The International Misery Film Festival

Did you ever have the kind of weekend where you fell into an impromptu film festival? Naturally a festival has to have a particular theme, right? This past weekend, the wife and I fell ass over teakettle into a series of largely depressing, but mostly good, movies about various historical horribles. An International Misery Film Festival, if you will.

First up was a recent HBO documentary, The Art of Political Murder.

It’s about a Guatemalan priest and human rights advocate, Juan José Gerardi Conedera, who was murdered in 1998, two days after he announced the release of a report on abuses during that country’s civil war that implicated the government in various atrocities. The film works through the investigation and ultimate conviction of several perpetrators (army officers and a fellow priest), although it stops before diving into why they did it or if someone higher up the authorial chain ordered them to do it. The film tries to play like a whodunit, but it wastes time on alternate theories that don’t pan out, almost like it needs to delay the inevitable conclusion. Recommended for shedding light on an incident I wasn’t familiar with, but could have been better.

From Guatemala we next travelled to Cambodia. When the wife and I honeymooned in Cambodia we stopped for a day or two in Phnom Penh between stints exploring ruins around Ankor Wat and some beach days at Kep. That gave us time to experience the Tuol Sleng Genocide Museum, as well as the nearby Cheung Ek “killing fields.” It was a thoroughly heart wrenching experience. At Tuol Sleng we met one of the few survivors of the prison/torture facility the Khmer Rouge ran there, which it called S-21.

Turns out, the man and another survivor were central to our next film, S-21: The Khmer Rouge Killing Machine.

Low budget (it was shot on video, I’m pretty sure), but harrowing and powerful, this doc brings those two survivors together at Tuol Sleng with a host of men who worked there for the Khmer Rouge – guards, torturers, drivers. A large part of the doc is given over to these men explaining what they did at Tuol Sleng and, in some cases, pantomiming their crimes and daily routines. What’s most amazing, to 21st century ears, is that while one of these men voices the expected “just following orders” defense, they don’t make any attempt to euphemize what they did. The word “torture” is used repeatedly, rather than, say “enhanced interrogation techniques” (the Khmer Rouge waterboarded, too!). They go to Cheung Ek and cold describe mass murder. The limitation of a doc like this is there’s very little understanding of what made people do this to one another, but on its own terms it’s very worth watching.

From the 1970s in Southeast Asia we moved to something influenced by what was happening in that region at the same time, The Baader Meinhoff Complex.

??????????

This German film briskly covers the rise and fall of the first iteration of the Red Army Faction (sometimes known as the Baader Meinhoff Gang, after two of its leaders) from about 1968 to 1978. An outgrowth of the West German student protest movement, the RAF conducted a series of bank robberies, assassinations, and bombings in hopes of sparking a Marxist revolution. What was really interesting was how much motivation came from American activities in Vietnam and having military bases in West Germany. Indeed, some of the group’s bombings targeted American military installations, killing a handful of American soldiers.

There are issues that resonate with the modern world throughout the film. It begins with a demonstration by students against the visiting Shah of Iran. Once he and his wife leave the scene, the protestors are attacked by Iranian supporters, while West German police standby (they later join in, beating protestors and, in one case, shooting and killing one). It’s impossible not to watch that now and think of the police response (or lack thereof ) to various protests (and worse) in the US over the past few years. That the main RAF members wind up in solitary confinement pending their trial echoes in debates of how often that’s used in our modern penal system.

That said, the most interesting facet of the film is Horst Herold, the head of the West German police, played in a clever bit of casting by Bruno Ganz, the Hitler of Downfall fame. On the one hand, Herold does what you’d expect of a police chief chasing a band of murderous criminals and pulls out all the stops to catch them – at one point, he puts every police officer in West Germany on the street on a single say performing checkpoints, patdowns, and searches. Yet, he also recognizes that to combat terrorists you need to understand their motivations, which usually stem from legitimate concerns. That his more enlightened thoughts don’t carry the day point out a fundamental irony of the whole thing – in violently reacting to what it perceived as the West German police state, the RAF gave the state the justification it needed to really crackdown.

The film’s major problem is that it just has too much ground to cover. Intent on cramming as much action in as possible, it doesn’t spend enough time with some of the ancillary characters who drop in for an operation then disappear. It also doesn’t provide any idea of what happened to the RAF after its founding members died in prison. Still, a good watch and highly recommended.

I wish I could say the same about our sojourn in Ethiopia and London, Sweetness In the Belly.

Based on the novel of the same name, this tells the story of a British girl who is abandoned at a Sufi shrine in Morocco by her parents (who were probably killed over some kind of drug debt). She becomes devout, goes to Ethiopia just as the civil war there starts, and winds up a refugee resettling in London. There are issues of representation here – the story of African refugees told through the eyes of a white British woman – but the film’s biggest sin it that it’s just not very compelling. Lily, the main character, is a complete bore whose attractiveness to the two doctors of color she comes across (one in Ethiopia, the other in London) is completely inexplicable. The film fares better when it focuses on Lily’s bonding with another refugee in London, but that only goes so far. Not recommended.

Our final stop was the Soviet Union, via England and Wales, for Mr. Jones.

The title character is Gareth Jones, a Welsh journalist who, in the early 1930s, was also an advisor to British Prime Minister David Lloyd-George. After scoring an interview with Hitler (the result of which is alarm that wasn’t fully heeded), Jones wanted to do the same with Stalin. Cut loose from the government due to budget cuts (it was the Great Depression, after all), he makes it to Moscow. He doesn’t get to talk to Stalin, but the murder of another journalist (allegedly during a robbery) and the fact that reporters are being restricted to Moscow, make him curious. He manages to sneak to Ukraine where he bears firsthand witness to the Holodomor, the man-made famine that killed millions of people and may (depending on who you ask) been an act of genocide. The Soviets had been covering the whole thing up until Jones’ reportage came out.

