Our Values In Action

Last spring, while writing about how we treat people who are released from prison, I wrote that "society owes a duty to anyone it locks in a cage."  That's equally true, perhaps doubly so, while that person is still locked in a cage.  It's a test we fail all too regularly.

Take this latest atrocity highlighted by Radley Balko.  An inmate in North Carolina named Michael Kerr, a veteran, died after several weeks in solitary confinement, due to behavioral issues brought on by untreated mental illness.  After guards found him unresponsive in his cell, they drove him for 2.5 hours to a prison hospital - bypassing eight ERs along the way.  He died en route.  The details of Kerr's life and crime are in the article and are heartbreaking.

But that's not really the point.  What I wanted to really highlight is how Balko concludes his article.  He mentions how treating inmates humanely is, paradoxically, most difficult for the people who have to do so on a daily basis - prison staff.  But we can hardly blame them alone:

look at our values. Americans not only accept violence and sexual assault in our prisons, but also a large part of the population considers it a given — it’s just another part of a convict’s punishment. We’re not just comfortable with prison rape, we often find it humorous (even SpongeBob once made a prison rape joke), or we revel in the thought of inflicting it on people we abhor, members of groups we consider the enemy, or stand-ins for groups of people we find distasteful. (It’s a common sentiment to wish prison rape upon political opponents, particularly those who have been accused or convicted of crimes.)

If those of us far removed from prisons don’t take the humanity of the incarcerated seriously, we shouldn’t be surprised to see the officials we ask to actually run the prisons engage in the sort of sadism and brutality we see in these stories.

Absolutely.

UPDATE: As if on cue, someone in the comments to this article about today's indictment handed down against coal baron Don Blankenship posted this:

Blankenship may deserve a lot of things, but if he winds up in prison, being raped isn't one of them.

Down the Memory Hole

In 1998, real estate belonging to Mario Costeja Lopez, in Spain, was seized by local authorities and auctioned off to pay debts he owed.  Notice of the auction went out in the local newspaper, and later on its web site.

Skip to this past summer, when a lawsuit filed by Lopez came to an end at the European Court of Justice (sort of a Supreme Court for Europe).  Staggeringly, the court partly agreed with Lopez's requests that the newspaper remove the notice from its archive and Google remove links to it from its search results.  The court didn't make the paper take the notice down, but did order Google to kill the links.  This is what's know as the "right to be forgotten."

As you might expect, Lopez's triumph has led to fairly disparate opinions on either side of the Atlantic:

Q: But this ruling goes completely against freedom of information - that anything that's public should be recorded and kept.

A: That's certainly how lots of American commentators have seen it. There's a definite cultural split in peoples' attitudes to this ruling. Journalism professor and commentator Jeff Jarvis (of City University, New York) called it 'a blow against free speech' - but was then chided by Gerd Leonhard, from Basel in Switzerland: ''Everything that happens must be known' - is that what you are proposing? I think EU decision on Google is a suitable first step.'

It's worth noting here that the European conception of what "privacy" means is fundamentally different than it is in the United States.  We tend to think of privacy as dealing with limits on the government and generally enforcing what Louis Brandeis called the "right to be let alone."  Europeans, on the other hand, put much more importance on being able to conceal parts of your own past from others - to emphasize being able to control your own personal narrative (so to speak).

The problem with that, of course, is that you're most likely to want to keep from view the very kind of information you want others not to know.  At the extreme, you probably don't want people to know about a prior conviction for a crime or maybe even a prior marriage.  More mundane worries may include things like poor job performance, embarrassing Facebook status/pictures, or, in cases like Lopez, financial insolvency.  All of that, of course, may be relevant information to others.

Regardless of the merits of either approach, the right to be forgotten is leading to some absurd requests.  Like the one recently received by The Washington Post (via) from a pianist named Dejan Lazic.

Lazic, from Croatia, gave a concert in Washington in 2010 at which the Post's music critic was not particularly impressed.  It referred to a prior work of Lazic's as "attention-getting, large scale and a little empty" and concluded that his recital "was unfortunately more of the same."  It wasn't a pan - Lazic was described as "sensitive" and "profoundly gifted" - but it was, at times, pretty barbed (in Lazic's hands a "scherzo became cartoon-like").

So, it's a less than glowing review.  But that's the price you pay for being an artist, right?  People get to say whether they like your stuff or not, or, more broadly, whether you're "good" and you don't get a lot of say on the matter.  Writers, I know, are encouraged to never engage with critics - it's a battle you just can't win.  Unless the review gets something factually wrong, you shrug it off and move on.

Not Lazic.  Armed with the "right to be forgotten," he has asked the Post to take the review down.  As he explains:

'To wish for such an article to be removed from the internet has absolutely nothing to do with censorship or with closing down our access to information,' Lazic explained in a follow-up e-mail to The Post. Instead, he argued, it has to do with control of one’s personal image — control of, as he puts it, 'the truth.'

The Post is not backing down, partly because even the right recognized in Europe doesn't extend to the actual newspaper stories, only the links.  But it also recognizes that there are broader issues, more meta ones, at stake.  Like which version of the "truth" gets to be in the permanent record:

Whose truth is right: the composer’s or the critic’s? And more critically, who gets to decide?

It’s a question that goes far beyond law or ethics, frankly — it’s also baldly metaphysical, a struggle with the very concept of reality and its determinants. Lazic (and to some extent, the European court) seem to believe that the individual has the power to determine what is true about himself, as mediated by the search engines that process his complaints.

Growing up with the First Amendment, I would say that the decision about where the truth lies belongs to neither the performer or the critic, but to everyone else.  I do think I have a right to know that Lazic is, in the opinion of some, a bombastic player who overperforms.  Heck, I may like such things!  Why should I only have the word of the performer to go on before I lay out cash for a ticket or a CD?  That would reduce us to a world of very special people who are brilliant at what they do.  Even as a writer, I wouldn't want that.

There is a considerable irony in all this.  Were it not for his successful court case, I would have never heard of Mario Costeja Lopez or his financial problems.  The same is true for Dejan Lazic and his penchant for pianistic bombast.  More perfect examples of the Streisand Effect would be hard to find.  Which gives me some hope that the right to be forgotten will, someday, make its own way down the memory hole.

How to Get Away With Anything

The breakout hit of the new TV season, to the extent there is such a thing anymore, is How To Get Away With Murder, the latest product of the Shonda Rhimes ratings factory.  It's about a law prof who's also a practicing defense attorney (not completely unheard of), who uses four students every semester as part of her defense team (very much unheard of).  We've already learned that, in addition to helping win murder cases, they're deeply involved in one.  It's fun, in a silly, don't-think-too-much-about-it kind of way.

However, as a friend of mine pointed out on Facebook the night of the premiere, it is deeply deeply unrealistic.  As he noted, there's a handful of glaring ethical failures in just the first episode, so anybody who thought the show's title held the promise of accurate advice, think again.  Come to think of it, if your legal knowledge is gleaned solely from primetime TV, remember the old MST3K mantra: it's only just a show, you should really just relax.

Having said all that, last week's episode entered my playground - the appellate court - and completely shit all over it.  Trust me, neither the Pennsylvania Supreme Court nor any other appeals court is ever going have parties calling witnesses, much less engaging in hyperbolic cross examinations in their courtroom.  Oh, and the guy whose fate their arguing over, the defendant?  Nowhere near the place.  Prisoners don't get transported for oral arguments.  It would have been easy enough to get all this right (move the hearing to a trial court), so one wonders why they don't.

Now . . . where was I . . .

Primary among the ethical slips we've seen so far is how some of the students lie about who they are in schemes to get information to help win their client's freedom.  This might seem bold, or even clever, but it's something you simply cannot do as a defense lawyer.  That's a good thing, but it results in a odd imbalance in the criminal justice systems.

You see, cops can and will lie to you.  This recent Christian Science Monitor article sums up the situation well:

Bluffing is a common – and legal – tool in police interrogation rooms, and the art of artifice in obtaining confessions is a standard part of police training. The parameters for what police can lie about are broad, and lies can range from claiming to have evidence that does not exist to fibbing that a witness was at the scene.

Still, per US Supreme Court rulings, confessions must also be 'voluntary,' introducing a possible point of contention between an officer’s right to lie to a suspect and his or her obligation to serve justice.

