgery.

"Judas Unrepentant" is about a guy who forges art, but does it in a very clever way.  Rather that churn out reproductions of known classics, he has a different scheme:

Establishing provenance
Acquiring old frames with Christie's numbers
Then Pains a picture in the same style
Specializing in minor works by major artists

It's quite brilliant, actually.  Reminds me of a story I heard Rick Nielsen of Cheap Trick tell about their early days - where every other bar band played the radio hits by Zeppelin or The Who, they'd learn the B-sides nobody paid much attention to, so it sounded like original material (although they never passed it off that way).

I always wondered if the song was completely fictional or inspried by a real forger.  Last night, I think got the answer, thanks to a 60 Minutes piece on Wolfgang Beltracchi.  As the setup explains:

Wolfgang Beltracchi is a name you may never have heard before.  Very few people have. But his paintings have brought him millions and millions of dollars in a career that spanned nearly 40 years. They have made their way into museums, galleries, and private collections all over the world.  What makes him a story for us is that all his paintings are fakes. And what makes him an unusual forger is that he didn’t copy the paintings of great artists, but created new works which he imagined the artist might have painted or which might have gotten lost. Connoisseurs and dealers acknowledge that Beltracchi is the most successful art forger of our time -- perhaps of all time. Brilliant not only as a painter, but as a conman of epic proportions.

Now, the song is not Beltracchi's story.  For one thing, the song indicates that its hero wanted to get caught:

His time bombs are in place
And anachronisms
Clues pointing to the truth
If ever they are X-rayed

It's clear from the story that Beltracchi didn't want to get caught, which he did.  He was sentenced to six years in prison and his wife/codefendant to four.  As for how he got caught?

But then in 2010, he got busted by this tube of white paint. 

The Dutch manufacturer didn’t include on the tube that it contained traces of a pigment called titanium white. That form of titanium white wasn’t available when [Max] Ernst would have painted these works and Beltracchi’s high ride was over.

Which is interesting, because in the song, our hero:

Wrote legends in lead white
to trick the experts
And hoodwink the trained eye

Coincidence?  Could be.  But Beltrachhi's story must have been in the news in Europe sometimes before "Judas Unrepentant" was written, so it makes sense that one served as inspiration for the other.

One thing I will say for the song is that is provides something the 60 Minutes piece doesn't, which is answering why go through all trouble?  Beltracchi is a staggeringly talented guy.  Presumably he could have been a successful artist under his own name, so why all the fraud?  "Judas Unrepentant" has an answer:

He's painting revenge
Embittered by lack of success

* * * 

Expressing contempt
For greedy dealers
Getting rich
At the artist's expense

Revenge as the long con.  I like it, although it all comes to a tragic end, sadly.

I think what makes art forgets so interesting is that they tend to poke a finger in the eye of the art world, challenging its aesthetic bona fides and pointing out how, so often, people only care about the name attached to a work, not the work itself.  To that end, I applaud this collector:

This $7 million dollar fake Max Ernst is being shipped back to New York.  Its owner decided to keep it even after it had been exposed as a fake. He said it’s one of the best Max Ernsts he’s ever seen.

Because, in the end, the important thing shouldn't be whether the signature on the bottom makes your friends jealous, but whether the art moves you and makes you think about it.

* The similarly named English Electric by OMD, however, grabbed me right away, for what it's worth.

What's the Point of a Review?

My Friday Reviews are the descendant of one of the features of my original, hand crank operated, web page I had while I was in college and law school.  There I'd do reviews of just about every album I got, as part of a regular process of listening and figuring out what I thought about it.  I stopped doing those, largely because my reviews were winding up in one of two formats - gushing praise or harsh scorn.  If I didn't really "feel" one of those, I didn't even write up.  I'd like to think I do better now, but it's helpful to be able to pick and choose.

I bring all this up because of an interesting two-person article in the upcoming issue of the New York Time Sunday Book Review which asks the question, "do we really need negative book reviews?"

Now, as a struggling writer, I kind of like the idea of doing away with negative reviews. Who wants to see their work torn to shreds, after all?  But I'm not certain that would really be the best thing.

Francine Prose makes the case for not writing negative reviews.  It's pretty simple:

Even so, I stopped [writing negative reviews]. I began returning books I didn’t like to editors. I thought, Life is short, I’d rather spend my time urging people to read things I love. And writing a bad book didn’t seem like a crime deserving the sort of punitive public humiliation (witch-dunking, pillorying) that our Puritan forefathers so spiritedly administered.

From my reading of professional critics, that seems to be the best part of the job - when they find something in need of a champion, a book or film that won't reach a wider audience without some cheerleading.  It must be more rewarding that writing what shit the latest Transformers movie is or whatever.  So I see the point.

On the other hand, however, that seems a bit too touchy-feely, doesn't it?  To be fair, Prose (good name for a writer!) doesn't argue for lying about the quality of books, just not writing reviews of bad things at all.  Which, come to think about it, might be even worse - being ripped apart is one thing, being ignored quite another.

Zoe Heller makes the case for negative reviews and it is, as well, pretty simple:

most writers do not write merely, or even principally, to escape from or console themselves. They write for other people. They write to have an effect, to elicit a reaction. That is why they scrap and struggle, often for years, to have their work published. Being sentient creatures, they are often distressed by what critics have to say about their work. Yet they accept with varying degrees of resignation that they are not kindergartners bringing home their first potato prints for the admiration of their parents, but grown-ups who have chosen to present their work in the public arena. I know of no self-respecting authors who would ask to be given points for 'effort' or for the fact that they are going to die one day.

Part of being an artist, at least one who shares his work with other people, is the need to deal with criticism.  My father is a first rate grammar-Nazi.  I have him read my fiction, even though it's not the kind of thing he normally reads, because he will be precise and vicious with a red pen.  When my mother asked if I really wanted him to do that, I said, "because editors and agents will be kind and not point out those things?"  Being criticized is part and parcel of being a creative person.

Further, as Heller points out, reviews come with bylines and, hopefully, supporting argument as to whether a book is good or bad.  Real criticism goes miles beyond "it sucks" or even "it's great!"  Critics who are savage just for the fun of it won't garner a lot of respect or readers.

After all, as Prose admits, trying not to write a negative review is like trying not to eat too much at Thanksgiving.  You're bound to find something that rubs you the wrong way, doesn' work, and compels you to write about it.  Even if, as she also points out, in the end, nobody will really pay attention to what you have to say.

These days, when I write a review, I try to have something interesting to say about whatever the subject is. That's why there isn't a review posted every Friday.  Something's got to strike my fancy somehow, either by being brilliant or flawed, but I won't think twice about saying I think something sucks.  I just hope I have good enough reasons to make somebody else think, "yeah, all right."  Agreement, of course, is not required.

So I think the answer is yes, we do need negative book reviews.  Whether we need "bad" reviews is, of course, a completely different question.

Lawyering Au Natural

For most people it's hard to separate what lawyers do from where they do it - courtrooms.  Whether it's a trial court, with a jury box filled with a dozen regular folks who are going to decide someone's fate, or an appellate court where a panel of judges glower down from the bench at the lawyers making the argument, we've got a pretty good idea of where this kind of takes place.

It was not always such.  Over at the Legal History Blog, professor Bernard Hibbitts is blogging a bit about his teaching of the history of lawyers and lawyering to his students.  I found this entry particularly interesting, because it's about the ancient roots of the law in Greece and Rome.  As originally conceived, lawyering (such as it was at the time) was done in the outdoors, not just because they hadn't figure out a better place for it yet:

By definition, outdoor advocates performed in public. They argued their cases under the unobstructed gaze of their community's gods, and they shared the very physical and acoustic spaces where other members of the community interacted to buy and sell, borrow and beg, meet and greet. Even within the confines of the court or the corona (the ring of onlookers surrounding the Roman judge), litigants and their legal representatives inevitably heard the calls and cries of commerce from the market area beyond. People in the marketplace could in turn hear (and in the Roman Forum see) litigants and/or lawyers pleading, creating mutual awareness and to some extent social accountability. There was no silence in these courts.