The film keeps its point of view close on Jones, which is effective for the most part, but it robs the Holodomor of any real context. We see the horrors of it – even if (according to his family) the real Jones didn’t experience all of them (such as cannibalism), as he does in the film – but don’t get more than a few passing mentions about how and why it happened. There’s also a frame story with Orwell writing Animal Farm and it just doesn’t work. I get it – Orwell’s fable is a takedown of Stalinism – but it seems like it’s just stuck on to Jones’ story, particularly given that there’s a scene where the two meet and talk about what they’re writing! Flawed, but ultimately worth a watch. So, there we are. This weekend, I’m thinking some mindless comedies to balance things out.

In Praise of “Minor” Epics

If there’s one characteristic of progressive rock that stands out above the others it’s song length. From the get go, bands weren’t afraid to push the envelope well beyond your typical three-minute rock/pop song. “Epic” became a kind of watchword for prog (even though it’s clearly not required), to the extent that side-long epics (or even beyond!) became common place.

I love me some epics, but I’ve found over the years that the real sweet spot for prog seems to be in what I’d call the “mini-epic” range – songs that took up most of an album side, but not the entire thing. Some of my favorite songs fall into this range, so I thought I’d highlight and praise some of these mini-epics.

First, a note on precisely what we’re talking about. For the “classic” era (mostly the 1970s), we’re talking about songs, as I said, that didn’t take up an entire side of an album. For the “modern” era (everything else), I’m talking about songs of about the same stature, so between 10 and 15 minutes. Long enough to do lots of things, but short enough for the end-of-the-side palate cleanser to come after.

With that said, here’s ten of my favorites, five “classics” and six  more “modern” ones (‘cause I couldn’t decide which one to sacrifice).

“The Grand Wazoo” by Frank Zappa, from The Grand Wazoo (1972)

Zappa wasn’t know for epics (he tended to string together shorter songs that all segued together on a side), but his two “big band” albums had a few. The title track from The Grand Wazoo is my favorite of the lot (aside from the first 90 seconds or so of “Big Swifty”). Love the horns, love the slinky synth solo.

“And You and I” by Yes, from Close to the Edge (1972)

This barely passes the 10-minute mark (the live version is a bit quicker and doesn’t), but it still fits the bill, packing in so much, from Howe’s harmonics in the opening through Wakeman’s Minimoog solos, Anderson’s lilting vocal, and the supreme tightness of the Squire/Bruford rhythm section. Yes often went bigger, but rarely better.

 “Cinema Show” by Genesis, from Selling England by the Pound (1973)

Quite possibly my favorite hunk of Genesis ever, particularly the long instrumental second half. The vocal first part, with typically obscure mythological lyrics, is great, too, but the lengthy keyboard solo in the second half really sells it. Notably, the instrumental section is just the three piece – Banks, Collins, and Rutherford. A sign of things to come.

That said, the live version from Seconds Out is heads and shoulder better than the studio version.

“Starless” by King Crimson, from Red (1974)

King Crimson has covered so much stylistic ground that it’s hard to pick one favorite track, but if I was forced to pick one favorite Crim track, this would be it. Somewhat like “Cinema Show” it’s got a vocal intro followed by a lengthy instrumental coda, one that builds layers slowly until it finally explodes in aural widescreen. Love the Mellotron all over it, too.

“Squarer for Maud” by National Health, from Of Queues and Cures (1978)

National Health are my favorite of the bands that emerged from the “Canterbury scene,” mixing a loose, jazzy style of prog with lyrics that were often absurd or completely baffling. The only words here are a spoken-word musing on the word “luminous,” which leads into the lengthy instrumental coda. Are you noticing a theme here?

“Go the Way You Go” by Spock’s Beard, from The Light (1995)

A milestone for me, as it was the first bit of music I listened to over the Internet and the first album I bought over the Web. The listening was of a 30-second clip that (the guitar breakdown about halfway through) took gods know how long to download over dialup and the actual purchase only came after a phone call with guitarist Al Morse (he sang a chorus of “Country Roads” when he found out I was in WV), but that’s what the early days were like, kids!

“Russia On Ice” by Porcupine Tree, from Lightbulb Sun (2000)

Steven Wilson has always been great at playing with dynamics and mood. He uses both to maximum effect here, with the sluggish, barely there verses giving way to the lush, explosive choruses. Not my favorite of his work, but a great tune nonetheless.

“The Seventh House” by IQ, from The Seventh House (2000)

Even clunker albums have gems. The title track to The Seventh House stands heads and shoulders above the rest of what is a pretty weak IQ effort. The story of two WWI survivors coming to grips with their memories, it’s cinematic and emotional. I wish I understood what the whole “houses one through six” thing was about.

 “The Invisible Man” by Marillion, from Marbles (2004)

Just brilliant from start to finish. Atmospheric, brooding, and creepy song that manages to actually tell a tale worth telling. I think they’ve done this track every time I’ve seen them live since Marbles came out and I never get tired of it.

“The Island” by The Decemberists, from The Crane Wife (2006)

You don’t have to be hard-core proggers to dabble in the epic. On this album and the next The Decemberists really leaned into their prog influences, though – this even has a keyboard solo that’s very Keith Emmersony! Still, it works best because Colin Melloy works such great narratives in his songs and here, with a little more room to roam, makes full use of it.