'The question is, at what point does the amount of lying make the confession involuntary?' Professor Shanks says. 'There’s just no bright line on it.'

Defense attorneys, and those employed by them (like, say, young eager law students) don't have that luxury.  Rule 4 of the WV Rules of Professional Conduct (which are similar enough to others in the country to serve as an example), is labelled "Transactions With Persons Other Than Clients."  It says:

Rule 4.1.  Truthfulness in statements to others.
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; or
(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

So, where cops can lie about who they are and what information they have, defense attorneys and their investigators can't.  It's a simple as that.

Which leads to cops being involved with all kinds of shenanigans that would get a defense lawyer disbarred, if not locked up.  Like this latest outrage (via) in the War on (Some People's) Drugs:

The Justice Department is claiming, in a little-noticed court filing, that a federal agent had the right to impersonate a young woman online by creating a Facebook page in her name without her knowledge. Government lawyers also are defending the agent’s right to scour the woman’s seized cell phone and to post photographs — including racy pictures of her and even one of her young son and niece — to the phony social media account, which the agent was using to communicate with suspected criminals.

The woman had been arrested and ultimately pleaded guilty to a minor drug charge, for which she received probation.  Her phone was seized as part of her arrest.  She was never told about the fake profile using her information (she learned about it from a friend).

Why would the DEA think they could do such a thing?

The experts also agreed that the case raises novel legal and ethical questions. There is a long tradition of deceptive practices by police that are legal, they noted. For example, officers assume a false identity to go undercover. 'What’s different here,' said Ryan Calo, a professor at the University of Washington School of Law, is that the agent assumed the identity of a real person without her explicit consent.

'The technologies we have now are enabling all sorts of new uses,' said Neil Richards, a professor at the Washington University School of Law. 'There are a whole bunch of new things that are possible, and we don’t have rules for them yet.'

I'd beg to differ only in that the rules are already there and the cops (which includes the DEA) knows they don't need to follow them.  The slow destruction of the Fourth Amendment, combined with the desire to let cops do absolutely anything in the name of the War on (Some People's) Drugs leads precisely to this kind of behavior.

So, while ABC may want to show us how to get away with murder, the way to get away with most anything else is pretty clear - be a cop going after drugs.

How Not to Win Friends and Influence Voters

Let me start this screed by saying I'm a registered Democrat.  In a two-party world, the Dems come closer than the Republicans to being "right" on issues that matter most to me.  Needless to say, neither party does swimmingly well, however.

Which is why I'm particularly miffed by this piece of misguided get-out-the-vote strategy that's shown up in West Virginia (in this particular example, Cabell County, but it's happening around the country:

Here's the text:

The West Virginia Democratic Party monitors the level of voting in your neighborhood.  The Cabell County Clerk's Office official voting records are public information, and show whether you cast a ballot, but not who you voted for.  We will be reviewing these records after the election to determine whether you joined other citizens who voted in 2014.

[Info about voting times, registering, and phone number to call for help omitted]

Attached is our official "I Voted" sticker.  We encourage you to wear this after you go to the polls.  We only send these to the individuals we believe are most likely to vote.  Please don't disappoint us.

Sincerely,

Larry Puccio
Chair of the West Virginia Democratic Party

This strikes me as spectacularly wrongheaded, for a couple of reasons.

First, is the a more Orwellian image than someone pouring through records to see whether you voted or not?  Why not just include a page that looks like this:

It would get the point across just as well. 

Besides, hasn't anybody in the DNC been paying attention to the public backlash about the NSA, TSA, and various national data gathering schemes?  Obama may not have launched them, but he's defended them vigorously.  In an election where Democrats are doing anything they can to distance themselves from Obama, sending out a "he knows when you are voting, he knows when you are not" letter is beyond tone deaf.

Second, the tone of this letter is very much, "you're a Democrat, you know who to vote for," which, I suppose, is a basic get-out-the-vote thing.  But it assumes that any Democratic candidate is owed my vote, which is not the case.  I'm not one of those "if you don't vote, you forfeit your right to complain" people.  I try to only vote for people I actually like.  The current slate of WV Dems are, quite frankly, not very appealing.  No amount of threatened shaming is going to change that.

Give us better candidates, Democrats.  Then you wouldn't have such a hard time getting any of enthused to go vote for them.

Friday Review: The Monuments Men

The story of the Monuments Men - a group of about 350 Allied soldiers who were tasked with safeguarding and liberating looted art during World War II - is fascinating and a part of the war that's frequently been overlooked.  That, thankfully, changed last year with the George Clooney flick, even though it didn't turn out to be the awards season champ it seemed designed to be.  The movie a fictionalized account of the story laid in the book by Robert Edsel.  For such an interesting story, it's a shame it doesn't get a better telling.

Edsel makes an admission right at the beginning of the book that doesn't bode well:

I have taken the liberty of creating dialogue for continuity, but in no instance does it concern matters of substance and in all cases it is based on extensive documentation.

I admire them for being up front about this, but it immediately calls into question what comes after.  More problematic, however, is that if the dialogue doesn't concern "matters of substance" then why include it at all?  In the end, the dialog doesn't add much drama or tension to the book, which is otherwise sorely lacking.  It's both an odd choice and a missed opportunity.

Perhaps one reason I'm particularly down on the dialogue is that in the Audible version, the reader tries to do most of them in accents and fails miserably.  I've rarely cringed while listening to an audiobook, but did so time after time with this one.  It was particularly jarring because early on when all the speakers were Americans, there didn't seem to be any accents at all (this changed, unfortunately).  The cliched French and German that came later, therefore, really grated on the ears.

Beyond that, part of the problem with the book is that the Monuments Men tend to blend together until it's hard to remember who's who.  They have very similar backgrounds and face the same kind of obstacles so that none of them really stand out.  In fact, the biggest help I had in keeping them separate in my head was to picture their counterparts in the movie (fictional characters based on actual people).

In fact, the two most memorable people in the book (aside from Hitler, Eisenhower, etc.) are ones that don't quite fit the "Monuments Men" label.  One was Rose Valland, a French woman who spent the war in the midst of Nazi Paris keeping track of plundered art, then became the key figure in tracking it down and recapturing it.  She, obviously, was not a man (nor American, which is the primary focus of the book and film).

The other is Harry Ettlinger, who was a man, but unlike the more sophisticated, educated, and high class art types who became Monuments Men, was just a private who wound up doing his part.  It's his back story that makes that part compelling.  Ettlinger was a Jew, born in Karlshrue and forced to flee before the war.  He was, we are told, the last person to have a bat mitzvah in that city's synagogue before it was destroyed.  That he returned to Germany an American GI, helping right the cultural wrong perpetrated by the Nazis (including a fulfilling personal mission) is the best part of the book.

The other problem is that, once things get going, the activities of the Monuments Men are pretty redundant.  During the initial periods after Allied landings in Italy and France, they are tasked with keeping valuable buildings and works from being carelessly destroyed.  Important, no doubt, but not that thrilling once we're past the initial instance.  Things pick up a bit once they're on the trial of looted art, but those trails mostly lead to a series of mines in Germany and Austria where the Germans stashed the loot.  The mere fact that untold treasures are stuffed down mines, much less the challenges of getting them out, are interesting but, again, become a bit redundant.

In the middle of this section comes an interesting, if not altogether relevant, diversion.  The most impressive of the salt-mine stashes was found in the Austrian town of Altaussee.  The Nazi governor of the area planned to blow the whole mine up, destroying all the looted artwork rather than let it fall into Allied hands (all based on an order from Hitler that may, or may not, have been rescinded and/or modified).  A group of locals managed to trick him into delaying the plan long enough for the Allies to arrive.  It's a neat story and, from Edsel's telling, one that's been untold in its true depth, for years.  However, it doesn't really have much to do with the Monuments Men, as they arrived after the drama was done.

But most of that is nitpicking.  What Edsel has done is to celebrate not just a group of people who did important (and often overlooked) work.  He notes just how unusual this focus on preserving and repatriating art was and what a worthy endeavor it was.  Armies just didn't do such things.