What's the one thing you think of when you think of modern court proceedings?  It's the quiet.  Nobody says or does anything unless it's part of the proceeding.  You don't jabber to your neighbor in the gallery, you don't talk on your cell phone.  Unless you're the judge, a witness, or a lawyer, you pretty much better keep your mouth shut, under pain of a contempt charge.  Quite a contrast.

So when did things move inside?  Blame the Romans.  More specifically, blame Julius Ceasar, who built a building just for the purpose of housing courts (modestly named after himself, of course):

Bringing lawyering inside, however, was arguably less an act of architecture as a product of politics. . . . Although the gods may have continued to look down on court proceedings from monuments in the Forum and perhaps even statues on the Basilica Julia itself, their gaze upon Roman justice was now by definition occluded. And who had occluded the sight of the gods? Roman leaders and emperors who now literally sought to confine, possess and discipline the ritual of public justice and the voices and processes of Roman advocacy (at the same time, by the way, as they increasingly claimed to be gods themselves, beginning with Divus Julius, the very builder of the Basilica). In the comparatively cramped space of the Basilica Julia there was literally less room for eloquence, less expanse in which to gather a crowd, less opportunity for advocates to potentially lever their public presence, their bodies and their commanding voices against power. After the death of Cicero, the Basilica Julia helped Rome's dictators ensure that no advocate like him would rise again.

Successive emperors built their own courts and thus, what Hibbitts calls "lawyering's most fundamental change of venue" was on.

Personally, I don't mind the move indoors - it was in the 20s when I was in Richmond last month, after all!  But I see Hibbitts's point.  Putting aside nonsense about gods, when you move justice inside you do hide it from public view, somewhat.  Sure, courts are generally open to anyone who wants to come and watch, but my experience is that, beyond students brought in specifically to observe, the public doesn't take advantage.

Part of that, no doubt, is because people are just too busy and, honestly, the day-to-day happenings in court are pretty boring.  But part of it might be also that going to court is like going to church - it's a sacred place with strict rules of behavior and uncomfortable seating, but with the added bonus of security theater to deal with.  Might more people take interest if they could just walk by and drop in on a case?  Chances are we won't ever know.

Top 10 Personally Influential Albums

A few weeks ago on Facebook my friend Robert Pashman (or 3rDegree fame - go buy their music!), put up a list of 10 progressive rock albums that had been particularly influential on him.  I liked the idea of such a list, one that's not "favorites" or "bests," but that had some kind of personal meaning.  Given that I'll always shamefully steal somebody's idea if it's a good one, here's my version of that list, slightly modified.  These are the ten prog albums that have been personally influential to me because of some particular door they opened or some such thing.  Since, as I said, this isn't a list of bests and, frequently, these aren't my favorites albums by these bands, I've added a note about those too, if they're different.

In chronological order of their release, not when I first heard them . . .

Genesis - Nursery Cryme (1971)

Having two older brothers meant I was exposed to a lot of music that was "too old" for me when I was a kid.  Without a doubt, the one that took the most was old Genesis, of which my brother Todd had all the Gabriel/Hackett era albums on LP.  I got into them all at various points, but I think this one was the first one that really hooked me.  Just look at that cover - how could that not lure in an impressionable elementary school kid?  Musically, it was the two story songs on side one - "The Musical Box" and "The Return of the Giant Hogweed" - that roped me in.  I didn't get it all, but I loved it.  Genesis, as a result, is probably my favorite band of all time - at least today.

Favorite album: Selling England by the Pound

PFM - Storia di un Minuto (1972)

Until I got to college I didn't know that prog spilled much beyond the borders of the UK (and Canada and the US, to a certain extent).  I certainly had no idea that there was a thriving prog scene in Italy in the 1970s and that was where some of the British bands (like Genesis) first gained some popularity.  Storia di un Minuto was my first foray into Itlian prog and any music at all that didn't come with English lyrics.  That was an important Rubicon (so to speak) to cross because, while I'd heard and enjoyed a lot of instrumental music, I didn't know if I could get into something with lyrics that I completely couldn't understand.  Turns out, not only can I get into something like that, I'd much rather (in most instances) hear lyrics in a foreign tongue as opposed to stilted, forced English.  It no doubt helped that PFM's style of symphonic prog is beautiful and spiced with just the right amount of jazzy embellishments.

Gentle Giant - Octopus (1972)

When I went to college and got on the Internet, I discovered two things about prog: (1) it was still a living, if much lesser, genre (to quote Zappa on jazz, "it's not dead, it just smells funny") and (2) there were a whole bunch of bands from the 1970s in the genre they I had never heard of before.  I think of these as "second tier" bands, not based on quality but because they never really broke out the way Yes, Pink Floyd, and the like did. Nevertheless, they were on major labels, toured regularly (sometimes even in the US), and generally had a good run.  One of the first of these bands I discovered and loved was Gentle Giant and, particularly, Octopus.  I'd never heard such a diverse collection of tunes before on one album that, nonetheless, sounded like they all belonged together.  Octopus taught me that there were hidden gems out there and that looking for them could be a lot of fun (and expensive!).

Yes - Yessongs (1973)

Being a child of the 1980s and 90s, by the time I was actually buying albums I did it on cassettes (briefly) or CD.  I still managed to get a few LPs, including this triple-LP live monument, complete with the big Roger Dean gatefold sleeve.  I got it on vacation one year when we visited my aunt who lived outside Philly.  I don't know what made it an appropriate souvenir, but hey, you buy stuff on vacation, so what the fuck?  Given what's included - all of Close to the Edge and most of the important bits from Fragile and The Yes Album - an argument could be made that it's the only Yes album anybody needs.  It's a losing argument, of course, but it could be made with a straight face.  You also get solo spots from most of the band, which for Rick Wakeman leads to belting out the Hallelujah Chorus on a Mellotron.  When I was a kid I had no idea how he did it - I knew about samplers, but in 1972? - but thought it was awesome and is part of why I fell in love with that instrument.

Favorite Album: Close to the Edge

King Crimson - USA (1975)

Occassionally I have found myself at odds with the prevailing prog zeitgeist.  One of those situations involved the last of King Crimson's many 1970s variants, the one based around the rhythm section of John Wetton and Bill Bruford.  I leaned more toward the Belew era stuff and didn't quite get all the fuss over Larks Tongues in Aspic or Starless and Bible Black.  That changed with USA, which is drawn from that version of the band's last tour (after which Krim, for neither the first nor last time, broke up).  It's a powerful, blistering set, during which Wetton and Bruford show who were really the bosses in that lineup.  The improv "Asubury Park" is funky and menacing all at the same time.  USA (which, in spite of being a live album, has some aftermarket studio adjustments) may not be the definitive live document for that Krim era, but it's the one that got to me.

Favorite Album: Red

Hatfield and the North - The Rotter's Club (1975)

One of the things I discovered when I found out about those second tier bands was that a whole subgenre of prog arose from one specific spot in England, the Canterbury area.  Though it's hard to pin down just what makes the "Canterbury sound," it's enough to say that most of the bands that came out of that area had a lighter touch than their symphonic cousins, dabbled in the jazzier side of things musically (I often think of Cantu bury prog as "rock guys playing jazz," while fusion is "jazz guys playing rock." Your mileage may vary.), and often had lyrical content of the surreal and absurdest type.  Hatfield and the North definitely had all that in spades and this album opened my ears to this kind of music.  It also introduced me to keyboard player Dave Stewart, an immense talent and wonderful writer (of music and prose).