“Microdeath Softstar” by Phideaux, from Doomsday Afternoon (2007)

I really wish an album about environmental disaster and mankind’s inability to do anything about it wasn’t becoming more and more relevant with each passing year. At least the music’s good, full of Phideaux’s trademark churn (I can’t think of a better way to describe it) and lots of tasty playing. At least the end times will have a good soundtrack.

What Does It Mean to “Sell Out”?

“Sell out!” Is there any worse insult to hurl at a creative person?

After all, writing or making music or whatever is supposed to come from the soul, right, and nothing good can come of creating art just to profit off of it. But what does it really mean to sell out and are most examples of “selling out” just really people getting lucky while doing something different?

I started thinking about this a while back when I stumbled across a list of “7 rock bands that were open about being sellouts.” The article doesn’t fulfill its promise – none of the artists listed are shown to have been “open” about selling out and, in at least one example with which I’m very familiar, there was no selling out, unless “selling out” is defined as only becoming hugely successful after years of not being so.

That example is Genesis.

Formed in the late 1960s at the English “public” school Charterhouse, Genesis was one of the leading lights of the progressive rock scene in the 1970s. Even after vocalist Peter Gabriel departed, they made two great prog albums. After guitarist Steve Hackett left in 1977, the band soldiered on as a trio and their sound started to change to something more streamlined and modern. It was that lineup that became absolutely huge in the 1980s, to the point where they were damned near everywhere.

This, naturally, led to some fans of the band’s 70s style walking away huffing about selling out. As the original article put it, after Gabriel left:

Phil Collins took over the vocal duties and over the course of a couple of subsequent Genesis albums changed the style of the band to a much more commercially viable one. He didn’t hide the fact that monetary gains influenced the decision to stray away from long progressive compositions and into simpler pop-rock arrangements.

There’s no link or reference for the “monetary gains influenced to decision to stray away from long progressive compositions” and most interviews I’ve seen suggest otherwise. For one thing, this narrative that Collins drove the stylistic change overlooks the contributions of keyboardist Tony Banks and guitarist/bassist Mike Rutherford. Most of the band’s big 80s hits were co-written by all three of them and there’s no evidence to suggest Banks and Rutherford were pulled in that direction by Collins against their will. Their solo projects show serious pop leanings and, arguably, the band’s first attempts at something more mainstream were written by Rutherford (“Your Own Special Way” from Wind and Wuthering) or all three of them (“Follow You, Follow Me”). Point is – the entire band was in on it.

And was this really selling out? “Selling out” implies some calculation on the part of the artist, of doing something for commercial gain that they wouldn’t otherwise do. Is that what happened with Genesis? It doesn’t look that way. By all indications, the band’s direction shifted because they wanted to do something different. They’d done all they wanted in the prog world, so why not explore some different areas? Banks in one interview explained that they’d “always did long and short songs, we just got better at the short ones” (he also denies that Collins’ solo success had an impact on the band’s music direction). At any rate, there doesn’t appear to be good evidence that the band stuck their collective fingers in the wind and said, “right, let’s go make some cash.” They did what they wanted to and it worked.

Yes is also on the list of “sellouts,” which makes even less sense, in context. Indeed, 90125 and the big single off of it, “Owner of a Lonely Heart,” sound radically different than Yes during its prog heyday, but there’s no indication that was done for coldly calculated economic reasons. The song wasn’t even a Yes song to start, as it was written by Trevor Rabin on his own, then brought into a band that wasn’t intended to be Yes. Hell, according this write up, Rabin was told it was “too weird to be a hit in America” – a hell of a way to sell out!

It appears to me that “sell out” is more an insult than an accurate description. It’s the kind of thing “real” fans scream when their favorite band changes course in a way they don’t like, a means of coping, I guess.

Which, you know, is okay. I can find great stuff throughout the Genesis catalog, but if you made me pick three of their albums to listen to for the rest of my life none of the trio stuff would make the cut. Others would choose differently, including my former boss (and Patrick Bateman), which is why music and art is so much fun. But there’s a difference between changing directions and making art that turns out to be popular and selling “to those who want buy.”

I’m not saying people don’t sell out, but I suspect it happens mostly in a losing effort. Big Generator looks much more like an attempt to cash in on the success of 90125 and “Owner,” but it wasn’t as huge so it kind of gets overlooked. Or it happens because of label pressures more than an artist’s desires (see Marillion’s Holidays In Eden). Mostly I think it’s a lazy epithet. The writer of that piece on “Owner,” even recognizing it was “too weird” to be a hit, still labels it selling out (even though he praises the song itself).

Besides, what’s wrong with shipping some units? Pop stars have kids (and ex wives) that need fed, too.

On Pardons and Admissions of Guilt

I’ve almost written this post several times, but I’m only just getting around to it. I’ve gotten plenty of opportunities, at least.

Over the years, every time Trump has pardoned one of his cronies – as he recently did with Michael Flynn – one of the reactions (mostly on the left) has been that by accepting the pardon the recipient admits his guilt to whatever offense he is being pardoned for. I think this rests on a misreading of the relevant Supreme Court case. More than that, any quick thought about how pardons normally work show that one doesn’t really have anything to do with admissions of guilt at all.

The Supreme Court case at issue is Burdick v. United States, 236 U.S. 79 (1915). And to be fair, in Burdick the Court did say this, in distinguishing between pardons and legislative immunity:

This brings us to the differences between legislative immunity and a pardon. They are substantial. The latter carries an imputation of guilt; acceptance a confession of it. The former has no such imputation or confession. It is tantamount to the silence of the witness. It is noncommittal. It is the unobtrusive act of the law given protection against a sinister use of his testimony, not like a pardon, requiring him to confess his guilt in order to avoid a conviction of it.