Nor do they much anymore.  Edsel wonders why we haven't had similar operations (at least in terms of scope) in future wars.  Sadly, I think it's pretty easy to figure out.  Edsel frequently refers to the Monuments Men's goal as no less than the salvation, not just of particular cultural artifacts, but of "our" culture in general.  He even goes so far as to call the Altaussee plot one of the great turning points of civilization.  So why, then, were there no Monuments Men units in Iraq or Vietnam or Korea?

Simple - those places aren't part of "our" culture.  The Nazis, after all, were still Europeans and thus part of a long heritage that extended to the United States.  Not so much some others. It's not for nothing that the Monuments Men effort was confined to Europe, with no mention of the Pacific theater.  Nor should it be lost that the genesis of the group that became the Monuments Men was concerns about protecting American art in case of invasion.  We care most about ourselves and those who remind us of ourselves (Bender was onto something), whether that is how it should be or not.

Edsel himself has an interesting story (according to Wikipedia).  He grew up in Texas and made his money in (what else) oil and gas drilling.  He sold out to Union Pacific in the 1990s and moved to Europe.  It was there he first became interested in the subject of the Nazis and art during the war.  He's done yeoman work to bring this issue to national attention and clearly cares deeply about it.  None of the criticisms of his writing should minimize that.

The Details
------------------------
The Monuments Men: Allied Heroes, Nazi Thieves, and the Greatest Treasure Hunt in History
by Robert M. Edsel, with Bret Witter
Published 2009

If You're Worried About Rosebud, You're Missing the Point

It's his sled. It was his sled from when he was a kid. There, I just saved you two long boobless hours. 

- Peter Griffin, spoiling Citizen Kane

Saw Gone Girl last weekend.  It's really good, particularly if you like the kind of movie that takes place in an air of dread that's perfectly summoned by David Fincher (with able assists from Trent Reznor and Atticus Ross).  I say that even knowing the big twist of the film going into it.  Not because I had read the book on which it's based, but because my wife blurted it out during a TV commercial. She didn't know I wanted to see it.

Point is, she didn't really "spoil" the movie for me, in the true sense of the word.  That's because the flick is good enough that it doesn't rise or fall on the big "twist" (which, for what it's worth, happens about halfway through - this isn't The Sixth Sense we're talking about).  In my opinion, any movie/book/TV show that rises and falls on that twist isn't really worth watching.

What's more, people seem to enjoy things more once they know how it turns out.  At least that's what some research says.

Back in 2011, as The Atlantic reports, a study was published that sounds pretty neat:

Scientists asked 900 college students from the University of California, San Diego, to read mysteries and other short stories by writers like John Updike, Roald Dahl, Agatha Christie, and Raymond Carver. Each student got three stories, some with "spoiler paragraphs" revealing the twist, and some without any spoilers. Finally, the students rated their stories on a 10-point scale..

The results?  Readers preferred the spoiled stories.  But why would we want to know how it ends ahead of time?

One theory is that our anticipation of surprises actually takes away from our appreciation for the 99 percent of the movie that isn't a monster twist. 'The second viewing is always more satisfying than the first,' Sternbergh said, 'because you notice all the things you missed while you were busy waiting for the twist.' Psychologists have observed that when we consume movies and songs for a second (or third, or hundredth time), the stories become easier to process, and we associate this ease of processing with aesthetic pleasure.

Think about this for a second.  Most of us have some piece of culture that we go back to again and again.  I know that the big escape at the end of Brazil takes place all inside Sam's head, but I still watch it.  I know that Arthur and Ford wind up on a primitive Earth populated by a bunch of idiots expelled from a better planet, but I'll still reconsume Hitchiker's Guide . . . again (in its many forms).  And I know Tommy goes back to being blind, deaf, and dumb at the end, but that doesn't make "Pinball Wizard" kick any less ass.

Of course, there might be other reasons why spoilers really aren't, including the uncomfortable recognition that we really like predictability more than we let on.  But, in this area at least, I'd like to not be completely cynical* and think that, deep down, we realize that works built on the big twist only are, as someone else put it in the Atlantic piece:

like artistic flash paper: It excites for a moment but offers little lasting wonder.

After all, we want to be better than Peter Griffin.  Right?

* I know, you're shocked, right?  How's that for a twist!

On Criticism of Islam

So, a few weeks ago, Bill Maher said this:

That stirred up a bit of shit, but the real deal came the next week, when Maher brought up the topic again, this time with Sam Harris and Ben Affleck in the free fire zone:

I like Bill, but I think he's on the wrong side of thing here.  Or, if he isn't, he's not being sufficiently specific in his criticism to convince me.

For one thing, he never actually names the "liberals" he's calling out or provides examples of the kinds of things to which he objects.  Without that, it's hard to tell whether he's right or wrong.  Reading between the lines, he might be talking about people who argue either that (1) it's important to distinguish radical Muslims from those more moderate and liberal ones and who stress the need to not paint an entire religion with a broad brush or (2) religion isn't really the root cause, or is one of many contributing causes, to the violence in Iraq and elsewhere.

I'm leaning toward the first, because Bill is fond of making broad sweeping comments, in this and all other areas.  Also, it's bolstered by something Harris said during the second segment:

There are hundreds of millions of Muslims who are nominal Muslims, who don't take the faith seriously, who don't want to kill apostates, who are horrified by ISIS.

This is an argument I see pop up with some regularity in the atheist blogosphere that really makes no sense.  I've hinted before that, as an atheist, I really don't have a say in who gets to claim the label of Muslim, Christian, Hindu or whatever.  It's enough to note that radically different people with apparently irreconcilable positions both claim the title and leave them to sort it out.  Thus, it comes off as awfully arrogant to claim that the non-lethal members of a religion are so in name only and really don't take their "faith seriously."

It's also stupefyingly bad politics.  Although there are some atheists who are intent on turning other people into atheists, most of us (I hope) are more interested in ensuring that the government stays a secular institution and that no religions dictates get enshrined into law.  In that quest we can count on a large number of Christians, Jews, and other religious folks who value church/state separation, for whatever reason.  It's beyond counterproductive to tell them they aren't "really" religious because they've signed on to a moderate form of a particular faith that lets them live in peace with their neighbors.  After all, that should be the goal.

Leading the push back against Bill and Sam (or coming to Affleck's rescue, if you like) is author Reza Aslan.  In a New York Times piece he makes an interesting point:

What both the believers and the critics often miss is that religion is often far more a matter of identity than it is a matter of beliefs and practices. The phrase 'I am a Muslim,' 'I am a Christian,' 'I am a Jew' and the like is, often, not so much a description of what a person believes or what rituals he or she follows, as a simple statement of identity, of how the speaker views her or his place in the world.

As a form of identity, religion is inextricable from all the other factors that make up a person’s self-understanding, like culture, ethnicity, nationality, gender and sexual orientation. What a member of a suburban megachurch in Texas calls Christianity may be radically different from what an impoverished coffee picker in the hills of Guatemala calls Christianity. The cultural practices of a Saudi Muslim, when it comes to the role of women in society, are largely irrelevant to a Muslim in a more secular society like Turkey or Indonesia. The differences between Tibetan Buddhists living in exile in India and militant Buddhist monks persecuting the Muslim minority known as the Rohingya, in neighboring Myanmar, has everything to do with the political cultures of those countries and almost nothing to do with Buddhism itself.

Azlan also argues that "scripture is meaningless without interpretation," which I think is his way of saying that no text, regardless of how explicit it appears, stands on its own.  Everything has to be interpreted, which says as much about the person doing the interpreting as it does the text itself.  Don't believe me?  Read courts taking opposite positions on the same statutory or Constitutional language - it happens all the time.

Which is not to say that Islam itself is off limits from criticism, nor are those who act in its name when they do horrific things.  Fareed Zakaria sums up the situation pretty well:

Islam has a problem today. The places that have trouble accommodating themselves to the modern world are disproportionately Muslim.

In 2013, of the top 10 groups that perpetrated terrorist attacks, seven were Muslim. Of the top 10 countries where terrorist attacks took place, seven were Muslim-majority. The Pew Research Center rates countries on the level of restrictions that governments impose on the free exercise of religion. Of the 24 most restrictive countries, 19 are Muslim-majority. Of the 21 countries that have laws against apostasy, all have Muslim majorities.

And that was before ISIS wrote proudly in its Enlglish language magazine (there is such a thing!) of its enslavement of Yazidis in Iraq.  Yet Zakaria still concludes that Bill and Sam are guilty of being too broad when talking about Islam.