Rush - Grace Under Pressure (1984)

I was a big Rush fan long before I started buying music for myself - one of those other few LPs I had was 2112 - and for a long time I thought they would be what prog was in the world going forward.  To that extent, Grace Under Pressure is the first Rush album I bought when it was new (on cassette!) and, so far as I can remember, the first new album I really looked forward to.  At a time when the 70s prog giants were in the process of "selling out," Rush still seemed to be in their own world, even if it was one that had been streamlined and polished since, say, Hemispheres.  Still one of my favorites.

Favorite Album:Moving Pictures

Marillion - Misplaced Childhood (1985)
As I said above, one of the things I discovered in college was that prog was not, in fact dead.  It had never really gone away, although it's commercial heyday was over just after I was born.  Nonetheless, I learned about a brief prog renaissance in the early 1980s and, in particular, of Marillion.  I'd actually heard of Marillion before - my brother had Misplaced Childhood on LP - but never actually heard them.  Misplaced, a highly polished concept album about - well, I'm still not quite sure (ask Fish) - was their commercial high water mark, producing a couple of European chart hits.  It is, perhaps, the definitive example of the early 80s phase called neo-prog.  More importantly to me, it was an entrance into the world of "new" prog that showed it had a lot to offer, as well as an introduction to a band that would quickly become a favorite of mine.
Favorite album: Marbles

echolyn - as the world (1995)
Prog didn't die in the 1970s, and even after the quick (commercial) rise and fall of neo-prog, the genre slouched along until the 1990s, when the Internet and easier CD production led to the explosion that continues today.  echolyn was a bit part of it, breaking through to have as the world released on a major label.  Hell, I found it just by browsing my local CD shop in Morgantown - no Internet orders, no Amazon searching, nothing!  Aside from that, this is one of those albums that I can remember listening to the first time, being completely blown away by the tight three-part harmonies and exquisite playing.  echolyn would become one of my favorites and a prime example that modern prog was alive and well.
Favorite Album: Mei

Mandrake Project - A Favor to the Muse (2006)

One of the cornerstones of the modern prog scene are festivals.  Held every year (hopefully), they bring anywhere from a few to a dozen bands together in one place over one weekend.  Not only are they a great place (sometimes the only place) to see favorite bands, they're also great for being blown away by some group you've never even heard before.  My first festival experience was the dearly departed 3RP festival outside Pittsburgh.  It's only fitting, then, that my first completely out of left field unknown find at a festival happened there and involved Pittsburgh's own Mandrake Project.  There's something special about having your mind blown by a band you knew nothing about before they took the stage.  I'm happy to say it's happened a couple other times since and, I suspect, will again in the future.

Finally, an honorable mention.  I left The Who's Tommy (1969) off this list because it's not really "prog," but it nonetheless had a big impact on my prog life.  It was the first album I was aware of that aimed to be something more than a collection of songs.  In other words, it was my first concept album.  That's not something that's only part of prog, but, as a genre, prog's embraced it pretty heavily.  The deaf, dumb, & blind boy helped launch me on this amazing journey.

Friday Review: Broadway the Hard Way

In 1988 Frank Zappa embarked on what would be his last tour.  He put together a big band, complete with a five-piece horn section and drilled it on dozens of songs, both reworked old favorites and new material.  Zappa mainstays like Ike Willis and Ed Mann were joined by newly minted stunt guitarist Mike Keneally.  Musically, the result was one of the best periods of Zappa's career, with argument being split as to whether this band or the mid-70s Roxy & Elsewhere band came out on top.

Sadly, the band fell apart, rather spectacularly, following stops in the eastern United States and Europe.  As a result, the 1998 band has an almost mystical quality to it, both because people wonder just what caused it to implode and the because it was, for many folks, the best band they never heard in their lives.

Thankfully, Zappa saw fit to record every stop on the tour (save one, due to technical difficulties) and, for a band with an aborted lifespan, it's ridiculously well documented.  During Zappa's lifetime he released three albums of material, with additional tracks showing up on some You Can't Do That On Stage Anymore collections.  Even more tracks have been released since Zappa's death.

The first of the three albums to be released was Broadway the Hard Way (also the name of the tour itself).  Originally an LP of almost all new material, it was expanded for its CD release with several reworked older tracks.  The new stuff is almost all political or socially satirical in nature  and will put off some folks.  However, the political stuff is bipartisan (Jesse Jackson gets smacked in "Rhymin' Man," along with the GOP in tracks like "When The Lie's So Big?" and "Jesus Thinks You're a Jerk") and some of the other stuff is good fun ("Elvis Has Just Left the Building," for instance).  There's also an appearance from "Mr. Sting" to perform "Murder By Numbers" and a ripping "Hot Plate Heaven at the Green Hotel."  Still, it's the least essential of the three because it's so bogged down in the era.

The two-disc The Best Band You Never Heard In Your Life featured more older material, although in radically different forms given the arsenal Zappa had at his disposal.  Good examples would be the run of One Size Fits All tunes on disc one.  It also features the highest quotient of Jimmy Swaggart related songs (he was a regular rhetorical punching bag throughout the tour), including "Swaggart Versions" of "More Trouble Every Day" and "Lonesome Cowboy Burt."  Finally, this release includes some bizarre cover versions, some recorded during sound checks, topped off by a version of "Stairway to Heaven" in which Zappa the guitar god lets the famous Jimmy Page solo be taken by  . . . the horn section.

The final release, also two discs, was Make a Jazz Noise Here, which is the most "serious" and "heavy" of these albums.  It's also the most essential.  It covers a lot of the more extended instrumental tracks, often laden with improvisation and Synclavier madness from various parties.  It's here where the band shines the most, as on the suite of old Mothers tunes stripped (for the most part) of vocals.  Check the uniform attacks from the horns and percussionist Ed Mann on "The Orange County Lumber Truck" and marvel.  Having said that, some of the pieces on disc one wander a bit.  However, disc two is probably my favorite hunk of Zappa ever released (except, maybe, depending on the day of the week and the barometric pressure, Roxy & Elsewhere).  All the songs are strong and they have enough structure to them to let you know where you are.  When things end with Zappa introducing the band at the end of "Strictly Genteel," it sounds like a perfect cap on the whole affair.

Speaking of the whole affair, what the fuck happened to this band, anyway?  The short answer is that a rift quickly developed between bass player Scott Thunes, also the "Clonemeister" (the guy responsible for rehearing in Zappa'a absence) for this tour and most of the rest of the band, particularly drummer Chad Wackerman and the horn section.  The long answer (although, honestly, there isn't much more to it) is laid out in Andrew Greenaway's recent book, Zappa the Hard Way.  Using extensive interviews (new and old) with most of those involved, Greenaway provides an interesting insight into the tour, the personalities involved, and how the whole thing fell apart.  It's not the most integrated work - Greenaway is prone to introducing a person and quoting whole paragraphs of the interview - but it's chock full of interesting anecdotes, not all of them focused on what went wrong (my personal favorite was the story of the night Mats & Morgan got to meet and play with Zappa).

One thing Greenaway gets right - because I agree with him! - is that Zappa was a bit of a hypocrite when it comes to these live albums.  In the liner notes to each, Zappa proudly explains that the music contained therein was all performed live and with no overdubs.  While that was true, it elides the fact that most of the tracks are stitched together from multiple performances, thus presenting performances that never really existed in the wild.  I've got no problem with that - it's a stunning technical achievement in some instances (over 20 in "Jesus Thinks You're a Jerk") - but don't get all holier than thou about it.

At the time the 1988 tour fell apart, nobody knew it was Zappa's last.  He made statement (both after and before) about being done with the rock band thing, but it's hard to say if he could have kept off the stage had he lived past 1993.  As a last hurrah, it's a shame it had to implode the way it did.  But it did leave behind an awful lot of excellent music for posterity.