Case closed? No quite, for two reasons. First, there is absolutely no citation to any other case or source to support the idea that accepting a pardon means confessing guilt. Second, no court, even the Supreme Court, proclaims on law in a vacuum. So what was it that was the actual issue in that case?

Burdick was the editor of a New York City newspaper that had published leaks from inside the Treasury Department. The local US Attorney convened a grand jury to investigate and called Burdick, hoping he would name his sources. Instead, Burdick invoked the Fifth Amendment and his right to remain silent. To get him to talk, the US Attorney went to President Woodrow Wilson and obtained a pardon, which would extinguish the ability of Burdick to plead the Fifth (which, coincidentally, is where Flynn is now). Burdick refused to accept the pardon, continued to refuse to testify, and was eventually convicted of contempt for doing so.

When the case reached the Supreme Court the issue was, in the Court’s words, a “narrow question, is the acceptance of a pardon necessary?” Ultimately, the Court held that it was and that the person to whom the President wants to give a pardon doesn’t have to accept it (this is one hook upon which hangs the theory that Trump cannot pardon himself). It was in discussing why someone might not accept a pardon that the Court noted that it can be perceived as an admission of guilt. Thus, what a pardon means to the person accepting it wasn’t the issue before the Court – it was whether the person could reject the pardon in the first place. To my reading, that doesn’t to a clear legal basis for saying that the acceptance of a pardon is an admission of guilt.

But beyond what Burdick actually says (and about what), the idea that parsons require admissions of guilt just doesn’t make sense in a lot of cases and would create some real perversity in other cases.

For one thing, posthumous pardons exist, though they’re rare. In 1999, Bill Clinton entered the first federal one for Henry Flipper, the first African-American to graduate from West Point. It came 118 years after Flipper’s court martial and almost 60 years after he died. Trump did something similar with heavyweight champion Jack Johnson, granting a pardon in 2018 for a bogus Mann Act conviction that occurred in 1913 – Johnson died in 1946. There are countless other examples of posthumous pardons at the state level. Needless to say, the dead cannot admit to anything (they can’t accept anything, raising questions of whether these pardons actually mean anything) or confess to a crime in order to receive pardons. Whether posthumous pardons make any kind of sense, they are a thing, and they argue against the act of pardoning involving any kind of admission of guilt.

For another thing, some pardons are issued in anticipation of prosecution, not after a conviction. The most notable example is Gerald Ford’s pardon of Richard Nixon after his resignation, not for specific crimes for which he’s already been convicted, but for any crime for which he could have been charged. Notably, while Ford apparently carried hunk of Burdick around with him as proof that an acceptance of a pardon was a confession of guilt, Nixon’s own statement accepting the pardon didn’t confess to any particular crime (although he apologized for the “anguish” his actions had caused – the prototypical “I’m sorry because you’re sad” nonpology). What would the recipient of such a pardon confess to without having been convicted of something?

A related concern is mass pardons, which cover entire classes of people and aren’t concerned with the particular facts of any one case. Such pardons include Andrew Johnson’s mass pardon of ex Confederates after the Civil War (notably, the oath required to get one was all about allegiance going forward, not confessing to past crimes) and Jimmy Carter’s pardon of Vietnam War draft evaders.

Finally, requiring those who are offered pardons to admit guilt in order to receive them would lead to perverse results. Convicted people who are actually innocent may be loath admit to something they don’t believe – that they’re guilty of a crime – in order to get a pardon. This is the same dynamic that sometimes plays out with parole boards – they want some sign that the inmate at issue is remorseful and reformed, but if you’re wrongfully convicted how can you provide that? Furthermore, the use of the pardon power to spare the innocent is, arguably, it’s primary function. Thus, when the Governor of Illinois issue a pardon to Oscar Neebe and his codefendants (convicted in 1886 for taking part in the Haymarket bombing) in 1893, because they were innocent. In 2011, the Governor of Colorado posthumously pardoned a man who had been executed in 1939 because his conviction was based on “a false and coerced confession.” Other examples of similar pardons abound. If, as we’re often told, pardons are supposed to be a kind of safety valve in the criminal justice system, to allow executives to give relief to those who did not commit the crimes of which they were convicted, reading the acceptance of a pardon to mean a confession of guilt makes no sense. Pardons, as well as commutations of sentences, are acts of executive grace, the last vestige of the absolute power once granted to kings. They can be granted for good reasons, bad reasons, or no reason at all. That’s the point – this is the one area where the executive gets to make that decision themselves. Maybe that’s an idea whose time has passed, but it would require Constitutional amendments to change. The very nature of pardons is that they don’t come with strings attached (unless they specifically do), certainly not the requirement of admitting guilt from the one being granted the relief.

Thoughts On Buttered Cats

One of my favorite bands is Sanguine Hum, which marries intricate song writing and arrangements with an absurdist streak derived from the original Canterbury scene (not for nothing was an earlier version of the band called Antique Seeking Nuns). A few years ago they released a pair of concept albums – Now We Have Light and Now We Have Power – inspired by what’s called the “buttered cat paradox.” Did I mention the absurdist streak?

The buttered cat paradox is best explained in this short video, where butter is substituted with jam, but the principle is the same:

The further step upon which the Sanguine Hum albums are based is the idea that if the cat will hover off the ground, rotating, that the rotational force could be capture as a form of generating power. As one song from the first album goes:

The simplest way to describe
What is lighting up the night’s sky
Is rotatory fur!
It spins through the air.
We buttered their backs
Now we have light!
Now we have power!

