In Praise of Gregg Berhalter

When Gregg Berhalter was announced as the head coach of the US Men’s National Team in 2018 that decision was not greeted with a lot of enthusiasm. Gregg’s managerial career consisted of a couple of non-descript years in Sweden followed by a solid run in charge of the Columbus Crew, losing MLS Cup in 2015 (at home) to the Portland Timbers. There were other big, international names that were allegedly in the mix, so this pick seemed underwhelming. It didn’t help that Gregg’s brother Jay was one of the higher ups in US Soccer at the time, leading to lazy charges of nepotism in Gregg’s hire. That Gregg had appeared 44 times for the USMT as a player, but never made the field during the World Cup where he was on the roster kind of said it all.

Gregg’s hire came in the shadow of the USMNT failing to qualify for the 2018 World Cup. His ultimate success will be judged solely on whether we qualify for the 2022 tournament in Qatar and, if we do, how well we do there. Up to this summer there hadn’t been a lot of meaningful games for Gregg to show fans what he can do at the helm. But, oh boy, has he had a very good summer.

Like everything else, the pandemic wreaked havoc with the international soccer calendar. League seasons that were suspended in early 2020 finished up later than usual that year, leading to the cancellation of major 2020 national competitions and the late start of the next club season. That season then got compressed so the delayed summer competitions could happen. So this summer has been packed solid with the Copa America and European Championships taking place on a year delay, not to mention the Olympics. And then there’s World Cup qualifying, which gets underway in September and will include schedules with three games played in two weeks (usually it’s only two).

For CONCACAF, the regional federation to which the United States and the rest of North and Central American and the Caribbean belong, its championship, the Gold Cup, was already scheduled for 2021. But the inaugural finals of the Nations League, a new tournament meant to fill in the gaps between World Cups and Gold Cups, was supposed to have taken place in 2020, but got pushed back. So, for Gregg and the USMNT this summer meant two games in the Nations League final, the Gold Cup, and then the start of World Cup qualifying, all with players who have been at it pretty much nonstop for the past year or so. Oh, and CONCACAF moved the Gold Cup back a month so as to not compete with Copa America and the Euros, pushing it into the preseason for a lot of European clubs.

Thankfully, Gregg had a plan. Step 1 – take the best team possible into the Nations League finals with the intent of winning a trophy. This would bet the core players, most of whom play in Europe. It would be the first meaningful chance to see them play together, in anticipation of a meeting with full-strength Mexico in the final. Step 2 – take a younger, mostly MLS-based team into the Gold Cup, with the intent of discovering roster depth that will help us when World Cup qualification begins, while giving the first-team guys some rest and letting them start preseason work with their club teams. Go as far as you can in the tournament, but don’t expect to win it, especially if we came up against Mexico, again. Step 3 – start World Cup qualifying with the strongest team possible and, hopefully, some momentum.

Well, as for Step 1 – this happened:

After a less than impressive semifinal win against Honduras, the US beat Mexico 3-2 in extra time to lift the first Nations League trophy. It didn’t go completely to plan – injuries kept the preferred Best 11 from playing together much – but you can’t argue with the results. Off to some vacation for most of those guys, on to the Gold Cup.

The Gold Cup was never going to be beautiful. The only real holdover from the Nations League roster was midfielder Kelly Acosta. More than a dozen players had appeared less than ten times for the USMNT. The guys called in from Europe were basically trying to make moves to new clubs. How much talent did this group have?

Enough to blow through the group stage, at least. By which I mean we won all three games, even if two of them were a lot closer than you’d like them to be. Rosters were rotated, players were given chances to sink or swim. Nothing convincing but, again, the results were coming. We were probably outplayed for large parts of the quarterfinal against Jamaica and the semi against Qatar (here as guests and reigning champions of Asia), but the result in the end was the same: 1-0 to the US.

But remember, the goal here isn’t necessarily to win, but to learn. What did we learn in all those games? That New England goalkeeper Matt Turner should be in the running for the top job when qualifying starts. That defender Miles Robinson and midfielder/defender James Sands are both worthy of the qualifying roster. The defensive depth we were worried about is here and it’s pretty good. The attack not so much (Matthew Hoppe’s enthusiasm aside), but we’re top heavy with attacking talent with the first-choice team. We’ve also learned that Gregg can make great use of substitutes – keeping in mind that FIFA is keeping 5 substitutes (as opposed the usual three) until at least the next World Cup is over.

But we want to win this thing, right? Over Mexico for the second time this summer? You’re damned right we did:

It should be noted that, due to injuries and Olympic duty, Mexico was missing a few first-teamers, but they had a lot more of their “A” team on the field in the Gold Cup final than we did. We won anyway. Was is pretty? No. Was is great fun to watch? Absolutely.

I’d like to say I was a Gregg booster from the beginning, but that would be a lie. I wasn’t as down on him as some other folks, but I wasn’t thrilled. As we waded through lots of friendlies with questionable roster selections and what not I wondered if he was up to it. Now I’m ready to buy in completely. Gregg might not do it the way I want him to, but his job is to get us back to the World Cup and regain are spot on top of CONCACAF.

We’re halfway there!

One Album to Rule Them All!

At my dayjob office there’s a whiteboard and bulletin board back near the break room. After a few years, one of our administrative folks has found its best use – asking questions of the staff about the important questions in life. Things like “what’s your favorite ice cream flavor?” or “if you could wake up one morning an expert in anything, what would it be?” Now, she’s come up with a question that, as she correctly warned me, is a real stumper:

If you could only listen to one album for the next year, what would it be?

Between my musical geekiness and my penchant for over thinking things, my mind’s been working overtime since the question came up. I think I’ve come up with a decent answer – here’s how I got to it.

It quickly occurred to me that there are two questions you have to ask before you start evaluating answers for a question like this. It has to do with getting the most out of whatever you select.

The first is, do you go for something that’s a stone cold favorite or something more mysterious? The case for the favorite is obvious – you want to listen to something you like, if it’s all you’ve got for a year. But there’s also a risk – would listening to any favorite album for a year cause you to sour on it? Get so sick of it you’d never want to hear it again? Something less familiar, or more dense, might be more rewarding over multiple listens.

I didn’t let this issue detain me very much. While I toyed with the idea of choosing something like Brian Eno’s Music for Airports (Ambient 1), as its details would surely be sharpened by lots of repeated listening, ultimately I decided that if I have to listen to only one thing for a year, I want it to be something I really love. A lot of my favorite albums I’ve known for years, if not decades, and I’m not yet tired of them. It’s a risk I’m willing to take.

The second, and more difficult question, is one of quality versus quantity. Favorite albums might not be very long, might not provide the best bang for your buck, so to speak. But longer ones might not be as good. The best example of this in my collection, probably, comes from Zappa. My favorite Zappa album is probably Roxy & Elsewhere. While originally a 2-LP release, we’re talking about Frank’s 1970s stuff, so the sides are short and it sits comfortably on a single CD. Läther, on the other hand, is a 3-CD release of what was originally intended to be an 8-sided album. It’s crammed full of music, full of variety and skill, even if it’s not my favorite. Which to pick?

In the end, I decided to go with the “more is more” philosophy, at least to an extent. It was made easier by the fact that bands in the 1970s would produce fairly short (by standards of the CD era I grew up in, at least) studio albums, and then release multi-disc live albums. Those albums often cover a lot of ground and sometimes do it with versions that improve on the original studio recordings. With that in mind, it came down to two choices.

The first was Yessongs, the first live Yes album.

This is one of those “if you only own one album by a band, buy this one” kind of albums. Originally three LPs (it fits on two CDs) and recorded after Close to the Edge, it really captures the band at its prime. It includes all three songs from that album, as well as most everything important from Fragile and The Yes Album. More than that, lots of the live versions of those songs are bangers. What’s not to love? Well, a couple of things. First, it doesn’t touch at all on either of the band’s first two albums, which have some gems. Second, the main thing missing from Fragile is “South Side of the Sky,” which is my favorite track on that album. Finally, there’s a lack of Bill Bruford on this release. Drummer Bruford left Yes after Close to the Edge to join King Crimson and he’s only on a couple of tracks. His replacement, Alan White, took over the drum stool for good (having worked with some nobody named John Lennon previously), which is saying something for a band whose membership rivals Spinal Tap (or King Crimson!) for turnover. He’s a great player, but I like Bill better and these are “his” tunes.

The other contender was another live album (originally a double LP, still a double CD), Seconds Out by Genesis.

As you might expect from the title, this is the second live album from Genesis and is the swan song of the prog era. Peter Gabriel was already gone and Steve Hackett was on his way out the door and the band was about to reshuffle into the pop/prog trio that conquered the world in the 1980s and 1990s. It focuses on the albums released since Live, but that’s still prime real estate – Selling England by the Pound, The Lamb Lies Down on Broadway, A Trick of the Tail, and Wind and Wuthering. It also dips into the further past for the main oversight of Live – the side-long epic “Supper’s Ready.” That starts off disc two with a bang that never lets up – side four of the original LP release contains the definitive versions of “Cinema Show” and “Dance on a Volcano/Los Endos.” That whole disc is one of my very favorites. Down sides? Well, there’s only one track from Wind and Wuthering, which is odd since it was the newest album at the time. And, although it’s apocryphal to say that Hackett was “mixed out” since he was leaving the band, it’s not the strongest of his albums with the band.

In the end, there was only one solid choice – Seconds Out. Much as I love Yes, Genesis may be my all time favorite band (certainly during the Gabriel/Hackett years) and if I could only listen to one thing for a year, wouldn’t that be it?

Some New Music: In the Year of the Plague

I will not lie – there’s been one thing I’ve really enjoyed about the past year of pandemic fucked life. I’m lucky in that I’ve been able to keep working from home during the whole thing without any real impact on my daily work. One side effect of that is that without commuting time on workdays, I had a lot more time on my hands.

What a boon that must have been for creativity! So much more time to write!

Yeah, well, about that. Whether it was the constant creeping doom around the world or just the fact that Widows of the Empire and Heroes of the Empire are being difficult, I didn’t turn all that extra time into a new books. Not yet, at least.

What I did do was make some music.

And here it is. All of these songs were started or finished (in most cases both) during 2020. Not many are actually pandemic related, but just being able to use the extra time to quickly follow up on ideas and moods definitely played a role. With a couple of exceptions, none of them have been uploaded until now.

Not all of these songs fit the Pandemic Year mold. “Shadow Weaver” and “A Vulgar Surplus” both developed out of ideas I had sketched out in 2014 and rediscovered last year after I moved some old projects into my newer DAW. Ironically enough, “In the Year of the Plague” itself went through several fits and starts, with the final version only taking shape this spring. Maybe that says something about the long tendrils of our COVID year. Or not.

A couple of other notes. “The Laminated Llama” arose from an experiment with the SynthOne app on my iPad. “Please Scream Inside Your Heart” is my first experiment with sound collage, with a nod toward “The Waiting Room” from The Lamb Lies Down on Broadway. It was inspired by news reports about a reopening Japanese theme park’s advice for having COVID-preventative fun. The samples are taken from various loop libraries and the BBC’s sound effect archive, along with some insect sounds recorded by me at Babcock State Park on a hike.

This isn’t a collection of doom and gloom. That’s lurking in a lot of the sonic crevices, but I hope that it’s also about finding some fun and beauty in the face of a world in crisis. I had fun putting these tunes together. Hope you get some enjoyment listening to them.

The artwork here is by frank_to_artist on Flickr. Used under a Creative Commons 2.0 license. Modified by yours truly.

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.

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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.