The Details:
--------------------------
Broadway the Hard Way, by Frank Zappa
Released 1998

Tracks:
1. Elvis Has Just Left the Building (2:24)
2. Planet Of The Baritone Women (2:48)
3. Any Kind Of Pain (5:42)
4. Dickie's Such An Asshole (5:45)
5. When The Lie's So Big (3:38)
6. Rhymin' Man (3:50)
7. Promiscuous (2:02)
8. The Untouchables (2:26)
9. Why Don't You Like Me? (2:57)
10. Bacon Fat (1:29)
11. Stolen Moments (2:57)
12. Murder By Numbers (5:37)
13. Jezebel Boy (2:27)
14. Outside Now (7:49)
15. Hot Plate Heaven at the Green Hotel (6:40)
16. What Kind Of Girl? (3:17)
17. Jesus Thinks You're A Jerk (9:15)

The Best Band You Never Heard In Your Life, by Frank Zappa
Released 1991

Tracks:
Disc one
1. Heavy Duty Judy (6:04)
2. Ring Of Fire (2:00)
3. Cosmik Debris (4:32)
4. Find Her Finer (2:42)
5. Who Needs The Peace Corps? (2:40)
6. I Left My Heart In San Francisco (0:36)
7. Zomby Woof (5:41)
8. Bolero (5:19)
9. Zoot Allures (7:07)
10. Mr. Green Genes (3:40)
11. Florentine Pogen (7:11)
12. Andy (5:51)
13. Inca Roads (8:19)
14. Sofa # 1 (2:49)

Disc two
1. Purple Haze (2:27)
2. Sunshine Of Your Love (2:30)
3. Let's Move To Cleveland (5:51)
4. When Irish Eyes Are Smiling (0:46)
5. "God Father Part II" Theme (0:30)
6. A Few Moments With Brother A.West (4:00)
7. The Torture Never Stops (Part One) (5:19)
8. Theme From "Bonanza" (0:28)
9. Lonesome Cowboy Burt (Swaggart version) (4:54)
10. The Torture Never Stops (Part Two) (10:47)
11. More Trouble Everyday (Swaggart Version) (5:28)
12. Penguin In Bondage (Swaggart Version) (5:05)
13. The Eric Dolphy Memorial Barbecue (9:18)
14. Stairway To Heaven (9:19)

Make A Jazz Noise Here, by Frank Zappa
Released 1991

Tracks:
Disc one
1. Stinkfoot (7:40)
2. When Yuppies Go To Hell (14:36)
3. Fire and Chains (3:57)
4. Let's Make The Water Turn Black (1:36)
5. Harry, You're A Beast (0:47)
6. The Orange County Lumber Truck (0:42)
7. Oh No (4:43)
8. Theme From Lumpy Gravy (1:12)
9. Eat That Question (1:55)
10. Black Napkins (6:56)
11. Big Swifty (11:13)
12. King Kong (13:11)
13. Stars Won't Work (3:33)

Disc two
1. The Black Page (New Age Version) (6:45)
2. T'Mershi Duween (1:42)
3. Dupree's Paradise (8:35)
4. City Of Tiny Lights (8:01)
5. Royal March From L'Histoire Du Soldat (1:00)
6. Theme From The Bartok Piano Concerto #3 (3:43)
7. Sinister Footwear 2nd Mov. (6:19)
8. Stevie's Spanking (4:26)
9. Alien Orifice (4:15)
10. Cruisin' For Burgers (8:28)
11. Advance Romance (7:43)
12. Strictly Genteel (5:37)

Players for all:
Frank Zappa (lead guitar, synth, vocal)
Ike Willis (rhythm guitar, synth, vocals)
Mike Keneally (rhythm guitar, synth, vocals)
Bobby Martin (keyboards, vocal)
Ed Mann (vibes, marimba, electronic percussion)
Walt Fowler (trumpet, flugel horn, synth)
Bruce Fowler (trombone)
Paul Carman (alto saxophone, soprano saxophone, baritone saxophone)
Albert Wing (tenor saxophone)
Kurt McGettrick (baritone saxophone, contrabass clarinet)
Scott Thunes (electric bass, MiniMoog)
Chad Wackerman (drums, electronic percussion)

Zappa the Hard Way, by Andrew Greenaway
Published 2011

A New Look Prison for a New Approach?

Most of the time when I write about prisons, it's about the desire of the United States to have fewer of them.  That being said, we're not likely to go the route of Sweden and start closing prisons anytime soon.  To the contrary, between replacing aged structures and the popular job project that is rural prison building, we're likely to be having pen raisin's for some time to come.

Which is what makes this proposal so intriguing (via).  It's from an architecture student at Harvard who has plans for a new concept prison-plus called PriSchool.  Rather than being built in the sticks, would be built right downtown:

PriSchool is designed precisely for those non-violent offenders who struggle to stay on the right side of the law when released. Situated in a Brooklyn neighborhood surrounded by “million dollar blocks” – city blocks with such high crime that the state is spending over a million dollars a year to incarcerate their residents – the prison/school hybrid rethinks what a prison can achieve, positing it as a place where prisoners and students can learn from each other, and where criminals can be rehabilitated in preparation for their return to society.

It would be a complex of four linked buildings - the prison itself, a school of criminology, a 'pre-release building' (something like a halfway house, I'm assuming), and a community center.  Take a look at some of the pictures here. 

It's awfully cool looking concept, if nothing else.  It also shows the kind of approach that might lead to long term solutions, if it can overcome short term objections.  Some folks, no doubt, will not want a prison or any kind plopped down in the middle of their neighborhood (although rural communities tend to welcome the jobs).  And others, unfortunately, are too caught up in the idea that convicts need to be punished and nothing else, regardless of the fact that most people in prison will get out someday.

I'm not certain that the problems of our incarceration nation can be solved by architecture, but I'm willing to give it a shot.

Friday Review: Bright-Sided

My favorite current comic strip is Pearls Before Swine.  Part of why it appeals to me is that I see the two main characters, Pig and Rat, as the dueling sides of my own personality (see also, Van der Graff Generator's "Man-Erg").  Pig is sunny, trusting, gullible, and generally simple minded.  Rat is a cynic, a curmudgeon, and thinks the best character for a childrens' book series is a frequently drunk, homicidal donkey.  You get the picture.  I mention that because, while reading/listening to Bright-Sided, I kept wondering about how Pig and Rat would react to a "positive thinking" sales pitch.  Undoubtedly, Pig would gleefully embrace the power of positive thinking.  Rat, by contrast, would beat it into a coma with a tennis racket.

Barbara Ehrenreich would probably help Rat by holding positive thinking down.  In Bright-Sided she catalogs how the idea that good thoughts can manifest good outcomes in the world around us has infiltrated just about every facet of modern American life.  She begins with the world of breast cancer, with which she was diagnosed in 2000.  She was appalled by the amount of ink spilt not only on the idea that one must have a positive attitude toward treatment in order to survive, but that in many quarters suffers are encouraged to see breast cancer as a "gift" that actually changes their lives for the better.  Ehrenreich traces such counter-factual positive thinking through modern business, religion, academics, and financial sectors.  It is, she argues, largely responsible for the financial meltdown of 2007.

Ehrenreich also goes back in time a bit to figure out where this aversion to reality came from.  Oddly enough, she traces it back to another aversion from reality - religion.  Specifically, Ehrenreich argues that what we think of today as the "positive thinking" movement began as a reaction to the particularly harsh, judgmental 19th Century form of American Calvinism.  In a world shaped by a view that your salvation (or, more likely, lack thereof) was preordained, a contrary voice saying you had more power to shape your own destiny than you ever knew was compelling.  The result was the New Thought movement, out of which sprang things like Christian Science and the Unity movement.

One irony of the positive thinking movement is that, although it began as a reaction to a particular strain of Christianity, it was eventually adopted by a wholly different one - the "prosperity gospel" megachurches.  Ehrenreich delves into that as well - particularly focusing on the church of Joel Osteen - and we see the self-affirmation and "imagine it and you can have it" morphed into "pray hard enough and God will provide it."  Same shit, different container, as they say.

To be honest, I've never given positive thinking, or its more recent commercial versions like The Secret much thought.  It's woo, of course, but largely harmless woo, right?  Ehrenreich convinced me otherwise.  Aside from the basic truth that someone who thinks they can mould reality to their will is going to be seriously disappointed eventually (perhaps in disastrous ways - see the financial meltdown), Ehrenreich also went into how the push to think positively helps obscure injustice in the world.  This particularly came through in her discussion of positive thinking as it invaded business practices during the 1980s, particularly when it comes to downsizing.  Why be angry at a political or economic system that just made you unemployed after years of work for a company when, if you think it hard enough, you can see it as an exciting new opportunity to change your life?  Likewise, why should the cancer patient rail against the inequality of living in the only civilized country on Earth without national healthcare when you can discover personal growth through the arduous (and expensive) process of mere survival?  In the end, all gurus sound like Pangloss, preaching about how this is the best of all possible worlds.

Having said that, there's a sense that Ehrenreich is only going after low hanging fruit.  It's easy to point and laugh at people who think they'll get a new Mercedes just by thinking hard enough about it.  The folks that peddle that nonsense are cranks of the first order.  Wealthy cranks, but cranks nonetheless.  But Ehrenreich doesn't really investigate where positive yet still realistic thinking might be helpful in certain circumstances.  To use a personal example, I wouldn't keep writing and working on fiction to try and get it published if I didn't have a little bit of "I know I can do this" running round in my head (confession time - I occasionally daydream about what my Wikipedia entry will eventually say).  That being said, I don't sit back and think I'll get published and be a successful author just by visualizing it.  I know there's a lot of work still to be done and lots of things I need to learn.  But if I didn't have some positive outlook on the whole process, why would I stick with it?

Which is to say, Ehrenreich's book isn't going to sway a lot of people away from the power of positive thinking.  She's largely preaching to the skeptical choir.  Nor does she really make any attempt to understand the allure of positive thinking to those who support the industry by buying books and DVDs and attending seminars devoted to it.  Sure, the stuff about the Osteens had its place, but what about those in the congregation who come back Sunday after Sunday?  It's too easy (and condescending) to dismiss them all as idiots and be done with it.

What Bright-Sided has going for it is that it's a fun read and, in many spots, an interesting one.  However, it falls short of really proving how positive thinking undermined America.

The Details
------------------------
Bright-Sided: How The Relentless Promotion of Positive Thinking Has Undermining America
By Barbara Ehrenreich
Published 2010

Avoid Woodbridge, Illinois (Or Pay the Price)

Let's just get right down to it.  If you are arrested in the Village of Woodbridge, Illinois, you will be billed for the pleasure.  You will be separated from $30, regardless of whether you are eventually convicted of the crime for which you were arrested.  There is no procedure in place to challenge the fee or have it reimbursed.

If you think that's outrageous, you're right.  What's even more outrageous is that the Seventh Circuit just blessed it (via).

Here's how the scheme works - if you are arrested for committing a crime in Woodbridge, you will be charged $30 when brought to the police station for booking.

That's it!  Doesn't matter if the cops arrested the wrong guy or lacked probable cause to make an arrest or were out to score vengeance against the guy who slept with his wife.  Guilt or innocence is irrelevant.  If you're booked by the Woodbridge police, you will be billed for the pleasure.

Jerry Markadonatos challenged this practice after he was arrested and then participated in a diversionary program that left him with the equivalent of a not-guilty verdict.  Seems like a due process slam dunk, right?  Generally, if the government is going to take your property, they've got to provide some procedure by which you can fight it.  The Woodbridge fee is a binary, no discretion rule - get arrested, pay $30.

Amazingly, for two of the judges on the Seventh Circuit panel, this was the program's saving grace.  For one of the things to consider in a due process challenge is the chance of an erroneous deprivation of property which, in the case of Woodbridge, the court concluded is "non-existent":

Under the scheme, every person who is arrested is charged the booking fee, regardless of whether they were arrested without probable cause. Thus, a Woodridge employee determining whether to charge the booking fee is presented with a binary choice: 'yes' the booking fee must be charged to a person who has been arrested and is being booked by the Village; or 'no' the booking fee must not be charged to a person who has not been arrested and is not being booked by the Village. This determination is made all the easier by the fact that the booking fee is collected only upon an individual’s arrest and booking. Thus, the Court cannot envision any situation in which one who has not been arrested is charged the booking fee. That is, it is only when one is arrested and booked that the collection of the fee occurs, thus making the potential for erroneous deprivation practically non-existent.

In other words, because the bureaucratic drone presented by a cop with a freshly arrested person has no authority to question the arrest, there's no risk of an erroneous deprivation of that person's property.

Yes, that's as loopy as it sounds, but it gets even worse:

Mr. Markadonatos was arrested and later appeared before a judge. Thus, if he believed that he was not or should not have actually been arrested, he had the opportunity to alert both the arresting officer and the judge hearing his case of that fact. While neither of these opportunities is formally provided for in the statute, they are more than sufficient to safeguard against an erroneous deprivation that will practically never occur.

Seriously?  Let's take the second option first - have you ever appeared before a judge and asked him or her to do something that's not within their power?  It doesn't make them happy.  That hardly seems like a reasonable option.  As for arguing with a cop, that's a good way not only to be loaded down with further charges (and, presumably, $30 fees) but wind up beaten, tazed, or shot.  Arguing with a cop, even if you're in the right, almost never ends well.

On top of that, the court concludes that the village has a legitimate interest in collecting this some kind of user fee, to help defray the cost of them deciding to arrest you.

Judge Hamilton dissents from this decision and lays out why it's ludicrous in the first paragraph:

This should be a simple case. The village’s 'booking fee' ordinance is unconstitutional
on its face. It takes property from all arrestees—the guilty and the innocent alike—without due process of law. The deprivation occurs at the time of arrest, immediately and
finally. It occurs based on only the say-so and perhaps even the whim of one arresting officer. By no stretch of the imagination can that be due process of law. The fee is in substance a criminal fine, modest but a fine nonetheless, and it is imposed regardless of the validity of the arrest and regardless of whether there is any criminal prosecution or what its outcome might be.

He also points out the absurdity of the court's "no risk of erroneous deprivation" conclusion:

the risk of erroneous deprivation is in fact very substantial. The pivotal decision that imposes the deprivation is a lone police officer’s decision to arrest. A lone police officer’s decision is subject to judicial review even when she writes a mere speeding ticket, let alone imposes a criminal fine. Many people who are arrested are not even charged with crimes, and many charges result in either dismissal or acquittal, so that as many as 30 percent and perhaps nearly 50 percent of arrestees may pay the fee without any criminal conviction.

In the end, the most difficult thing for Judge Hamilton is whether the scheme is more Orwellian or like something out of Lewis Carroll.  Both, is what he concludes.

As for the "user fee" concept, he points out that cases involving user fees all arise when someone voluntarily takes advantage of some service, like crossing a toll bridge.  Being arrested is not, except in some truly rare circumstances, a thing done voluntarily:

During oral argument, the village tried to justify this user fee theory by explaining that a person arrested by mistake would still properly owe the fee because he would have
benefitted from the “services” of being photographed and fingerprinted. That argument surely qualifies as Orwellian.

Indeed.  Regular readers know that one of my pet peeves is states locking people up on the cheap.  If you want to deprive people of their liberty, you have to pay for it.

So, a bit of advice as you're making vacation plans for the summer - avoid the village of Woodbridge, Illinois.  If they've got nobody to arrest, they've got no need to raise funds, right?

On Coming Home

As late as the early 1990s, if you were an American and wanted to play soccer professionally, your only real option (leaving to one side minor leagues and indoor) was to head to Europe.  The generation of players who put US Soccer back on the map largely played overseas.  Paul Caligiuri, who hit the "Shot Heard Round the World" that sent the US to the 1990 World Cup played for SV Meppen in Germany.  When the US hosted the World Cup in 1994, major starers played in Germany (Thomas Dooley at Leverkusen and Eric Wynalda at Saabrucken), England (John Harkes at Derby County and Cobi Jones at Coventry City), and even Italy (Alexi Lalas at Padova).

That changed in 1996 when Major League Soccer kicked off.  Nobody then (particularly) or now would argue with a straight face that MLS is one of the world's best leagues, but it was something to build on and provided a place for new American talent to grow.  Not for nothing, but a lot of those Yanks Abroad - including Harkes, Lalas, and Wynalda (who scored the league's first goal) - came home to help the league get going.

Regardless, since then there's been a perception among lots of American soccer fans that for American players to really maximize their potential, and push the US Men's National Team to higher things, the best of them needed to play in Europe.  MLS was fine for starting out, but testing yourself against the best players in the world by playing in the English Premier League or Serie A should be the ultimate target.

For the longest time the whipping boy for American fans on this score has been Landon Donovan who, for all his success in MLS and with the USMNT, never really found a spot at a top European club.  When he returned from Leverkusen in 2005, critics called him soft and questioned his commitment to being the best player he can be.  In spite of that criticism (or maybe because of it), Donovan kept his top form, for the most part, and will step away from the USMNT sometime soon as one of its all time greats.

As it happens, as MLS nears its 20th anniversary, there appears to be a wave of American stars coming back home.  It started with Clint Dempsey, moving from Tottenham in England to the Seattle Sounders last year (though he's back in England on load during the MLS off season), but appears be be gaining steam.  Most notably, midfielder Michael Bradley has decided to trade in the Serie A club Roma for the altogether more frigid environs of Toronto.

Bradley, after a stint in MLS with New York, moved to Europe in 2006.  In fairly quick succession he moved successfully from club to club, from Holland to Germany and finally to Italy.  All the while he became one of the USMNT's best players, finally emerging from the shadow of nepotism when his father, Bob, moved on to coach the Egyptian national team in 2011.  As a result, there's been some backlash about Bradley's return to MLS.

Unlike Dempsey, who's arguably reached the peak of his career and will only trend downward (slowly, we hope!) from here, Bradley is only 26 years old.  He should have another three of four years of development.  And, unlike another returning player, defender Michael Parkhurst (from Germany to the Columbus Crew), Bradley was not simply riding the pine at Roma.  He had played less than he would like, obviously, and perhaps the situation was going to get worse.  But that is precisely the kind of cutthroat competition that most American soccer fans think will make players better in the long run.

In other words, there are some fans who are peeved because, regardless of how beneficial the move will be for Bradley financially or MLS in terms of stature, it could hurt the USMNT.  It's particularly bad timing, given the World Cup coming up this summer in Brazil, where Bradley figures to be a key figure.  The fear, then, is that Bradley will backslide during his time in the Great White North.  And, besides, what will the rest of the soccering world think if our best player runs back home at a time like this?

I admit, I'm conflicted.  As an MLS watcher I think that if this is part of a plan by the league to build the level of play and do so with recognizable American players, that's a good thing.  I'd rather Bradley come to DC United, but what can you do?  On the other hand, there is something disappointing about leaving Roma so early.  Will it impact the World Cup?  Hard to say - is it better to play regularly at Toronto in the run up or sporadically at Roma?  I don't think anybody really knows the answer to this question.

Here's the thing, though, when it comes down to it.  Neither Bradley nor any other player owes me anything, really.  He's got to make decisions based on what he thinks is best for him as a player and his family.  If he'd rather come back to MLS and play, who am I to tell him he's wrong?  Same for the inevitable discussions on dual-nationality players who decide to play for another country - there's no point getting pissed about it, right?

As for the national team - it is what it is.  The United State will likely never be the kind of consistent world power that Spain, Brazil, or Germany is.  We're much better than we once were and, when the circumstances are right, can beat anybody.  A good, deep run in a World Cup isn't beyond us, but it isn't likely, either.  As fans, Americans need to accept that.  Hope for the best, root hard, and scream loud for the team to win it all, but know, at the end of days, it's not likely to happen.  Regardless of where Michael Bradley or anybody else decides to make his living.

New Year, New Tune

In spite of the title of this post, this song has actually been percolating since April of last year, but I just got around to finishing it.  It originally had a different (more macabre) title and was going to wind up going a completely different direction.  Such is the life of music.

If "Wombats In Estrus (Parts 1, 2, and 3)" sounds awfully silly, that's because it is.  One of the great benefits of writing songs without words is that song titles can be just about anything (see, Zappa, Frank and National Health, among others, for some wonderful examples).  I jotted down the title sometime last year becsuse it reminded me of King Crimson's "Larks Tongues in Aspic."  Given the history of that tune (4 parts spread over three records), it seemed to fit what this piece became.

"Wombats . . ." is based around two notes that spawn the bass lines, chords, and the melodic bits.  It wasn't planned that way, but it turned out pretty well.  Part 1 (heavilly indebted to OMD's "New Stone Age") is more synth-poppy, while Part 2 is more ambient and spooky.  Part 2 includes samples from Freesound  (193818__geoneo0__four-voices-whispering-6-wecho by geoneo0) and a Sony collection called Rabbit Asylum (The Stuttered 00's), which is as weird as the name suggests.  Part 3 was originally it's own separate bit, but I thought it tied things together nicely (the drum pattern is indebted to "Astonomic Club" from Air's soundtrack for Le voyage dans la lune).

Equipment wise, this tune relies heavily on two of my older bits of kit, the Korg M50 workstation and the Alesis Micron virtual analog synth.  There's also some (virtual) Yamaha CS80 in the midsection and, of course, some (virtual) Mellotron in Part 3.  The final melodic bit in Part 3 is from the Nord Lead 2X.  None of that matters to most of you, but somebody might find it interesting.

So, enjoy "Wombats In Estrus (Parts 1, 2, and 3)"!

Another Day, Another Corrupt Crime Lab

If you live in West Virginia and care about criminal justice issues, the name Fred Zain should make you cringe.  Zain was a serologist in the West Virginia State Police crime lab between 1977 and 1989 (after which he took his talents to Texas).  Zain made a habit of falsifying evidence leading to wrongful convictions.  You can read the details of his conduct in this 1993 West Virginia Supreme Court decision, which concluded:

The matters brought before this Court by Judge Holliday 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. We direct Prosecutor Forbes to pursue any violation of criminal law committed by Trooper Zain and urge that he consult with the United States District Attorney for the Southern District of West Virginia. We direct our Clerk to send all relevant papers to both of them. This conduct should not go unpunished.

Zain died before he was held criminally responsible for any of his misdeeds.

Almost more important than his individual culpability, though, was this observation:

This corruption of our legal system would not have occurred had there been adequate controls and procedures in the Serology Division. Judge Holliday's report is replete with the deficiencies and derelictions that existed and as were uncovered by the American Society of Crime Laboratory Directors whose team reviewed the forensic data.

That was two decades ago.  Which is just to say that, in West Virginia at least, we should not be surprised by malfeasance in crime labs.  Yet it continues to happen.

The latest notorious crime lab scandal comes from Massachusetts, where chemist Annie Dookhan was convicted of doing false testing in numerous drug cases, leaving a complete mess in her wake:

When the scandal broke in August 2012, those incarcerated based on evidence Dookhan had tested did have a day in court. Many were identified immediately, and had their sentences stayed. More than 3,200 'drug lab' court hearings have been held.

In spite of that, things are moving slowly, if at all, when it comes to remedying the situation.  Explains the state ACLU's legal director (and former fellow Fourth Circuit public defender) Matt Segal:

'The state has already spent hundreds of millions of dollars on this scandal, and what have we gotten for that expenditure? The answer is almost nothing,' Segal says. 'Certainly hasn't been justice; it hasn't been a better approach on the drug war.'

Among the things Dookhan lied about were her credentials, for which, at any rate, there are no national standards.  Standards may not matter much, anyway, as most of the labs involved in some kind of scandal are accredited by a national organization. For what it's worth, West Virginia officials were told in 1985 that Zain had failed courses in sreology and blood testing, but nothing came of it.

A major problem is that crime labs are - like police and prosecutors - part of the State that prosecutes defendants (although, it appears, that Dookhan's lab wasn't part of the state police, at least).  They're on the same side of the ledger, not a truly neutral arbiter of scientific fact.  By contrast, public defenders (federal ones, anyway) are employees of the court system itself, a branch apart from the prosecution.  Any pressure that a scientist feels to return the "right" answers as opposed to the accurate one has dire consequences in court.

And lest anyone think "well, they're just criminals, they must have been guilty of something," keep in mind that you, dear taxpayer, pay the final bill:

Besides the expense of investigating and prosecuting Zain, and retrying cases related to him, West Virginia has paid at least $6.5 million to settle lawsuits by wrongfully convicted defendants.

* * * 

His work in Texas also was under fire and led to the payment of at least $850,000 to two men.

Crime lab reform needs to happen because it's wrong to lock people in a cage based on bullshit and made up results.  But if, as is so often the case, the only motivation for change is to save money down the road, I'm all right with that.

And You Thought [Insert Crappy Beer Name]* Tasted Like Piss!

Ignore the headline on this article from the Atlantic - it's the kind of thing that comes from running an excerpt adapted from a book as a standalone article.  It doesn't purport to prove what it promises, but there's an interesting bit of history buried in it.  Besides, I clicked on it, so you, gentle reader(s), must bear some consequences, right?

In an all-too-slight discussion of whether the roots of religion can be traced to the use of hallucinogenic plants and the like, the article detours into a discussion of one particular plant, Amanita muscaria or "fly agaric," which is described as "certainly the world's most famous mushroom."  Whatever that means (it gets good tables at restaurants?).  It's available all over the globe, used everywhere from northern Asia to Mexico, and (by one telling) may be the basis for the substance Soma discussed in ancient Hindu scriptures.

But that's not the interesting, and mildly amusing, part.  No, that comes courtesy of Philip Johan von Strahlenberg, a colonel in the Swedish army of the early 18th century.  See, for 21 years at the beginning of the century Sweden (and others) fought a war with Russia (and others), during which von Strahlenberg became a prisoner of war.  He spent 12 years in Siberia and, in 1736, wrote a book about his observations of the locals:

Among other things he described the use of Amanita muscaria as an intoxicant by the local people. He also noted the following unusual behavior: 'The poorer Sort, who cannot afford to lay in a Store of these Mushrooms, post themselves, on these Ocassions, round the Huts of the Rich, and watch the Opportunity of the Guests coming down to make Water; And then hold a Wooden Bowl to receive the Urine, which they drink off greedily, as having still some Virtue of the Mushroom in it, and by this way they also get Drunk.'

Lest you think this is just a Swede with a grudge making fun of the locals, the practice first revealed by von Strahlenberg was confirmed by further observation.  Said observation provided more details on the practice, including the fact that the shroom is so potent that:

it was observed that the drinking of drug-containing urine could continue for up to five cycles passing from one individual to another before the urine lost its capacity for intoxication.

When it comes to getting fucked up, human beings can be a pretty determined and resourceful lot (one of many reasons the War on (Some) Drugs is such a farce).  Think paint huffers or addicts who, when the find out they can no longer crush Oxycontin pills, turn to the next best thing - heroin.  Regardless, drinking piss has to rank right up there on the list of WTF ideas.

* I'm not a beer drinker.  I wasn't even a drinker at all until I met my wife (boy does that sound worse than it really is!).  In order to provide verisimilitude to you, dear reader(s), I asked around for a good example of a shitty beer that might be said to taste like piss.  Sadly, I got too many varying answers to make it possible to choose one.  Apparently a lot of it tastes like piss, so I'm not really missing anything.  So, in order to get the full snark experience, please insert the name of your least favorite beer - the kind you'd take to a mortal enemy's party - in this spot.

Friday Review Year In Review

2013 wasn't the most productive year here at Feeding the Silence, but if there was one thing I returned to time and again, even in fairly fallow periods, it was the Friday Review.  Partly, I'm sure, that's because if I have something to say about a movie, album, or book this is the best place to do it.  It's also due to the fact that, based on page views at least (meager though they be), this feature is fairly popular.  So, here's what you might have missed in the past 12 months:

Music:

• Dare
• Harbor Lights
• The Raven That Refused to Sing (and Other Stories)
• ROSFest 2013
• Selling England By the Pound
• Yessongs/Tales From Topographic Oceans
• The Weight of the World

Books:

• Dies the Fire
• Earth Abides
• The End of Eternity
• State of Jones
• Under the Dome

Movies:

• Compliance
• The Exorcist
• Mellodrama: The Mellotron Movie
• 9012Live
• Zero Dark Thirty

More to come in 2014!

Christmas Treats!

To commemorate the festive occasion, have a little Christmas classic, reimagined by our friends in the Great White North:



Alas, not every Christmas song can be of such lasting quality.  Revel in this complete destruction of a disturbingly awful recent example, which is richly deserves (NSFW, naturally):



Merry Christmas, Happy Holidays, Sweet Saturnalia, etc. from the crew here at FtS!

Of Persons, Legally Speaking

I've written before about the Supreme Court's Citizens United decision and about how I generally think the Court got it right.  Now, I concede there are legitimate arguments that they didn't and I'm open to the argument that decision had a negative effect on the last election, but that's not really a concern of the First Amendment.  But my biggest pet peeve when I hear people (on the left, mostly) complain about Citizens United is when they insist the Court made some sort of sweeping, never before contemplated, holding about corporations being "people" in some sort of legal sense.

I bring this up because the idea of what constitutes a "person" legally has raised its head in a couple of cases the Court has accepted for review dealing with the Affordable Care Act's contraceptive coverage mandate.  There's some argument that because the Court found a corporation's First Amendment right to free speech was violated in Citizen's United, it will do the same with a corporation's putative Free Exercise rights.  But that's not quite the right question to ask.

Eric Posner dives into this a little bit, bringing in another recent legal case championed by the political left - an attempt to use New York's habeas corpus statute on behalf of chimpanzees being held in captivity.  He makes a couple of important observations.

First, he explains how the concept of non-humans being legal "persons" is not only not a new thing, but essential to the workings of the law:

The law also treats various nonhuman, nonsentient entities as 'persons' for certain legal purposes. Corporations, estates, trusts, partnerships, and government entities are often defined this way. Walmart, Illinois, and the California Pension Fund can sue, for example, without anyone asking if they have a right to abortion. Sometimes, corporations can bring suit (or be sued) because a statute explicitly gives 'persons' that right, and defines 'persons' to include corporations. At other times, the statute does not define 'persons,' but courts interpret the word to include corporations because they believe that is what Congress intended. This transubstantiation of corporations into persons advances some pretty uncontroversial policy goals. If corporations lacked personhood, you couldn’t sue FedEx for crashing a van into your car, or Walmart for selling you a defective space heater that burns down your home, or J.P. Morgan for defrauding you when you get a lemon mortgage. You wouldn’t be able to enter into contracts with a corporation at all. Legislatures and courts have been treating corporations like persons for hundreds of years: There is even a general interpretive rule in the law that when Congress says 'persons,' it means corporations as well, unless the context of the statute provides otherwise.

In other words, we want corporations to be persons sometimes because, if not, they'd exist wholly outside the law.

The other point he makes, which I think is important, is that in cases like the ACA one or the chimp habeas one, the ultimate issue is whether the particular statute it issue was meant to include itself in that group of applications where corporations are persons.

So:

Hobby Lobby’s opponents do not argue that RFRA doesn’t apply to corporations—they can’t, because it is undisputed that the statute applies to nonprofit corporations like the Catholic Church. The argument instead is that Congress did not intend RFRA to apply to for-profit, commercial corporations. Whoever is right, the answer turns on what Congress intended, not the metaphysics of personal identity.

This, I think, is a particularly important part when it comes to any big deal Supreme Court case.  In the media those tend to get boiled down into one or two grand issues, great questions of metaphysics and politics that capture popular attention.  In actuality, it's almost always more technical than that, wrapped up in procedural oddities that make it impossible for the Court to really take such questions on directly.

So, when Mitt Romney famously (and politically tone deafly) said, "corporations are people, my friend," he was neither completely wrong nor right.  Sometimes they are, sometimes they aren't.  And it's been that way for a long long time.

Friday Review: The Weight of the World

In spite of what Foreigner says, it never really feels like the first time.  There's just something about the spark of discovery that can't be replicated.  That's true of music as much as it is of, well, other things.

When Sanguine Hum took the stage at ROSFest 2012 I hadn't heard note one from them.  They only had one album out and I was perfectly willing to wait and see what they were all about in a live setting.  That worked out well, as they completely blew me away.  I went out and got a hold everything related to the band I could, from their album Diving Bell to a pair of EPs by a prior incarnation of the band called Antique Seeking Nuns.  I even tracked down an electronic side project called Nunbient. I was musically smitten.

Then, this year, along came The Weight of the World.  A new album!  Oh, joy!  Oh, rapture!  Oh . . . hey, wait a minute.  This isn't quite the same, is it?  No, this time I've got some idea what to expect going in.  The result, as it happened, was that the new album landed in my mind with a kind of depressing thunk.  It wasn't bad, certainly, but wasn't brain rattlingly brilliant.

That was months ago.

Now, I'm pretty convinced that The Weight of the World is, in fact, brain rattlingly brilliant.  It takes the style of Diving Bell, refines it even further and adds some neat extras (some imported from Nunbient, to my pleasant surprise).

Take "From the Ground Up," which opens the album with just a synthy beat and vocals, unlike anything from Diving Bell.  Things get more "organic" once the whole band joins in (Matt Barber favors a lot of Rhodes piano, which is far from a bad thing) and the long, lilting vocal lines sit atop winding guitar and synth lines.  Similar touches of electronica infuse "Cognoscenti" and the exponential spiraling of "Day of Release," as well.  A couple other tracks, including the instrumental "In Code," conjure a Zappa-esque feel with some finely crafted tuned percussion work.  All this leads to the epic title track, which wraps up everything in neat, if sprawling, package.

In the end, it's hard to pin down just what it is about Sanguine Hum that hits my musical sweet spot.  Their music is dense, layered, and complex but doesn't come off as "complicated" just for the sake of it.  In other words, the band doesn't scream "progressive rock," it's just as proggy as it wants to be.  On the other hand, it's generally melodic and tuneful, but with a dark edge to it that doesn't exactly leave you walking down the street whistling. Antinque Seeking Nuns had a Canterbury-ish sense of humor that's lacking, or at least tempered by serious melancholy, in Sanguine Hum.  Maybe that's it - that combination, leavened with a heavy dose of genuine Englishness, curdles into something I just can't resist.  It doesn't sound like anything else out there, that's for certain.

Regardless, The Weight of the World lives up to its ambitions and is, if not the very best album of the year, certainly one of them. So, no, it's not like the first time.  It's even better.

Details
-------------------
The Weight of the World, by Sanguine Hum
Released 2013

Tracks:
1. From The Ground Up (5:35)
2. System For Solution (8:02)
3. In Code (4:35)
4. Cognoscenti (3:57)
5. Day Of Release (5:51)
6. Phosphor (3:04)
7. The Weight Of The World, Parts 1 to 3 (14:51)

Players:
Matt Baber (keyboards, drum programming)
Joff Winks (guitar, vocals)
Brad Waissman (bass)
Andrew Booker (drums)

Changing the Labels Doesn't Change Reality

I'd like to think I'm above falling for click-bait headlines, but I guess I'm as susceptible to it as anyone else.  So, when I saw the subheadline on this piece at Reason - "Would a free society be a crime-free society?" - I just couldn't help myself.  Shame that the substance doesn't live up to the promise.

To be fair, Sheldon Richman says right off the bat that he's not Utopian and doesn't:

foresee a future of new human beings who consistently respect the rights of others.

Rather, he investigates the historical distinction between crimes - wrongs committed against and punished by the state - and torts, which are private causes of actions individuals bring against each other in order to be made whole again.  In simple terms, a murder is a crime and will result in the perpetrator being sent to prison, while medical malpractice is a tort, resulting in someone (an insurance carrier, most likely) making the victim whole via monetary compensation.

The history itself is interesting.  As Richman explains, tort once reigned above all.  It was only as English kings began to accrue more power (and, Richman argues, quest for more money) that more things became crimes.  Richman sees this development as something "[l]iberty-minded people should regret," although it happened centuries ago.  He argues, while stating that the reasons are "too obvious to need elaboration," that a justice system aimed solely at restitution is more preferable to what we've got now.

I can't say I buy that, possibly because I occasionally deal with clients who are ordered to pay restitution, in the rare case where there's an actual victim involved.  The sad fact is, for a lot of people, paying full restitution simply isn't an option.  Furthermore, you'll still need some kind of coercive agency with the power to force those who can pay to actually do so.

Aside from practical considerations, I'm not sure restitution as the goal of the system is theoretically feasible.  Most tort cases involve monetary damages that can fairly easily ascertained.  But how does one determine the proper amount of restitution for murder?  Or rape?  Or some kind of systematic problem like perjury?  It just doesn't lend itself well to those kinds of crimes.

In the end, all this is sort of pointless because Richman doesn't show how any revised system would eliminate crime itself, it would just change the labels.  There may be different ways to deal with the aftermath of somebody whapping me over the head with a crow bar or kidnapping somebody's child, but regardless of what you call the system those are still crimes as any modern person would call them.  Sadly, Richman had it right when he said that people aren't simply going to start behaving nicely anytime soon.

I'm sympathetic to what, I think, is Richman's underlying point - that the prevalence of victimless crimes is something that ought to be of concern to anybody who thinks "freedom" is a good idea.  As I said, the current criminal justice system is clogged with people charged with offenses that have no actual victim.  But swinging all the way to the other direction and thinking, just by switching a label, that we can eliminate victims is just silly.

On a side note, I find it ironic that a libertarian and/or anarchist would resort to dealing with a problem simply by changing the label on it.  That doesn't make the problem go away, just obscures it for a while.  It's a favorite tool of repressive governments everywhere.  As Babylon 5 once had a character explain when asked when all the problems on Earth - homelessness, crime, unemployment - were solved:

When we rewrote the dictionary.

In the end, it's a trick, and not even a very clever one.