This is, of course, basically a joke (remember the absurdum!), but the whole idea never sat right with me. If the cat wants to land on its feet and it’s falling feet first, why on Earth would it suddenly stop and start spinning? Sadly, my education left me without a good means of figuring this out. The closest I got to science in college was a survey-level Biology class, with nary a Physics class in sight. If you need someone to explain the histiocity of Holocaust denial or expound on legal philosophy, I’m your man. How things move in the universe, not so much.

I did some poking around and someone confirmed that I was right to think this doesn’t make any sense! The long and short of it involves the much larger mass of the cat as compared to the buttered/jammed toast:

So there it is – a completely hypothetical, terminally absurd thought experiment is debunked. I do take some satisfaction in this, even as I try to always keep in mind the MST3K motto to “repeat to yourself it’s just a[n album], you should really just relax.”

Let’s do just that, then, shall we?

Now We Have Light by Sanguine Hum

Now We Have Power by Sanguine Hum

The Mouse That Didn’t Roar

A lot has been written in the past few days (and will be written in the foreseeable future) about the legacy of the late Ruth Bader Ginsburg, both as an advocate before the Supreme Court and as a long-serving Justice. I wanted to highlight something that might get overlooked in all that (although at least one other commentator mentioned it), an instance where she made a huge impact on an important part of federal law without any explanation of why she made the decision she did.

Sentencing in federal criminal cases changed dramatically in the 1980s. Up until then, judges had great leeway to impose a sentence within a broad statutory range, with release on parole at the back end further mitigating potentially harsh sentences. Confronted with great disparities in sentencing, a bipartisan law, the Sentencing Reform Act (passed in 1984) gave birth the US Sentencing Guidelines (which went into effect in 1987).

The Guidelines are a mechanistic system that converts not just the defendant’s offense of conviction but related conduct into an “offense level” that goes from 0 to 43. Many of the facts related to that calculation comes from judges, not juries, and can even include conduct for which the defendant was acquitted at trial. The Guidelines do a similar thing with a defendant’s criminal history, placing them in a Criminal History Category from I to VI. Where those two values meet is the Guideline range, where the sentence is supposed to be imposed.

Starting in 1987 judges, for the most part, were required to impose sentences within that range (exceptions were largely controlled by the Guidelines, too).

From the get go, defense attorneys argued that the Guidelines (and various state equivalents) violated the Sixth Amendment because they increased punishment for a defendant based on facts beyond those found by a jury (or admitted during a guilty plea). Judges finding facts, the argument went, shouldn’t be the basis for ratcheting up punishment. Courts weren’t interested, however, and the Guidelines helped to drive the country’s overincarceration problem for the next two decades.

Things started to change in 2000, when the Supreme Court held that a New Jersey statute that allowed a judge to increase the statutory punishment for a defendant based on a judicially-found fact violated the Sixth Amendment. Ginsburg was in the majority in that case, but the cause of the revitalized Sixth Amendment was really championed by her opera buddy, Justice Scalia. With that case in hand, defense attorneys once again began to argue that the Guidelines were unconstitutional. Now the issue was whether an increase in those Guideline ranges were an increase in the statutory maximum for a particular offense.

Nothing came of those arguments until 2004, when the Supreme Court decided Blakely v. Washington. Blakely involved a sentencing guideline scheme in Washington state that was very similar to the federal Guidelines. In a 5-4 decision, the Court held that those guidelines violated the Sixth Amendment. Notably, the Court didn’t prescribe any kind of remedy, instead remanding the case and letting Washington deal with it. Ginsburg was, again, in the majority.

After Blakely it was only a matter of time before the Court had to consider what this all meant for the federal Guidelines. In 2005 the Court finally dealt with the matter in United States v. Booker. The facts of the case lay out the starkness of the issue – Booker was convicted of a drug offense that carried a statutory range of 10 years to life in prison. His Guideline range, on the other hand, bulked up by judicially found facts about the amount of drugs involved, was 30 years to life in prison. Two decades in a cage is a hell of a thing to require based on facts found by a single person (and not even beyond a reasonable doubt).

Booker, as it turned out, was actually two decisions for the price of one. In the first, the 5-4 majority followed Blakely and held that the US Sentencing Guidelines violated the Sixth Amendment. In the second, a different 5-4 majority held that rather than leave it at that and let lower courts and Congress sort it out, the appropriate remedy to resolve the issue was to strike down the statutory language that made the Guidelines mandatory in the first place. Thus were the advisory Guidelines born, which we’ve had ever since.

What made for these two conflicting opinions? After all, most of the majority for the remedial opinion were dissenters from the other opinion (led by Justice Breyer, who helped draft the initial Guidelines). It was Ginsburg – she was the fifth vote in both majorities. But in a rare instance of opaqueness, she didn’t write an opinion explaining her decision. Sure, she joined the ones written by Stevens and Breyer that were the majority opinions, but she didn’t write separately to explain why she had a foot in both camps.

In a career that made a lot of impact on peoples’ lives, Ginsburg’s decision in Booker may be her most important. Since the Guidelines became advisory in 2005 hundreds of thousands of people have been sentenced as part of a system she basically created (for some idea of the numbers, in its last report to Congress on the impact of Booker, the Sentencing Commission noted that more than 85,000 defendants had been sentenced in the past year). Yet there was no sweeping opinion, no reading from the bench to spur Congress into action. Just a decision, made thoughtfully I’m certain, but without any transparency.