If Bill's problem with liberals and Islam is the second one I laid out above - that they might tend to look deeper than just a "religion=bad" analysis, he's on even shakier ground.  It's easy to point to religious conflicts through history, ones where one faith battled another.  But it's hard to find ones that are really, deep down, about religion itself.

To use a non-Islam example, think of The Troubles that racked Ireland for so many decades.  On the surface, it was a sectarian struggle, between Catholics and Protestants.  Dig deeper, however, and it turns out that those were convenient labels for groups that were actually split between Irish republicans and British royalists.  They weren't fighting over the finer points of the Reformation or Transubstantiation, they were fighting about political control of Ireland.  As Azlan wrote, being "Catholic" or "Protestant" in the context of that struggle was more about a form of identity, not theological rigor.

Hell, even Richard Dawkins is softening a little bit as to whether ISIS and the like are really about religion or not.  If the Grand Poo-Bah Supreme Potentate of Atheism (tm) has come to that conclusion, surely Bill can't complain!

There's nothing wrong with criticism, either of a person or an idea.  However, broad criticism of entire groups of people does very little good in the end.  It doesn't help you understand the nuances of a situation or the deeper currents that may be driving it.  It doesn't help draw those to your cause who may think you're an arrogant dipwad for telling them what they believe.  It might feel good to blow off a little steam and feel superior for a while, but that doesn't get you very far.

We're Fooling Ourselves

3rDegree's 2012 album The Long Division is a political album.  In the sense that it's about our modern political world, not that it was trying get people to vote one way or the other.  The verdict of the album's half dozen related tracks is that the system is undeniably fucked up, partly because we, as a nation, have lost the ability to talk with people on the other side of an issue.  The lead off track lays it out well:

But this isn't just a snarky observation by a bunch of musical types from New Jersey (mostly) - it's backed up by statistics.  In a post over at The Volokh Conspiracy, Ilya Somin (quoting a Cass Sunstein op ed) lays out some numbers about the rise of "partyism" in the United States.  They're kind of chilling:

In 1960, 5 percent of Republicans and 4 percent of Democrats said that they would feel 'displeased' if their son or daughter married outside their political party. By 2010, those numbers had reached 49 percent and 33 percent. Republicans have been found to like Democrats less than they like people on welfare or gays and lesbians. Democrats dislike Republicans more than they dislike big business.

As Somin then points out:

Increasingly, we assume that supporters of the rival political party are not just misguided about political issues, but also untrustworthy or malevolent people in general.

Although it's sometimes hard to admit, democracy (and life, more generally) is about compromise.  To quote another rock lyric, "you can't always get what you want."  You have to be able to give a little to get a little.  But that's damned difficult when the person on the other side of the aisle isn't just wrong, but is (in Somin's words) "evil, selfish, or stupid."  Compromise with evil is immoral and compromise with stupid is impossible.  So we all throw up our hands and go have a press conference while nothing gets done.  It's the modern equivalent of fiddling while Rome burns.

So what to do about it?  Do we chastise talking heads and Internet commenters who jump to the worst possible conclusions about their political rivals?  We should, but I'm not sure that's going to get very far.  What I think it's going to take to back the country down from this precipice is the very thing 49 percent of Republicans and 33 percent of Democrats fear - ideological mixing.

Because, here's the thing.  When it comes to most people who hold opinions different from you, they're actually not monsters or morons, evil or stupid.  They're people, with all the flaws that entails, who, ultimately, probably want the same broad things you do (a good life, safe neighborhoods, educated kids, etc.).  They may be ignorant about a particular issue, but we're all ignorant about something (lots of somethings, more likely).  When we forget that, we slide back into ideological tribalism.

I'm speaking from some experience here.  I'm the outlier among my brothers (and sisters in law, for that matter) in being a liberal atheist.  My older brothers have both become more conservative and religious as they've grown up, had kids, and the like.  When it comes to many matters of politics or theology, I think they're wrong.  But I know, because I've known them all my life, that they're not "evil, selfish, or stupid."  We see the world differently, but that's all right.  It makes it a lot harder to demonize the opposition when you know them as real people, not just soldiers for Team Red or Team Blue.

That's not to say all we need is to get together, sing "Kumbayya," and everything will work out.  Like I said, folks on either side of a political dispute are just people.  As there are (generally) good, thoughtful people out there, so to are there assholes, opportunists, the short sighted, and, yes, the evil.  But they're a smaller proportion of the population than we think in our worst "our side uber alles" flag waving moments.

Through my forty years, it's just been a fact that (at the national level anyway) one side doesn't get what it wants all the time.  Even during all those years the Democrats controlled Congress they had to deal with fierce GOP minorities or a GOP President.  Neither side will ever triumph over the other completely.  None of this is to suggest that partisans on one side or the other should refrain from calling the other folks out for being wrong. But there's a world of difference between calling someone (or, more correctly, his or her idea/proposal/argument) "wrong" and calling them dipshits, evil doers, or (to pull one example I saw today) a "weasel."

If we don't recognize that and try to at least make a good faith attempt to understand, rather than caricaturize, the other side, then we really are fooling ourselves if we think the country is ever going to get better.

Ignorance Is No Excuse . . . Unless It Is

The old maxim goes that "ignorance of the law is no excuse."  That's certainly true when it comes to us plebs, but what about the cops?  Or does "almost" count for law enforcement, the way it does for horseshoes, hand grenades, and atomic weapons?  The Supreme Court, in a case that kicks off the 2014 term Monday, is about to tell us.

Nicholas Heien was driving in North Carolina when he got pulled over for having a busted tail light.  A subsequent search uncovered drugs, which lead to Heien being prosecuted for, among other things, the busted taillight.  But the North Carolina courts determined that state law only required one working tail light, regardless of how many lights the car was supposed to have.  One busted one, therefore, was not a crime, so long as the others were working.

So much for Heien's driving charge. But what about the drugs?  Was the stop good, now that we know it was based on an incorrect interpretation of the law?  The state supreme court decided almost was good enough - so long as the cop's mistake of law was "reasonable," the stop doesn't violate the Fourth Amendment.  Because state law on tail lights was uncertain, the cop's stop of Heien in this case was reasonable.

Orin Kerr lays out the issues and why he thinks the defense should prevail. I agree that they should, but that doesn't mean much in modern Fourth Amendment law.  That being said, this case does have two interesting angles that might lead it to buck the trend.

First, a lot of the modern cases stripping the Fourth Amendment deal not with the amendment itself but with the exclusionary rule - the rule that says that evidence discovered during an unconstitutional search can't be used at trial.  The Supreme Court (and the lesser courts) has, for the past few years, expanded the once-limited "good faith" exception to the rule, giving cops more room to make mistakes and not pay a price for it.  Heien can't be viewed through that lens because North Carolina, in its state constitution, explicitly rejected the good faith exception.  So the Supremes will have to deal with the issue head on.

Second, and hanging over the whole thing, is the goose/gander angle I mentioned above.  As Kerr explains:

it seems only fair to apply the same rule to the police that applies to regular citizens. Mistake of law is a classic subject taught in first-year Criminal Law. Students read cases like People v. Marrero, 69 N.Y.2d 382, 507 N.E.2d 1068 (1987), in which a federal prison guard was convicted of possessing a weapon in violation of a state law that had an express exception for 'corrections officers . . . of any penal institution.' After Marrero was charged, a divided lower court ruled that 'any penal institution' only meant a state penal institution, which to his shock excluded Marrero. New York’s high court then ruled that Marrero could not assert a mistake of law defense in light of this ruling. Ignorance of the law was no excuse, even if 'the law' was handed down in a surprising way only after the defendant’s arrest. This was a harsh result for citizen Marrero, perhaps, but it was needed to give individuals an incentive to learn the law.

That’s the usual rule in criminal law, and I’m not sure why the same thinking shouldn’t apply in criminal procedure.

I wouldn't expect a generic Fourth Amendment case to really catch the public's attention.  We've let it atrophy so much over the past few decades that I wouldn't blame most folks if they thought it had just vanished into thin air.  But I'd expect there to be an uproar if the Supreme's give the cops more leeway when it comes to knowing the law than they do regular citizens.  If the fear of that is what it takes for them to get this one right, so be it.