Are we – or, should I say, are federal criminal defendants – better off with the advisory Guideline scheme rather than whatever else Congress might have created? Hard to say, given how little experience the system has with juries finding sentencing facts. I will say that judges have seized their authority under Booker (and its progeny) to vary from and, in some cases, completely ignore the “advice” provided by the Guidelines. Still, they exert a kind of gravitational pull at sentencing and are pretty central to most proceedings. It’s the irony that gets me, I suppose. Ginsburg was arguably the Court’s most public face over the past few years. That she has had such a major impact without doing much more than casting a vote seems out of whack, but such is life. And the law.

A Mountaineer In the Duke of York’s Shire

Back in the spring, when the first blush of the pandemic shut things down around the world, one of the “holy shit, this is serious” moments was when the sports world ground to a halt. In the United States the big deal was when the NCAA men’s basketball tournament, March Madness, was cancelled outright. In Europe, soccer leagues shut down one by one across the continent.

At the time, there were serious discussions about what that meant for the 2019-2020 season that was in the home stretch. Would it be completed later, keeping in mind that the 2020-2021 season kicks off in August? Would the standings be set and stone at the time things were halted, even though the season wasn’t complete? That’s the path the French leagues took, setting final tables based on points earned per game. Would the powers that be simply declare things over, void, and disappear the entire season? That’s what the Dutch leagues did.

In England, the debate about how, and whether, to finish the season centered around Liverpool FC, which were well on their way to their first Premier League title and first top-flight championship in three decades. I was more interested in what was going to happen in the Championship, England’s second tier, where Leeds United topped the table at the time things shut down. It had been 16 years since Leeds had been in the Premier League and I’d been rooting for them to get back all that time.

Why? How does a person born and raised in West Virginia come to root for a team in Yorkshire?*

While I played soccer growing up, it wasn’t really until I was in college that I became a fan of the game. Part of that was due to the 1994 World Cup, which was hosted in the United States and all over TV. Major League Soccer was an outgrowth of that, too. But what really captured my attention was the one-game weekly broadcasts of UEFA Champions League games on a regional sports station. In the Champions League the top teams from all over Europe (each nation has its own league – even each of the UK nations have their own!) from the previous season play to crown a continental champion.

That’s where I first met Leeds United.

LUFC Logo

At the time I didn’t know anything about Leeds or the county, Yorkshire, when the city is located. What I saw was a team that appeared to be overachieving. It appeared to be doing it with young talent that was largely British or Commonwealth based (it was a little odd for a newbie to see English teams primarily made up of players from around the world – I hadn’t learned about the Bosman ruling yet). In other words, they looked like underdogs and I’ve always had a soft spot for underdogs. So they won my support.

In the years since I’ve developed a little bit of an affinity for Leeds and Yorkshire. Two of my favorite bands are from Leeds, The Tangent (or at least its main man, Andy Tillison) and Kaiser Chiefs. The latter is even named after the prior club of former Leeds captain Lucas Radebe! And Yorkshire has a history as one of England’s major producers of coal, so it resonates with my West Virginia roots.

Now, at the time, I didn’t know that Leeds United had a glorious history, particularly in the mid-1960s and early 1970s  when they were one of England’s elite (around the same time progressive rock ruled the land – coincidence?). From the time I was in law school until just about the time I started my current gig in 2002, things were like that again, with the team finishing in the top five for five consecutive seasons.

Then the wheels came off. The team had made some bad financial decisions, gotten overstretched on credit, and had to sell some of its best young players. The bottom fell out and the team was relegated to the Championship and then, three seasons later, to League One (which, confusingly is England’s third tier – the equivalent to AA baseball). They bounced back to the Championship at the start of this decade, but were frustratingly underachieving, until crashing out in the promotion playoffs last year.

Which is what made the pandemic pause so nerve wracking. This season it looked like promotion was theirs to take. Would the interruption mess with the team’s chemistry? Would a compressed schedule put too much stress on Marcelo Bielsa’s thin squad? Would there even be any more games? Thankfully, the rest of the season played out and the right result ensued:

BBCLeedsHeadlineNYTLeeds

Had the pandemic not swept along, my wife and I had planned to visit England and Scotland in the spring and see Leeds play at Elland Road. We might have wound up at the game where they clinched promotion. Alas, it was not to be. At least the promotion part happened! “Marching On Together” as they say.

* I should note that I do my soccer loyalties like some people do publishing rights – for the United States and then for the rest of the world. I root for DC United in Major League Soccer. Who suck so bad right now they’re giving me all the soccer pain I can handle.

The Big Black Hole In the Room

Thanks to Zinio I’m finally getting a chance to catch up on the issues of Prog magazine that I’ve missed during the pandemic. One of them, from June, has yet another of Prog’s famous lists (they love their lists over there), this one of the 50 most “influential” progressive rock albums of all time. As the intro makes clear, it was “not a list of the best prog albums of all time,” but rather a list of albums that are “pivotal in the ongoing development of progressive music.”

As with most lists, the best thing about it is that it can be a jumping off point for discussion. Nothing like this can ever be “definitive.” With that in mind, it makes sense that the list is skewed heavily toward the late 1960s and early 1970s when prog was emerging and at its commercial peak. I was pleased to see it didn’t end there, however, with releases all the way up to 2013 making the cut. There is, however, one pretty glaring hole in the list, which is pretty odd considering that the whole revitalization of the genre that made Prog possible happened then.

I’m talking about the 1990s.

The sole representative from the 90s is Radiohead’s OK Computer (1997), which is both an excellent album and an impressive reminder that expansive, odd, and small-p “progressive” rock could still find a commercial audience. But there was a lot of other important stuff going on in that decade that the list overlooks. Oddly, in some cases.

For example, Dream Theater’s 1989 debut album, When Dream and Day Unite, makes the cut. In a way that makes sense, as DT are the founding fathers of prog-metal and where better place to start than at the beginning? But the truth was not many people heard or cared about that album when it came out. What really broke DT, and announced the arrival of prog-metal, was their 1992 release, Images and Words. It’s practically the face that launched a thousand metal-tinged proggers (who kind of dominate things these days).

But that’s just one example. Here are some other important releases that are absent from the Prog list.

The Swedish Invasion

After the 1970s, prog wasn’t dead, but (to borrow a phrase from Frank Zappa) it did smell funny. While there was a slight resurgence with the neo-prog scene in the early 1980s, it didn’t get the kind of traction as the much had in the 70s. By the end of the decade, prog was very much on life support.

Two things happened in the 1990s that helped its resurgence, what some call the “third wave” of progressive rock. The first was that technology made the recording and releasing of music less expensive and put into the hands of musicians a better chance to get their music out there. The second, the real seismic shift, was the emergence of the Internet. Suddenly it didn’t matter that you were the only one in your town who knew Peter Gabriel was originally in Genesis – you could talk with other fans all over the world and be part of a real community.

A bit part of the enthusiasm that coursed through the Net in the early years was because of several bands from Sweden who helped kick off the third wave.

First up was Anglagard, whose debut album Hybris (1992) sounded like it was dropped out of 1973 via a time warp:

Hybris

It’s glorious, lush, mostly instrumental symphonic prog with lots of 70s hallmarks (Mellotron! Minimoog! Flutes!) and completely out of step with what was popular at the time. It also laid down a marker – people are still making this kind of music (and, to a certain extent, people are still buying it).

Anekdoten’s debut, Vemod (1993), falls into the same boat, although it takes its cues more from Wetton/Bruford era King Crimson than Anglagard does.

Beyond both of those, 1994 saw the release of The Flower King, a solo album by guitarist/vocalist Roine Stolt. Stolt himself wasn’t new – he was a teenage wunderkind in Kaipa during the 1970s – but this album was a return to a basic, very Yes-inspired, symphonic prog sound. Of course, it’s also essentially the debut album of The Flower Kings, who continue to crank through to this day. Stolt went on to lead that band while working with all sorts of other people in bands like Agents of Mercy, The Tangent, and Transatlantic. The Flower Kings itself brought the world the extraordinary bassist Jonas Reingold (and his band Karmakanic) and vocalist Hasse Brunnison’s band.

What all these bands have in common, and why they’re influential to the modern prog world, is they undeniably claimed the idea that “progressive rock” is as much a style – indebted to the original bands of the 1970s – as it is an idea or a rallying cry. There’s rock that progresses – continues to push the boundaries, wherever they may be – and there’s progressive rock as a label. These bands represent the real genesis (so to speak) of that modern, nostalgic prog path.

A Reinvigorated Old Guard

While prog itself might have struggled in the 1980s, that didn’t mean that all prog bands did. Some changed their sound up and had a hit (Yes), while others did the same and became one of the biggest pop bands in the universe (Genesis). That transition wasn’t so smooth for other bands, however, and they limped into the 90s like lost ships at sea.

After vocalist Pete Nichols left, IQ struggled on with a couple more albums that tried to tack into a slicker, more direct sound, with no real success (a couple of good tunes, though). In 1993, Nichols came back and the band jumped solidly back into the neo-prog territory they helped to chart with Ever.

Ever

It wasn’t the only example of a more establish act returning to their more progressive glory days.

Marillion had tried to go a little more pop on Holidays In Eden, but, again, it didn’t really work out (again, several good tunes, though!). As their relationship with their label deteriorated, then went and produced a sprawling concept album, Brave (1994). Not just a statement of intent to do whatever they wanted, it marked a shift in their sound where they started to emphasize atmosphere and mood more than juicy solos. You can hear that vibe everywhere from Gazpacho and Airbag to Pineapple Thief and Porcupine Tree (parts of it, anyway).

Not to be outdone, 1995 saw the roaring back of one of the classic 70s bands when King Crimson released THRAK. It, too, was somewhat backwards looking, melding the intricate dual guitar lines of the 1980s lineup with the thunderous power (two drummers! two bass-ish players!) of the 1970s. It arguably introduced Crimson to entire new audiences from the nu-metal and related scenes.

A New Brand of Odd

“What is prog?” is the evergreen debate on the Internet. If it means more than “stuff that sounds like the 1970s” – and it does – then you have to have some room in your array of influence for bands that might not fit the prog mold, but are just weird enough to embody the spirit of the genre.

Is Primus prog? Don’t know, don’t care, but there’s definitely some prog DNA in there. Their 1991 breakthrough Sailing the Seas of Cheese shows influences of Rush and King Crimson, some astounding musicianship, and just plain odd stuff that pushes it outside the mainstream. The same could be said for The Flaming Lips, who rang out the decade with The Soft Bulletin (1999), a skillfully layered collection of nouveau psychedelia. Arguably they’d go bigger (and proggier) later, but still.

Then there’s Talk Talk, who released their final album, Laughing Stock, in 1991. Much as I have tried this is an album I just can’t get into, but it’s been beloved by a generation of musicians that have come after it for its abstract, arty meanderings. I’ve read that, for some, it’s the origin of post-rock. If spawning a new genre isn’t influential, I don’t know what is.

Finally, in any discussion of the modern progressive scene you have to make room for jam bands. Not every one of those bands gets proggy points, but so many of them take such a diverse range of influences and throw them together with live improvisation that it’s hard to imagine something more progressive. While the scene dates back to the Grateful Dead, what really made it clear that a new generation would jump on that train was the success of Phish. While they’re most known for live shows (of course), their studio albums are worth note, too.