UPDATE: Scott over at Simple Justice has a more pessimistic take.  Having read about half of the oral argument transcript, he might be right to worry.

Thoughts on the Prog 100

Back in my college days, when I was young (*sigh*), to find discussion about progressive rock you had to dig deep into the Internet.  These were the days before Facebook, before Youtube, and even comprehensive websites like ProgArchives.  The best you could do, usually, was a Usenet newsgroup - all text, all the time!  I remember downloading 15-second samples (over dial up!) of the first Spock's Beard album, for crying out loud!

Which is all a way of saying that I'm still stunned that I can find a regularly published, glossy magazine devoted to prog on newsstands every month.  The appropriately named Prog (from the folks at Classic Rock magazine) is very British and, thus, very a month behind when it arrives in the states.  Still, it's great to be able to pick it up and dive deep into interviews, reviews, and album features every month.  It's a sign of how far things have come in the past twenty years.

 

In honor of its 50th issue, Prog conducted a reader poll to sort out the top 100 prog albums of all time.  The results ran in the August issue and, naturally, prompted discussion in various parts of the prog universe.  Who am I not to chime in?

It's worth keeping in mind that this was a reader poll, although several noted musicians chime in with their top albums as well.  As a result, it reflects the tastes of the readership of a magazine that tends to stick to the more classically "prog" end of the spectrum.  It's pointless to complain that the results look like a popularity contest - it is a popularity contest.  Not that there's anything wrong with that, of course, and I'm hardly one to complain about the collective choices - I own 77.5 of the 100.*

That focus is partly why the list had a lot of choices from prog's modern era, from bands like Porcupine Tree, Opeth, and Spock's Beard.  The mods even cracked the top 10, with Steven Wilson hitting the ninth spot with The Raven That Refused to Sing (and Other Stories).  On the one hand, I think that's great - it speaks to the vitality of modern prog.  On the other hand, it's hard to imagine that there aren't a lot of older albums that were overlooked that should have taken those spots.

As for the overlooked - where do we start?  How about with the really avant garde, which is almost completely neglected.  Aside from Can's Tago Mago (#98) and Henry Cow's Legend (which current King Crimson front man Jakko Jakszyk singles out as his number one), there's nothing of the more adventurous and, dare I say, challenging side of prog.  No Magma, no Univers Zero, no Present, no Krautrock (Can aside).  That's a pretty big hole, given that the entire point of prog is to push boundaries.

Another odd gap in proceedings involves the Canterbury scene, which has some of the most interesting and beloved artists in prog.  Caravan and Robert Wyatt each get a mention, but there's no Soft Machine, no Hatfield and the North, and no Steve Hillage or Gong.  At the very least, National Health's Of Queues and Cures should have made an appearance.  It would be in my top ten without doubt, maybe battling for the top spot.

The final blind spot that really sticks out for me is that, for the most part, this is an English (and related nations) list.  There's not a single album on the list with lyrics in a non-English language, which overlooks the fertile prog land of Italy completely.  Any top 100 list that lacks PFM, Banco, Le Orme and others is questionable.  Granted, it's a British magazine, but there's still no reason, in 2014, to not embrace the wide world of prog in all its multinational wonder.

That being said, if you knew nothing about prog and stumbled upon this list, there are worse places to start learning about the genre.  Just remember, that there's much more to the world out there, to the delight of your ears and the distress of your wallet!

* Big Big Train's English Electric was originally released in two parts, but it appears on the list as one volume.  I have the first part, but not the second.

Eric Cartman Pens an Op-Ed

Since the killing of Michael Brown by a police officer in Ferguson, Missouri a couple of weeks ago, a lot of words have been written.  I can't claim to have read them all, but I can say without hesitation that this piece in the Washington Post has to be one of the most outrageous.  Strangely, it has nothing to do with the specific facts of the Brown shooting, but it says an awful lot about how the police view the world around them and the people who live there.

Sunil Dutta is now a professor of "homeland security" at a for-profit university, but before that he spent 17 years as an LAPD officer.  Last week, Dutta wrote a column entitled:

I’m a cop. If you don’t want to get hurt, don’t challenge me.

Provocative, yes?  However, if you know anything about journalism you know that, quite often, the person who writes the article doesn't write the headline and the headline is crafted to be sensational and generate page views.  Hell, some places like Slate are so bad about it that the percentage of time the headline matches the article contents probably hovers around the Mendoza Line.  So, maybe, give Dutta the benefit of the doubt and assume he has a more nuanced point to make.

Not so much:

Even though it might sound harsh and impolitic, here is the bottom line: if you don’t want to get shot, tased, pepper-sprayed, struck with a baton or thrown to the ground, just do what I tell you. Don’t argue with me, don’t call me names, don’t tell me that I can’t stop you, don’t say I’m a racist pig, don’t threaten that you’ll sue me and take away my badge. Don’t scream at me that you pay my salary, and don’t even think of aggressively walking towards me. Most field stops are complete in minutes. How difficult is it to cooperate for that long?

In other words:

To be fair, Dutta "side[s] with the ACLU" and argues that all officers should wear body cameras and all police cars should have a camera, too (although, as Radley Balko points out, those are hardly a panacea).  And he writes this:

And you don’t have to submit to an illegal stop or search. You can refuse consent to search your car or home if there’s no warrant (though a pat-down is still allowed if there is cause for suspicion). Always ask the officer whether you are under detention or are free to leave. Unless the officer has a legal basis to stop and search you, he or she must let you go. Finally, cops are legally prohibited from using excessive force: The moment a suspect submits and stops resisting, the officers must cease use of force.

Emphasis very much mine.  This, while nice in theory, directly contradicts the "respect my authoritah" mantra he relies on earlier.  If a cop says he's going to stop me and I don't think he has the right to do so, what do you think will happen if I don't "submit" to it?  We're talking about a relationship with a serious imbalance of power between the two people.  The officer has the gun, after all, and, as we've seen, generous legal cover should he or she use it.  I, on the other hand, am likely to at least wind up arrested for something vague like "disorderly conduct," of not worse.

Ken at Popehat is right.  Dutta's attitude, and the fact that we generally accept it without much objection, is "servile and grotesque."  If anything good comes out of this whole mess, maybe it will be that society starts to rethink the hands off attitude we have toward the way the police do their job.

Second Thoughts From An Unlikely Source

In 1989, 11-year-old Jacob Wetterling was snatched off the street by a stranger, the paradigmatic example of the kind of abduction that gives parents nightmares.  He was never found and his abductor never captured.

All that prompted Jacob's mother, Patty, to become involved with the issue of sex offender registries.  At the time, a few states had registries, but most did not.  Patty's efforts paid off in 1994, when Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, the first comprehensive national sex offender scheme.

In the years since, state registries have exploded and Congress has repeatedly enacted new laws that expand the nature of the registries and provide harsher punishments for offenders who don't follow the registration scheme.  Now more that 750,000 people are on sex offender lists in the United States.  If it works, great, but what if it doesn't?

It's not surprising that people in my line of work would argue that sex offender registries are overbroad, prevent ex-cons from being able to reintegrate back into society, and generally constitute extensive punishment beyond their prison terms.  What is surprising is that Patty Wetterling is starting to have second thoughts, too:

These registries were a well-intentioned tool to help law enforcement find children more quickly,' she told us. 'But the world has changed since then.' What’s changed, Wetterling says, is what science can tell us about the nature of sex offenders.

What the science says is that, contrary to popular myth, sex offenders are not egregious recidivists.  In fact, they commit new crimes at a lower rate than burglars, fraudsters, and (naturally) drug offenders.  In addition, we know now that the overwhelming number of victims of sexual abuse are victimized by people close to them - family, friends, or community figures.  Jacob's kidnapping out of the blue is such a terror precisely because it is so rare.

Fear has played an important role in getting us where we are now:

Wetterling remembers watching this spiral of fear after Jacob’s disappearance. 'The fear was real. It was devastating,' she said. 'People became absolutely terrified. There were people in my community who wouldn’t let their children bike anymore or play in the park.' Twenty years on, she has come to see this reaction as 'not information-based.' And two decades after she succeeded in persuading Congress to pass Jacob’s Law, she’s now asking people to take a second look to see whether laws like the one named for her son are doing more harm than good and should be curbed.

Jeralyn at TalkLeft has pointed out before that laws named after people are generally a bad idea:

Let us not enact laws out of grief and passion, or in response to a singular criminal event, however horrific it might be. Cooler heads are needed where our fundamental liberties are at stake.

But she, and I, after all are criminal defense attorneys - what would you expect us to say?  Which is why Patty Wetterling's voice is so important on this issue.  She knows the pain of losing a child, but has come to realize that the anger and desire to do something - anything - in the wake of such a tragedy doesn't always produce good results.

The State Calls the Deceased to the Stand

All right, so why is this funny?

OK, it's funny for lots of reasons, most of them absurd.  But the most absurd bit involves a barrister seeking testimony from a dead man.  You just don't do such things.

Or do you?

A NPR story from last week tells of a crime in Brazil in which the victim came back from the grave to testify.  It involved a love triangle - two guys, one girl - that turned violent, leaving one of the male suitors, Rosa, dead.  So far, so straightforward and downright cliched.  And then:

Lenira is riven with guilt — she still loved Rosa — and so she goes to see a medium, a very famous one. She receives a letter from Rosa from the beyond.

'In the letter, channeled by this medium, the deceased confesses,' de Lima explains. 'He says his jealousy was the reason for his death. The letter includes details that only people close to him could have known.'

Nice injection of woo into the story, but here's where it gets really strange.  The letter was actually introduced in court on behalf of the shooter.  He was acquitted.

Turns out, this is not such an unusual occurrence in Brazil, particularly in the region where these events took place:

Judge Hertha Helena Rollemberg Padilha de Oliveira (no relation to Lenira) says there are many cases involving spirits in Brazil.

'If the proof is not illegal, it is lawful — you have to accept it in the process,' she says.
So when individuals present letters from the dead, written by a medium, de Oliveira says the judge has to accept it. 'He has to accept the proof in the process,' she says. 'He can't say, 'Take the letter away from the process.'

'[Brazil] is a very spiritual society,' the judge explains. 'Ninely percent of people probably will believe in some kind of spiritual influence. Most of the people believe in life after death.'

It's hard to argue with the defense attorney for introducing the letter - it worked, after all (let's hear it for zealous representation!).  It's harder to accept a court of law treating it as anything other than the trumped up sham it is.  Putting to one side that mediums are bunk (or giant douches), how on earth is the letter admissible as evidence?

In an American court, I think you'd have a serious problem getting around a hearsay objection.  True, there is an exception to the hearsay rule for statements made by a person against his own interest, but the justification for that is firmly rooted in the here and now.  The theory goes that no person would say something incriminating about himself if it wasn't true, so such statements are generally trustworthy.*  I'm not sure that justification applies to a statement from beyond the grave - if the declarant's already dead, what's the risk in making an incriminating statement?  Not to mention, those left behind and charged with a crime would have a hell of a motive to fabricate such a thing.

As it happens, according to at least one source, Brazilian law doesn't include a prohibition against hearsay, so that might not be a problem in cases like this one.  And, assuming you believe the woo involved, I suppose it's highly relevant.  It's certainly persuasive, although the two aren't always the same thing.

It's tempting to look at a story like this and dismiss it as something that happens elsewhere.  Indeed, the NPR pieces calls it "a tale of Brazil" that brings to mind the work of Gabriel Garcia-Marquez.  Only the use of spectral evidence is hardly limited to Brazil.

On January 23, 1897, Zona Shue was found dead in her home in Greenbrier County, down along the border with Virginia.  Suspicion almost immediately fell on Zona's husand, Erasmus (or Edward, if you prefer), thanks to his taking care of the body for burial, rather than leaving the task to others in the community.  The doctor who pronounced Zona dead made only a cursory examination.  Nonetheless, Zona was buried, with the cause of death listed first as "everlasting faint," and then simply "childbirth."

Shortly after Zona was buried, her mother Mary Jane reported that her daughter's ghost appeared to her, described what a cruel and otherwise shitty guy Erasmus was, and that he had broken her neck, killing her.  Mary Jane wen to the prosecutor, who had the body exhumed and a proper autopsy (such as those things were in 1897) done.  Sure enough, Zona's neck had been broken.

Erasmus was charged with murder and, at trial, Mary Jane was the main witness for the state.  In a clever bit of trial strategy, the prosecutor stayed away from the ghost stuff, but the defense attorney cross examined her about it anyway, allowing the jury to hear the story in all its glory.  Erasmus was convicted of murder and escaped a lynch mob, only to die in the Moundsville penitentiary a few years later.

Which just goes to show that woo, and its ability to seep into what should be deadly serious matters, knows no boundaries.  And it's pretty funny.

* The rules of evidence aren't necessarily based on modern psychological science or the evidence of fairly routine false confessions.

The End to a Great Soccer Story

Even in the world of post-World Cup soccer euphoria, there's not much reason people noticed the announced retirement of Jay Demerit last week.  Demerit, a defender, played 25 times for the United States national team, including several games in South Africa for the 2010 World Cup, and had to call time on his career for the most mundane of reasons - accumulated injuries prevented him from continuing to play at a top level.  He wound up his career with the Vancouver Whitecaps in MLS, moving there when the team joined the league in 2011.

What's really neat about Demerit, aside from the fact that he seems like a great guy off the field, is how he even got that far.

Like many American players, Demerit went to Europe to find playing time.  But he didn't move straight from a youth team to a competitive club near the top of a European league or even a second-tier club.  Instead, he went to England after college (taking advantage of some helpful European quasi-citizenry) and wound up at mighty Southall FC, who currently reside in the "Spartan South Midlands League."  For the uninitiated, that's at the 10th level of the English soccer pyramid.  If you want a baseball analogy, where the Premier League is the Major Leagues and the Championship is AAA, then Southall is, essentially, on the level of Little League.*

In fact, Demerit only played two games for Southall before moving on to Northwood (7th level - about high school), but never played a competitive match for them.  That's because he so impressed one of their preseason opponents, Watford (then in the Championship), that he earned a two-week tryout.  After that, he got a one-year deal.

Then came 183 games for Watford, over five seasons, during which Demerit became a regular starter and helped Watford move up to the Premier League.  In fact, he scored the game winning goal in the Championship playoff final against Leeds (*sniff*) that sent Watford up.  It was Demerit's performances at Watford that led to him being called up for the national team, which included play in the 2009 Confederations Cup (When we dumped Spain), as well as the aforementioned South African edition of the World Cup.  And from there, on to Vancouver.

Why Vancouver?  As Demerit explains:

After the World Cup in 2010 I was a free agent, and Whitecaps FC were the team that fought hardest for me and the team that wanted me to play the role that I hoped my experience in this game could handle.

It's nice to be wanted, isn't it?

All in all, it's the kind of story they make movies about right?  Right:



Thanks, Jay.  Enjoy your retirement!

* Actually, that's not fair.  Far down the rung as Southall is, its players are adults and even get paid, albeit a very very little amount.  It really is amazing the amount of soccer that gets played at a serious level in England.

How to Coerce a Confession (Amateur Edition)

Many times before I've written about false confessions and how police obtain them.  They're professionals, after all, and have at their disposal a frightening array of psychological and legal tricks that make such things possible.  But it's easier than that to force someone into making an untrue statement, as a recent case from Texas (highlighted by Radley Balko) shows.

Alfred Brown was a suspect in the murder of a Houston police officer.  The grand jury investigating the case brought before it Ericka Dockery, who had been Brown's girlfriend for about six months.  She told the grand jury that Brown was asleep on her couch when investigators thought he was meeting with other suspects.  But the grand jury didn't believe her and, by the time trial came around, Dockery was the state's star witness.

What happened - which we know only thanks to the fortuitous release of a usually secret grand jury transcript - is that Dockery was beaten down emotionally to the point where she did what most people who give false confessions do: she told her inquisitors what they wanted to hear.

Naturally, they suggested she was lying, asking the prosecutor about the penalty for perjury, before going on:

'I'm just trying to answer all your questions to the best of my ability,' Dockery says.

A bit later, a female juror asks pointedly: 'What are you protecting him from?'

'I'm not protecting him from anything. No ma'am. I wouldn't dare do that,' Dockery eventually responds. As [prosecutor] Rizzo and the grand jurors parse Dockery's every word and challenge each statement, she complains they're confusing her.

'No, we're not confusing you,' a grand juror says. 'We just want to find out the truth.'

But things get really nasty when the grand jurors raise the spectre of Dockery's children being taken away if she doesn't tell the "truth" they seek:

When the grand jury returns, the foreman says the members are not convinced by Dockery's story and 'wanted to express our concern' for her children if she doesn't come clean.

'That's why we're really pulling this testimony,' the foreman tells her.

The foreman adds that if the evidence shows she's perjuring herself 'then you know the kids are going to be taken by Child Protective Services, and you're going to the penitentiary and you won't see your kids for a long time.'

That was the crack in the wall, which the grand jurors then exploited with the flair of a seasoned attorney locked in cross examination of a hostile witness, with admonishments to "[t]hink about your kids, darling," and that "what we're concerned about here, is your kids."  Eventually, not only did Dockery recant Brown's alibi, she admitted making a call to another one of the suspects.  One grand juror even said she thought Dockery was in on the murder itself.

As a reward for her truthiness, Dockery was charged with perjury, anyway.  She was kept in jail for 120 days, released only when she agreed to give more evidence against Brown (she even had to check in with a detective every week).  Once she testified and Brown was convicted and sent to death row, Dockery's perjury charge evaporated and she went on with her life.

What makes this situation particularly repugnant, is, as Balko explains, grand juries aren't supposed to work this way:

Grand juries are supposed to protect us from false allegations, but the old saying that prosecutors could get a grand jury to 'indict a ham sandwich' reflects the reality that most fail on that front. Instead, as this study from the Cato Institute explains, they’re often used to harass and intimidate.

Keep in mind that the traditional rules of evidence don't apply in grand juries and witnesses don't have a right to have counsel with them while testifying.  In addition, it's an entirely one-sided affair, as there is no opposing counsel to try and keep things in line.  There's not even a judge - the prosecutor runs the show.

By the way, remember that phone call that Dockery said Brown made from her house originally?  Balko again (with my emphasis):

seven years later, a phone record showed up proving that Brown had called Dockery from her apartment on the morning of the murders, supporting his story — and hers, before she was pressured to change it. That important bit of exculpatory evidence was found in the garage of a Houston homicide detective. Brown is still waiting to learn if he’ll get a new trial.

It's perhaps not surprising that grand jurors, regular citizens who get pulled into doing this kind of duty, start acting like cops or prosecutors in pursuit of convictions over all else.  After all, if the cops don't have play by the rules, why should they?

Friday Review: The Postman

A lie gets halfway around the world before the truth has a chance to get its boots on.

 - Mark Twain (maybe)

You can lead with all new lines

If you believe in what you say

And life can be just as you make it

Believe the lie and it will all come true

 - Umprhey's McGee (definitely)

Yeah, OK, so sometimes the lie is easier to tell than the truth.  But what happens when the lie is a noble one, one that (to borrow from The Simpsons) embiggens your fellow man?  And what happens if the lie gets out of control and takes on a life of its own?

That's the basic idea behind The Postman, by which I mean the lauded David Brin novel, not the critically savaged (hello Razzies!) Kevin Costner flick that sprang from it.  Gordon Krantz is not actually the titular postman - indeed, there are no such things in the post-apocalyptic world Brin lays out (in what is now our actual past). But he claims to be one, just to survive.  Then, shit happens.

Brin does an interesting thing in The Postman because instead of taking us through the apocalypse and the initial postlude of survival, he drops Gordon (and us) in 16 years after everything went to hell.  That's allowed the world to settle a bit, although it's settled into a world full of dangers, from mundane bandits to leftover pre-war survivalists with a philosophy that's very like Ayn Rand on steroids. It's while escaping from those kinds of bandits that Krantz comes upon an abandoned USPS truck, complete with dead driver inside.  He nicks the uniform purely for warmth and grabs a bag of mail for reading (and presumably other) material, no real intent to pull a scam on anybody.

The scam, such as it is, unfolds slowly and does require a bit of a stretch, that being that after nearly two decades of there being no such thing as the United States, much less the United States Postal Service, people are overwhelmed at the idea of getting mail service back.  Krantz's attempts to slip away from the first small town he comes to are complicated by people trying to pay him to take letters for them.  From there, Krantz builds an entire facade of being an official of the Restored United States and begins to forge some connections between the scattered Oregon settlements.

That's part one, in which Krantz falls into and embraces his scam.  Part two adds a nice twist.  He comes to the town of Corvallis (home of Oregon State University and a prime location for the post-apocalyptic Dies the Fire series), where society seems to be holding on pretty well and surging toward a brighter future.  It's precisely the kind of place Krantz has been looking for all these years, a place to settle down and help rebuild the world, but he's now trapped by his own lie.  He's unable to give up the postman game because of how much the lie has taken root behind him.  Thrown in another nice twist in the form of a still functional (maybe) super computer and this middle section of the book is a highlight.

The third part (perhaps not coincidentally, the part that wasn't originally published in stand alone form)doesn't fare so well.  There's an invading army of Randians threatening the struggling civilization, which Krantz decides to stay behind and fight, rather than flee.  Which is a shame, because when the big showdown comes - between genetically enhanced soldiers who have played no real part up to this point - he's watching from the sidelines.  Add in a weird bit of extremist feminism that seems more like parody than anything else and the book ends with a bit of a thud.

Naturally, this being Brin, it ends on an uplifting (ha!) sentiment.  He's big on science fiction as an inherently positive endeavor, showing how mankind will keep on keeping on in the future.  It's a hard fit for a post-apocalyptic tale, so it has to at least suggest that happy days are on the way to being here again.  Having said that, there's at least enough uncertainty in the world of The Postman to not make it feel like a cop out.

The Details
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The Postman
by David Brin
Published 1985
Winner Locus Award, Aurthur C. Clarke Award

I Was Going to Say That

So, when the Supreme Court announced the decision in the Hobby Lobby case, I was immediately seized by the need to write something satirical about it.  I got about this far, before I ran out of spunk (as often happens with satire):

SCENE: A boardroom on a bright summer morning.  Sunlight streams through an animatronic stained glass window depicting Eric Idle singing the "Money" song.

My closely held brethren in profit, welcome to this, the annual feast day of the holy Hobby Lobby.  Before I go further, let me thank the sisters for the wonderful coffee and baked goods upon which we feast this day.  Although, please, ladies, no more danishes?  The Danes, of course, are godless communists and we have no room for that here at GloboCorp.

And sisters, if you wish to stay while we speak, please sit down in the back of the room and be quiet?  Blessed are thou.

It would have continued in that vein, feasting the holy Hobby Lobby as the paragon of how to make even more money by appealing to the name of God.  As I had written up for insertion later:

Muhammad, my brothers, may have moved the mountain, but he did not increase the bottom line.

But, as I said, I ran out of spunk and it sat there for a bit.  Then, along comes Kathryn Pogin, writing at the New York Times philosophy blog (it's a thing) and she, while not aiming for the snark I was going for, hit what I think are all the high points of why the whole Hobby Lobby thing is such a miss.

To begin with, science and the actual world has little to do with Hobby Lobby's objections:

Some corporations that have objected to the contraceptive requirements of the Affordable Care Act, like Hobby Lobby, claim that they do not wish to discriminate against women by denying them access to contraceptives generally, and that their opposition is merely to abortion. However, their understanding of which medications act as abortifacients rests on an outdated understanding of medical science and is at odds with the facts of the matter. Use of these contraceptive methods is not tantamount to abortion, and moreover, providing women with access to safe, reliable contraceptives for free drastically reduces the actual abortion rate.

Nor does it matter that Hobby Lobby's concern about particular contraceptives is of recent and dubious vintage:

Hobby Lobby offered coverage for some of the contraceptives it now claims its religious faith forbids it to have any association with, until shortly after the Becket Fund for Religious Freedom asked it if it would be interested in filing suit. The company continues to profit from investments in the manufacturers of the 'objectionable' contraceptives through the 401(k) plan it offers its employees. Recently, Hobby Lobby has faced legal trouble for false advertising. It has built a fortune, in large part, by selling goods manufactured in China, infamous for its poor labor conditions and related human rights violations. These are the practices of a corporation that will emphasize the Christian faith of its owners when convenient and profitable, but set that faith aside when it would be costly to do otherwise.

What Pogin overlooks, or ignores (it's a philosophy blog, after all, not a legal one), is that none of those considerations were relevant to the Supreme Court.  Neither the majority or dissent were willing to take on the substance of the company's stated beliefs and how they interacted with the real world.  This, quite correctly, is a feature not a bug - the government, including the courts, shouldn't be in the business of deciding the truthfulness or sincerity of religious or similar beliefs.  But therein lies the rub - because those beliefs are off limit from official inspection, neither can they be a basis for a get-out-of-obeying-any-regulation-I-don't-like card.  The Supreme Court got it right in Smith.  Unfortunately, Congress saddled us with RFRA (which was the controlling law - not the First Amendment), another nasty gift of the Clinton era that keeps on giving.

Having said all that, Pogin also gets exactly right the actual impact of the decision on women and why the "it doesn't ban anything" argument rings hollow:

This is economic coercion. Opponents to the contraceptive mandate have insisted that women remain free to purchase whatever health care services they choose, but this is woefully insensitive to the reality that low-income women and families face. For these women, there is a very large difference between what is available to them for purchase in principle and in effect. It is easy for those who do not regularly face desperate decisions due to financial insecurity or medical complexities to forget the difference. An intrauterine device, for example, can cost a low-income full-time worker more than a month’s wages. For some women, this is both the safest and most effective medical option, yet hopelessly unaffordable.

Pogin has another interesting angle, too, that being that Hobby Lobby isn't even a good Christian, but that's a hunt in which I have absolutely no dog.

At the end of the day, the question is whether Hobby Lobby is as limited in its impact as the Court seems to think it will be.  I, honestly, can't see a way to distinguish the exemption approved there from the ones the Court seemed to clearly think were different, but I sometimes lack imagination.

I guess we'll have to wait and see after GloboCorp finds Jesus, huh?

World Cup Thoughts

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

A few player specific thoughts . . .

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

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

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

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

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

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

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

Friday Review: The MaddAddam Trilogy

A couple of weeks ago it was announced that award winning director Darren Aronofsky has been tapped to adopt Margaret Atwood's MaddAddam trilogy for HBO.  Seems like a good choice.  After all, Aronofsky's last movie was about a petulant being who nearly wipes all life from the Earth because he gets pissed off. Basically, the MaddAddam trilogy is the same thing.

Which is not to say Aronofsky won't have his hands full.

Most literary trilogies - most sci-fi (and it is, dear reader, regardless of what Atwood would tell you) ones, certainly - tell linear stories.  The story starts in the first volume, continues in the second, and then is resolved in the third.  MaddAddam doesn't play the same game.  Yes, there is a continuous story being told, one of a post-apocalyptic world and the few people left to deal with it.  But the focus of each novel is on the past, not the present, as we learn just how this world came to be the way it is.  Which is good, because the flashbacks are, generally, much more interesting than what's going on in the "present."

Book one, Oryx and Crake, begins with Snowman (aka Jimmy), a post-apocalyptic hermit who lives nearby some very strange nouveau humans, to whom he is a kind of protector and prophet.  Through flashbacks, we learn that Snowman was friends with Crake (aka Glenn), an all around genius.  They were both in love with Oryx, who may or may not have been a girl they first discovered via only kiddy porn (See?  I told you the flashbacks were more interesting).  Crake's genius, as it happens, is tempered by his disdain for what humans have do to the planet, so he uses his skills to (a) engineer a virus that wipes most of humanity off the planet and (b) engineer the nouveau humans, called Crakers.

The second volume, The Year of the Flood, focuses on two women who survive the virus, Toby and Ren.  Their back stories intersect with each other via a environmentalist cult called God's Gardeners (they also intersect with Jimmy and Glenn, as it happens).  The Gardeners preach about the need to return to nature and of the coming "waterless flood," which will wipe humanity off the map (thus allowing the big bad from Aronofsky's movie off the hook after promising no more floods).  This book is interrupted, in numerous places, for sermons from the Gardener's founder, Adam One, and songs of worship.  For the audiobook, the songs are actually performed, which was neat at first, but quickly got old.  If we need hippified love-Gaia kind of tunes, couldn't they have called up Steve Hilliage?

The final volume, MaddAddam, picks up where the first two converge and goes forward from there, but also backwards.  This one focuses on Zeb and his brother, Adam (aka Adam One), and their role in the waterless flood.  This is all told, in flashback (naturally), to Toby, who then has the unenviable task of translating it for the Crakers, who continue to want to know how they came to be.

With any trilogy, there's a sense of diminishing returns.  No sequel, no matter how skillfully done, can replicate the fun of being thrown into an entirely new world that you get from the first volume.  The MaddAddam trilogy suffers from this more than others, thanks to its format.  Each book essentially tells flashback versions of the same story, but from different points of view.  It's more effective than you might think, but by the time we dive into Zeb's story it's less a matter of learning new information than finding out how characters we've come to know from earlier volumes fit into the narrative.

The "old" world that Atwood fleshes out in the flashbacks is fascinating, chilling, and hits just a little too close to home.  Corporations have become supreme, not by buying into government (like they do now), but by setting up their own heavily armed fiefdoms.  Those who don't work for the corps are stuck in violence and poverty plagued "pleeblands."  The seas have risen (New York City is gone, replaced by a new version in Jersey) and various kinds of genetically grown critters - hybrids of, say, lions and lambs (it's a religious thing) - roam the earth.  I won't go so far as to say that Atwood sets up a world that's worth destroying, but that argument could be made.

The only thing in the new world that's half as interesting are the Crakers, the nouveau humans created by Crake as the replacements for our kind of humans.  Made with a heavy dose of genetic engineering, they're vegetarians (the graze), run around naked but can stand the warming sun, and mate only every so often in weird rituals that involve gang bangs and waving blue penises.  Unfortunately, the Crakers are also exceptionally annoying, because Crake did not bless them with a mind as advanced as our own.  The interactions between the surviving humans and the Crakers are sometimes amusing, but often are only annoying.

The dullness of the new world is most evident in the closing volume.  For one thing, Atwood lets Toby, a character who has survived on her own for months and was clearly a strong person, devolve into an older variant of a moody high schooler.  She spends entirely too much of our time worrying about whether Zeb's out fucking other women, based purely on speculation, and, generally, becomes a very passive personality.  I'll assume Atwood had a reason for doing this, maybe some comment on the way we fall into old communal habits even in the strangest of circumstances, but it was hard to take.

Similarly, there's very little threat to the characters in the new world.  Since this was a biological apocalypse there's lots of spare materials to use for survival.  Yes, life for these characters is harder than it was before, but I never had a sense that they were truly eking out a survival (nobody succumbs to a mundane injury/illness, for example).  One potential menace from the earlier books, creatures called "pigoons," loose their power to frighten.  Originally created to produce spare organs for humans, they're the most advanced sci-fi swine since the piggies of Speaker for the Dead.  But, as it turns out, the Crakers can talk to them and a deal can be struck to keep everybody safe.  Bleh.

That leaves as big bads for the humans, Crakers, and pigoons to face a pair of black-hat killers, refugees of a pre-flood punishment game called painball.  Painball is so ruthless and violent that anyone who survives it is turned into a heartless psychopath bent on rape and murder.  It makes them scary, but it doesn't make them interesting.  For one thing, it's never clear why Toby and the group see the painballers as such a threat - they have them outnumbered and outgunned, so why don't the painballers just go elsewhere?  For another thing, the group of survivors shows little rational thought when it comes to what should be done to the painballers, even worrying that their offspring might be murderous psychopaths (which makes no kind of fucking sense).  The final big confrontation is saved only by a nice switch in narration that gives the whole thing a distant, mythical gloss.

If that makes it sound like I'm down on the whole trilogy, it shouldn't.  Atwood's style and way with prose goes an awful long way to making the entire thing worth reading.  It's dark territory she's exploring, but there are bursts of humor and satire that stand out.  The only thing that really goes wrong is that the entire enterprise runs out of steam in the end.  That stings (see the US collapse against Portugal last Sunday), but it doesn't invalidate everything else.

But it does mean that Aronofsky has quite a bit of work ahead of him.

The Details
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All by Margaret Atwood

Oryx and Crake
Published 2003

The Year of the Flood
Published 2009

MaddAddam
Published 2013