Rift

I’d put 1991’s Rift up there as their proggiest effort – it’s even a bloody concept album!

I’ll admit that I might be a bit sensitive when it comes to 1990s prog. This was the era, while I was in college and law school, that I rediscovered progressive rock – found out that it wasn’t dead and that the 1970s scene was broader and deeper than I’d ever imagined. Even putting that to one side, though, I think even the folks at Prog would admit that it wasn’t quite the nearly-barren wasteland it’s list portrays it to be. Not every album I talk about above should have made the cut, but at least a couple should have.

Why Do I Love Bad (Fictional!) Lawyers?

Popular culture is full of lawyers. As both a lawyer and a writer, I apologize for that, but the legal profession is a pretty rich vein of drama (and even comedy) for writers. There’s crime and deceit, business dealings and family squabbles. The law touches every area of life (for good or for ill), so it’s a great way to examine life itself.

There are plenty of heroic lawyers in pop culture. Perry Mason’s having a kind of resurgence with the new, gritty, noir-flavored HBO series. Atticus Finch is a popular choice for crusader who launched a thousand earnest legal careers.* There are countless others, of course, lawyers who fight for the little guy (or gal) or justice or law in the abstract. They’re fine, of course, but when you always win, things can get kind of stale.

Which is why some of us – or maybe just speaking for myself here – have more of an affinity with the legal bad boys, the ones who work on the edges of professional ethics, for whatever reason. There’s a quite a rogue’s gallery and I pretty much love every one of them. They’re the patron saints of the legal profession, in my eyes.

Front of mind at this point can be none other than Jimmy McGill, aka Saul Goodman, of Breaking Bad and his own prequel spinoff, Better Call Saul (which is better than the original, I think):

Saul2

The “patron saint” thing is kind of a joke, but the fact that Saul is about a struggling criminal defense lawyer makes it instantly more relatable to me, even if I never find myself nearly dead in the desert hauling two duffle bags full of drug cartel money (let’s hope). He is a sleaze, no doubt, and it eventually gets him into serious trouble, but at least early on he’s willing to use that sleaze to help the underdog and generally fuck with “law and order.” While I can’t say I approve of Jimmy’s methods, I appreciate the attitude. It’s one that sustains long-time public defenders like me.

Of more long standing in the pantheon is the one, the only “law talking guy,” Lionel Hutz:

Hutz2

Voiced by the wonderful Phil Hartman on The Simpson, Hutz is just a master class in legal incompetence. He marvels at how useful law books can be. He changes the terms of his retainer by marking up his own business cards. He shudders at the otherwise happy thought of a world without lawyers. He requests “bad court thingies.” And, most notably, he’s always looking out for himself:

Deep in the heart of every lawyer lurks the certainty that, if nothing else, they’re better than Hutz.

He’s not the only cartoon lawyer with a hold on my heart. How can I not love Harvey Birdman?

Harvey

Harvey’s less an idol for his legal acumen that he is for his ability to keep a calm head on his . . . wings, while everything else falls apart around him. It’s an important skill for an attorney, especially a criminal defense lawyer. Besides, who wouldn’t want to have an eagle for an assistant?

But if we’re going old school, there’s one sleazy lawyer that was lodged in my brain long before I was anywhere near a law school – Steve Dallas:

SteveDallas

Looking back I’m a little appalled at my love for Bloom County’s legal scholar. He’s a loud mouthed, rude, misogynistic, frat boy – precisely the kind of person I’d loathe if I met him (or saw him online) today. I mean, he did have cool cars, so that counts for something. And he was, come to think of it, the only professional in Bloom County (among the regular cast, at least). He had credentials and never let anybody else forget it. Like Harvey, he also recognized the value of good help:

SteveOpus2SteveOpus1

When it comes to all these guys (and they are all guys – I’ve noticed) I’m reminded of that idea, from Tolstoy, that all happy families are the same, but dysfunctional ones are unique in their dysfunction. I think that’s true for fictional lawyers, too. Good-hearted crusaders are important and uplifting, but they’re not always much fun. Bring on the bad boys!

* Years ago I went to a legal writing seminar where, for the session on issue spotting, we used the facts of To Kill a Mockingbird. A mere 45 minutes later he was facing a lengthy ineffective assistance of counsel charge.

New Tune – “Dance Party in the Pirates Courtyard”

Last spring the Fourth Circuit held an oral argument session in Charleston, South Carolina, rather than its usual home in Richmond. I had to go down there to argue a case, so I took the wife with me and we made a little vacation of it. Charleston is a neat old city, full of lots of history and architecture.

One day, while walking around, we passed this narrow passageway:

PiratesCourtyard (Small)

Something about the sign grabbed me. It wasn’t for a restaurant or bar and wasn’t any kind of historical marker. It was just a sign designating this places as Pirates Courtyard.

Almost immediately I got a riff in my head. Being that musical inspiration is usually fleeting for me, I did well to keep it going until we got back to the hotel. I jotted down the idea and, at the top of the legal pad with the notes, wrote “Dance Party in the Pirates Courtyard.” Usually I pick a title from my long list of nonsense phrases I keep handy just for that purpose, but this seemed to fit the riff and gave me some idea of what might come next.

After many months, and some good lockdown time, I’ve finally completed it. Does it really conjure a “dance party”? Probably not. It’s too slow, has a “chorus” in 7/4, and has an ambienty piano bridge. But I like it and it’s my song and I’ll call it whatever the fuck I like!
Anyway, here it is – hope you enjoy: