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):

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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:

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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:

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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:

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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.

Weekly Read: Freedom’s Detective: The Secret Service, the Ku Klux Klan, and the Man Who Masterminded America’s First War on Terror 

This is an interesting book (more interesting than compelling, sadly, given its detached, journalistic style) to think about in these times. I actually read it a couple of months ago, but it’s crept back to relevance over the past couple of weeks. How could it not, given that it tells the story of the United States’ first concerted effort to deal with racial terrorism, which also gave rise to an unprecedented expansion of police power and tactics?

It’s the story of Hiram C. Whitley, who from 1869 to 1875 was the chief of the Secret Service. At that time, the Secret Service’s primary job was dealing with counterfeiters (it’s Presidential protection role didn’t come until ??) – which it still does, by the way (one of my great Fourth Circuit victories involved a counterfeiting case). When Whitely took over he broadened the Service’s mandate (via bureaucratic slight-of-hand and without Congressional authorization) into a broader criminal investigative unit with its sights trained the Ku Klux Klan.

Not that Whitley was particularly a crusader for human rights. Before the Civil War he did some work as a slave hunter and he essentially bought his first child. During the war he led a Union regiment in New Orleans with such brutality that his men nearly mutinied. He was a shameless self promoter who wasn’t above working outside the law when he thought it was justified. He tortured prisoners. He arrested men and executed searches without warrants. He was even involved in a Watergate-style burglary and scandal later in his career.

His most lasting contribution, however, is introducing the concept of the undercover work to American law enforcement. The idea that you had to use bad people – or at least good people pretending to be bad – to catch other bad people was scandalous. In fact, the book recounts how in one counterfeiting trial, where the case was built on undercover work, the judge actually gave the jury a cautionary instruction about how unreliable undercover officers were! If only we could get an instruction like that now.

If anything, Whitley seems like the archetype of a character we’ve become familiar with over the years from all kinds of police fiction – the cop who can’t follow the rules, but it still celebrated in the end because he gets the bad guys (a trope that’s getting some fresh looks these days). You can’t argue that Whitley’s targets were evil – not just the Klan by political machines in New York City were targets – but, as this review points out, none of those resulted in convictions, partly due to Whitley’s overreaching. One of my chief criticisms of the book is that author Charles Lane doesn’t really examine what Whitley’s legacy was or how he was an exemplar of lots of cops that came after him.

That’s why the book had come back to mind in the wake of the police killing of George Floyd and the related protests. As a society we’ve been conditioned to give cops the benefit of the doubt (there’s even a “good faith” exception the exclusionary rule for Fourth Amendment violations), mostly on the expectation that if they cross the line they’ve got a damned good reason. But lines are drawn for a reason and not everybody the cops cross the line to get are “bad guys” and, even if they are, they deserve the due process of the law, too.

I won’t say we can draw a direct line from Whitley’s abuses to Derek Chauvin’s knee on George Floyd’s neck 150 years later, but there are definitely echoes there. If Whitely really was “Freedom’s Detective,” it’s worth wondering what kind of freedom it was and whether, too often, it’s been the freedom to behave badly in the name of doing good.

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Dear US Soccer – Please Shut Up and Settle

I practice criminal law, criminal defense to be precise. I’m glad I do, because there’s a clarity of focus in it that can be a bit hazy in other legal areas. My job is to do the best for my client in court, period – whether that means an acquittal, a better sentence, or (as in my practice, for the most part) a successful result on appeal. Very very rarely are the other considerations to worry about. That the public doesn’t like the process is irrelevant – I’m trying to keep my guy out of a cage.

Civil law is different, particularly civil defense. People who get sued are often really determined to prevail on court, to prove to the world that they’re right. But part of their lawyer’s job is to suggest that winning in court is not necessarily going to solve their problem. A criminal defendant is rarely made worse off by a bold defense in court. A civil defendant, by contrast, particularly a corporation without any real personality – well, sometimes the big machine gets it right:

WinningMove

That went through my head when I read about US Soccer’s pleading last week in its ongoing litigation with the US Women’s National Team (USWNT) over equal pay. I don’t know enough about employment law to know if the arguments made in it are legally sound or have a chance of success, but I’ll assume they do. Question is, what does US Soccer think a “win” would look like at this point?

This article at SI breaks down the federation’s latest argument, which basically has two parts. The first is one familiar to anyone who has brushed up against the legal system – non fregit eum, et emit eam (aka “you broke it, you brought it”):

Stolzenbach first asserts that the fundamental flaw of the players’ legal theory is that they compare a pay system that their own labor union, the U.S. Women’s National Soccer Team Players Association, negotiated with the pay of players who aren’t in their bargaining unit—players on the men’s team.

To that end, U.S. Soccer stresses that courts have consistently rejected attempts by unionized employees to compare their employment terms to employees who are outside of their bargaining unit.

This is the kind of procedural argument I’d expect any lawyer to make. It appears to be the equivalent to how plea bargains are treated in criminal law – once you sign one, you’re stuck with it. Assume A and B are charged in an indictment and A decides to get a good early plea bargain. B sticks it out and, later, either gets a better deal or goes to trial and is acquitted. Can A back out of his plea? Not a chance. Courts routinely hold that so long as you weren’t misinformed, mistaken, or misled into making a guilty plea then you won’t be able to back out of it later. Whether this is a winning argument in the context of the USWNT case I don’t know, but it seems fairly standard.

The other one, though . . . yikes. It has to do with whether the job of USWNT player is “roughly equal in terms of effort, skill, and responsibility” to that of US Men’s National Team (USMNT) player. It was bad enough to point out that in terms of “responsibility” that the USWNT may not have the same earning potential as the USMNT (while eliding the fact that the USMNT choked and missed out on its last big earning opportunity – the 2018 World Cup).

From there it got worse:

Stolzenbach attempts to supplement this argument, even wading into some territory that could be described as misogynistic.

He insists that men’s players face much more demanding working conditions and thus have fundamentally different—and, by implication, harder—jobs. He contends that men’s players encounter ‘opposing fan hostility’ in road environments, particularly in Mexico and Central America, that is ‘unmatched’ by anything experienced by women’s players. Stolzenbach stresses that the women don’t play in Mexico, Central America or the Caribbean when trying to qualify for tournament play. Further, Stolzenbach maintains that ‘science’ confirms there are different levels of speed and strength required for men’s and women’s players. He insists it is not a ‘sexist stereotype’ to recognize this distinction.

 

Now, if US Soccer was fighting to stay out of jail I might question this strategy, but you do what you have to do. But at the end of the day, US Soccer is going to have to continue to do business with the USWNT (and the USMNT, who have publicly supported the drive for equal pay) and, more importantly, the American public. Why on Earth would they want to denigrate about the only good thing coming out of American soccer at the moment?

Let’s recap. The women are undefeated in more than a dozen matches, just swept through the She Believes cup against quality competition, are the two-time defendant champions of the world (with two other World Cups prior), and are gearing up to try and win their fifth gold medal at this summer’s Olympics. By contrast, the men failed to qualify for the last World Cup (to be fair, so did traditional powers Italy, Chile, and the Netherlands), their furthest progression in the Cup came before the Second World War, and they’ve ceded the pole position in the region to Mexico. Oh, and the Olympics? The men haven’t qualified since 2008.

Whether those comparisons are apples to oranges or not is irrelevant. In the public eye, US Soccer has precisely one broadly loved group whom people outside of soccer fanatics care anything about – the USWNT. Building the game in the United States – at all levels, men’s and women’s – requires public support. Pissing off a large swath of the public with arguments like this – even if it’s a winner legally – is a long-term losing proposition. It’s not just my criminal law mind that thinks this is a bad play (in response to this tweet):

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Indeed, the backlash from this filing has been swift and fierce. US Soccer eventually apologized, but the players weren’t buying it. The president of the federation resigned and, apparently, the law firm responsible was fired.

Ultimately, as to what comes next, I think Alexi Lalas has it about right:

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This really isn’t a legal fight. It can’t be won in a courtroom. It’s only going to be won in the court of public opinion and that’s going to require some serious groveling on US Soccer’s part. So, let’s get to it, US Soccer – shut up and settle this thing already!

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What Censorship Isn’t

For a while, back when The Water Road was finished, I tried to shop is around to agents as a first step in trying to get it published. The entire process put me off (a topic for another day) and I decided to self publish, a decision I’ve been very happy with. Still, if I’d known I had some kind of Constitutional right to a publisher, maybe I would have stuck with it a little longer.

The big literary news last week involved a new memoir by Woody Allen. Allen is, of course, a legendary director of such classics as Annie Hall and Sleeper. He’s also been accused of sexually abusing his daughter, Dylan. It doesn’t help perception that he wound up marrying a woman who was practically, if not technically and legally, his step daughter. Oh, and Manhattan, too. Suffice to say, in a #MeToo world, Allen has become a bit of a pariah.

It’s not surprising, then, that when Hachette Book Group announced the release date for Allen’s memoir Ronan Farrow, Allen’s son and one of the leading #MeToo journalists, decided to cut ties with the publisher. More surprising was that, a few days later, there was a walkout by a bunch of Hachette employees over the memoir. As a result, late last week, Hatchette announced it would not be publishing Allen’s memoirs after all. The rights revert to Allen, who’s free to find another publisher or jump into the world of self publishing.

When the news broke last Friday it was the talk of Twitter. In particular, there were lots of people complaining that Allen was being “censored” by losing his publishing deal. Comments like this (screen capped from responses to this Tweet):

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Putting to one side any breach of contract action Allen might make against Hatchette, let’s make one thing very clear – this is not an act of censorship.

Here’s the thing – so long as you’ve got some kind of outlet for the speech you want to make, you’re not being censored. Everyone has a right to speak, but nobody has a right to use any particular platform or amplification for your talk. If the government swoops down and shuts you up, that’s censorship. If private individuals decide they don’t want to be in business with you, that’s just business.

I’m open to being convinced that actual censorship can be exercised by private companies, but I’ve yet to see an example that really went beyond a private entity wanting to not do business with a particular speaker – which the private entity has a right to do as part of its own free speech. In fact, usually when people complain about companies like YouTube or Twitter taking action against hate speech or what have you and wrap themselves in the First Amendment, they’re the ones demanding state action to compel speech (as well as generally showing a poor grasp of the First Amendment).

The bottom line is this –if Woody Allen has some sort of right have his memoir published by a major publishing house, than there are thousands (if not more) of writers out there who are being repressed daily by not being given publishing deals. One cannot be true unless the other one is, which should make things pretty clear.

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Weekly Read: “A Problem From Hell”: America and the Age of Genocide

There is no such thing as a magic word.

As a writer, much less a writer of fantasy, that’s a hard thing to remember some times. But the reason words can hold sway in fantasy is precisely because the story being told isn’t set in the real world. Here in reality, even that most magic of all words – “Abracadabra!” – only has power because the magician uttering it has convinced the audience to buy into the trick their performing (as someone in The Prestige points out, the audience wants to be fooled).

Pro se litigants in the criminal justice system often think words have some kind of magic power. If only they can find the right sentence in a Supreme Court decision then the judge will have to overturn their conviction or vacate their sentence! I’ve seen it over and over in my years practicing law. That the law is rarely that clear and that their ultimate fate is left in the hands of another human being, with all their flaws and biases, can be hard to accept.

I thought about that a lot while reading A Problem from Hell. Samantha Powers’ 2003 Pulitzer Prize winner is an exhaustive examination of how the United States did (or, more often, did not) respond to genocidal crises that arose in the 20th Century, from the Armenian Genocide during the First World War through the multiple rounds of horribles in the former Yugoslavia.

Power spends a good amount of time on Raphael Lemkin, a Polish Jew who fled at the earliest inklings of the Holocaust. He eventually came to the United States and made it his life’s work to create some international law that would address the systematic destruction (or attempted destruction) of an entire people. It was Lemkin who coined the term “genocide” and helped shape the Genocide Convention that was passed by the newly formed United Nations in 1948.

Make no mistake – this was a big deal. After the Holocaust and the Nuremburg Trials it wasn’t a given that the international community would make a fairly unified statement that genocide was a crime against humanity. And yet, the fact that there was a name for such horrors (along with a legalistic definition) didn’t magically change behaviors. Not only did further atrocities occur, but the international community, now committed to the idea of “never again,” nonetheless let it happen repeatedly.

One reason is that once the atrocity has a name, it gives the parties involved a way to argue that this particular set of killings or expulsions doesn’t rise to that level. In other words, if it’s not “genocide,” then there’s much less incentive to do something about it. That’s because, very often, there are other considerations in play than just stopping someone from doing evil. At best there’s the fact that exactly how to deal with genocide while it’s underway is always hard to figure out. In fact, Powers, for all her catalogs of what the United States didn’t do, doesn’t offer many alternatives, aside from the use of military force. That can be a hard ask in the 21st Century (not for nothing, but Powers’ book was written just as 9/11 happened and before US quagmires in Iraq and Afghanistan). At worst, the people doing all the killing are allies, even if we’re reluctant about calling them that (US policy towards the Khmer Rouge was basically driven by “yeah, but they hate the Vietnamese, too” thinking).

As a result, a lot of time is wasted on terminology. So long as perpetrators can drag out the question of whether something is genocide or not, the killings go on and their plan comes closer to fruition. Since there are no magic words, what’s the point in wasting time making sure we’re using the right one? That dance of nomenclature is one of the themes of Powers’ book.

One of the others is how bipartisan US politics was when it came to dealing with genocide. The champions of ratifying the Genocide Convention – which the US didn’t do until 1988 – came from both parties. Indeed, in classic American fashion, the final ratification wasn’t a triumph of principle, but a political gambit to deflect from a scandal.

The other thread that I found really interesting in all of these genocides is how unready the world is to believe it’s happening. Part of that is down to people just not wanting to believe something so horrible is going on. There’s an anecdote about Lemkin trying to convince a Supreme Court Justice (I forget who, specifically) that the Holocaust is happening and the Justice’s response is, basically, “I can’t believe you – I just can’t wrap my head around the barbarity of it.” Beyond that, though, there’s two related lenses through which people look at these situations that keep prompt responses from happening.

The first is that information about atrocities often comes first from people who survive them, mostly refugees fleeing to other places. Repeatedly, authorities downplay the reports of refugees until they reach such a critical mass that they can’t be ignored. While we know more and more about how unreliable eyewitness accounts can be, it can be all too easy to let prudence and caution roll over into dug in skepticism. The second is that there are repeated examples of the outside world doubting atrocities are taking place because it’s not a logical thing for the perpetrators to do. Who would risk the opprobrium of the international community by trying to kill off or otherwise destroy an entire population? But, of course, history shows that perpetrators usually get away with it, at least to a certain extent. And for true believers, what’s the big deal about after-the-fact punishment if you succeeded in your goal?

Ultimately the problem of how to deal with genocide is the problem of international law at its most acute. Put simply, international law only works as well as the nations committed to it allow it to work. There is no outside force, no world police, to enforce promises nations make to one another if those nations aren’t willing to enforce them. One of the provisions of the Genocide Convention was to allow one state to take another to an international court to stop an ongoing genocide. It took until 2019, when The Gambia took Myanmar to the International Court of Justice on behalf of the Rohingya, for that to happen and it’s still not clear whether the court’s ruling will really have any impact.

It would be great if words were magical, but the hard truth of history is that they aren’t. It takes more than a label to get people and nations to do the right thing, even if it should be as simple as stepping up and saying, “stop killing defenseless people.” That’s why something like genocide really is a “problem from hell.”

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Weekly Read: The Nonsense Factory: The Making and Breaking of the American Legal System

I’ve practiced law for more than twenty years. I’ve been a fairly regular political observer for longer than that. Which is to say that little that Bruce Gibney details in The Nonsense Factory about how messed up the American legal system has become is new to me. But having it all lumped in one steaming pile really drives how just how bad things are. We are so fucked.

Gibney really takes a holistic approach. Entire books could (and have) been written about particular problems with courts or lawyers or Congress, but Gibney brings them all into the discussion and shows how no part of what we think of as “law” – from those who make it to those who enforce it to those who judge it – is free from serious problems. I wish he had provided more concrete examples, however. Several times he’d outline a potential problem, setting up a “for example” or “as in this case,” only to move onto the next target. Granted, it’s already a long book, but some of that detail would have been nice. Still, in adopting this drone’s-eye-view he finds some threads that run from area to area that might not be obvious when viewing each in isolation.

For instance, there’s a lot of “American exceptionalism” (a phrase, according to Gibney, coined by Stalin, of all people) in our law and that’s not good. It would be one thing if the quirks of the American legal system were producing better, more just results, but for the most part they don’t. As one example, Gibney points out that judges in most other Western democracies are professionals who are trained to be judges, not lawyers (perhaps not even that) with the political skill to win elections or be picked by an executive to fill a spot on the bench for ideological reasons. As a result there’s a pretty steep learning curve for new judges. We could learn from the rest of the world’s experience, but that’s generally not how we roll.

Another example that crops up throughout the book is that although the American legal/political system isn’t designed to do particular things, that doesn’t stop it from trying to do them. The result is that we often end up with patchwork procedures held together by mental duct tape and without any great grounding in larger political or legal principles (one of Gibney’s observations is that legal education in this country provides precious little exposure to ideas about legal philosophy that could inform the system). Arguably the entire federal regulatory apparatus – something the Constitution is silent about – falls into this category. The more salient one these days, however, is the way we go to war, which is largely a Presidential decision rather than a Congressional one. Gibney wants Congress to step up and reassert its own authority, but overlooks the political calculus of the thing – actually voting for or against an overseas adventure is a big political risk, while staying out of the decision and riding the result however it goes isn’t.

For as good a job as Gibney does at diagnosing problems, he doesn’t provide very much in the way of concrete proposals for change. There’s an underlying vibe of “blow it all up and start again,” but he doesn’t actually say that needs or is going to happen. And while he does offer some specifics as he addresses some issues – close a bunch of law schools, allow non-lawyers to invest in law firms, etc. – he doesn’t really tackle bigger issues. For example, he recognizes the need to have more jury trials and more well informed juries, but doesn’t suggest changing the law to produce that result. Rather than suggest the law inform jurors of the potential sentences faced by defendants, for example, he suggests it’s sufficient that jurors be engaged and interested enough to Google the information themselves and engage in jury nullification.

In the end, Gibney’s suggestions largely boil down to exhortations to all involved to do better. Politicians should care more about institutional prerogative than political expediency. Constituents should hold them to account. Lawyers and judges should worry more about the perception of law as just than in burrowing down into their own particular specialties at the risk of losing the big picture. That’s all well and good, but if history teaches us anything it’s that people generally don’t do what’s best, they do what’s in their self interest.

How do we deal with that in the context of a Constitution that’s two centuries old and not designed for the realities of the 21st Century? I don’t know. Unfortunately, neither does Gibney, really.

NonsenseFactory

Irony Meter Cleanup On Aisle Four!

Rarely do I come across a piece of legal history I know nothing about that is so steeped in irony it almost hurts.

I recently saw, for the first time, The Ox-Bow Incident. I’d heard about it before and it was on one of the high-numbered pay cable channels we get and figured it was worth checking out. Released in 1943 (and based on the novel of the same name published in 1940), it’s the story of a mob in a small western town that forms to track down and lynch a trio of cattle rustlers who apparently murdered a local rancher. Of course they didn’t – the whole thing is a taught psychological study of mob justice and how inflamed passions can lead to horrible outcomes. In this case, the three men and hanged and only later does the mob learn they were innocent.

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The movie struck me as the kind that law profs like to write about (there’s a thriving trade in analyzing how lawyers are portrayed in media), so I went looking for any scholarly discussion of The Ox-Bow Incident. I found a couple of interesting articles, one of which had an astounding tidbit in it that I had to follow up on.*

As I said, the movie came out in 1943. The author of the article expressed amazement that such a movie got made in the middle of World War II, given that it took aim at the traditional Western narrative of rugged frontier exceptionalism. Whatever else it is, The Ox-Box Incident is an unflattering portrait of the American West. It could never have been made during the First World War when, he writes:

[when even a patriotic epic celebrating the American Revolution became a target for federal seizure and prosecution on the chance that the film might excite anti-British sentiments.

What the holy hell? I followed the footnote and saw the same of the film was The Spirit of ‘76 and off to Wikipedia I went.

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Released in 1917, just after the United States entered World War I, it was, as you’d expect, about the American Revolution. It’s the tale of Catherine, a woman of mixed heritage (French father and Native American mother) who, somehow, becomes the “morganatic wife” (I had to look it up) of King George III. Honked off at George and by the treatment of the American colonists, she returns to become a hero of the American Revolution.

Pretty stirring stuff, right? I mean, hugely melodramatic, but still, it makes you want to stand up and waive a flag, doesn’t it? So what was the problem?

The problem was that, at the time the movie was released, we had just begun to fight in the war with the British as our allies. Allies who apparently weren’t up for depictions of

[quote]multiple atrocities committed by the British side during the war, including soldiers bayoneting babies and raping unarmed women, the Wyoming massacre, and the Cherry Valley massacre.[/quote]

So when the film premiered in Chicago the head of the local film censorship board – whose name was, I shit you not, Metallus Lucullus Cicero Funkhouser – confiscated it and forced edits. It showed in Chicago in edited form, but after the cuts were restored for a showing Los Angeles the producer, Robert Goldstein, was arrested, tried, convicted, and sentenced under the Espionage Act. He served three years of a ten-year sentence before he got a commutation from Woodrow Wilson.

There you have it – a movie about the “spirit of 1776,” which presumably has more than a little to do with love of liberty and fighting tyranny – was suppressed by the nation it celebrates, to the point that the person who made it went to prison for years. They used to say that irony died after 9/11, but I’m surprised there was enough of it left after that explosion of ironic particles for that to matter.

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Fun fact – if you’re wondering why the First Amendment didn’t protect Goldstein from going to prison, consider two things. First, the Supreme Court, in general, was bad on the First Amendment around the time of the First World War. Second, at the time the Supreme Court had held that the First Amendment didn’t cover movies. They were “a business, pure and simple, originated and conducted for profit” not “part of the press of the country, or as organs of public opinion.” The case was overruled in 1952, but that was much too late for Goldstein.

Not quite so fun fact – according to the Wikipedia entry, it’s unclear what became of Goldstein after his prison term. He returned to Europe and it was thought he died in the Holocaust, but there’s some evidence he might have gotten out in 1938. Nobody’s really sure.

* Not online – Harry F. Tepker, Jr., The Ox-Bow Incident, 22 Okla. City U. L. Rev. 1209 (1997)

Why We’ll Never Win the War

Unless you’ve been living under a rock recently – or perhaps on jury duty – you’re no doubt aware that infamous drug lord Joaquin Guzman (aka El Chapo) was convicted of charges in a New York federal court that will likely leave him in prison for the rest of his life. The US Attorney had a big press conference afterward in which he hinted that maybe this time, they’ll finally make some headway in the War on (Other People’s) Drugs.

That is, of course, horseshit. I’ve long said that the War is really a war on the human desire to escape our shitty world and no amount of law enforcement is really going to change that. Writing at The New Yorker, Patrick Radden Keefe sums this up more succinctly than I’ve ever seen before:

But there is a deeper sense in which the rhetoric we use when we talk about the border and the war on drugs is misguided and always has been. The real engine for the cross-border trade in marijuana, cocaine, methamphetamine, heroin, and fentanyl is not the clever salesmanship of Mexican crooks—it’s the rampant demand of American addicts and recreational users. This is a point that seldom impinges on our national dialogue about the border with Mexico: the drug trade is dynamic. What makes it unstoppable is not weak border protections or wily Mexicans but the insatiable American appetite for drugs. Where there is money and demand, trade will flourish, borders be damned. Years ago, I interviewed a former D.E.A. official who told me about a high-tech fence that was put up along the border in Arizona. ‘They erect this fence,’ he said, ‘only to go out there a few days later and discover that these guys have a catapult, and they’re flinging hundred-pound bales of marijuana over to the other side.’

Under, over, through: as long as there is an American demand for drugs, drugs will find their way into America.

I’m in the middle of a book about another long, pointless, costly war – World War I. One recurring theme of A World Undone: The Story of the Great War, 1914-1918 is that once the Western Front settled down into a stalemate, generals kept throwing offensives at the other side in spite of all the evidence that the only result was to get lots of men killed. It’s as if no one was capable of backing away and saying, “this isn’t working, we need to try something different.” The War on (Other People’s) Drugs is the same. It’s failed and it’s been failing for decades. When are we going to realize that one more offensive, one more big prosecution, isn’t going to change anything.

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Favorite Reads of 2018

Since it’s getting down to the wire – I’m not down with “Best of” lists that show up in October – I figured now was the time to give a shout out to my favorite books from 2018. Two important notes: (1) these are favorites, not necessarily bests or whatever; I just loved them, and (2) the key phrase is “that I read in 2018,” so it includes books from before 2018. With that said, here we go (in no particular order) . . .

Nemesis Games (2015)

Nemesis

I’ve basically been keeping one book ahead of where the TV version of The Expanse is, but with the next season on Amazon taking parts from both the fourth (Cibola Burn) and fifth (this one) books, I figured I had to get a little more down the road with this series. I read Cibola Burn this year, too, and while I got the criticisms some people had with it, I didn’t think it was this bad. In comparison to Nemesis Games, however, it was a wet patch on the road. To say “things change” in Nemesis Games is to severely undersell it. That the writing hive mind that is James S.A. Corey managed to explode the cast, sending them off in different directions before pulling them back together, is no small feat, either.

Saga, Vol. 9 (2018)

Saga9

Oh, boy, that last twist. The good news is that after nine volumes Saga continues to be inventive, thrilling, thoughtful, and capable of numerous gut punches. The bad news is that writer Bryan K. Vaughn and artist Fiona Staples are taking “at least” a year off from the series before getting back to work on it. Part of me thinks that’s a good idea, but part of me worries if this shunts Saga into the realm of great, unfinished stories. Given the way this one ended, I sure hope not.

If you’re not reading Saga yet, here’s why I think you should.

The Field of Blood: Violence In Congress and the Road to Civil War (2018)

FieldofBlood

Many people know that, in the run up to the Civil War, Senator Charles Sumner was beaten by one of his Southern colleagues with a cane, providing the perfect metaphor for the turmoil that would soon rip the nation apart. What most folks don’t know is that, while Sumner’s beating stood out for its brutality, it was merely different in degree, rather than in kind, from numerous other incidents of Congressional violence. One Congressman even died in a duel (not on the House floor, to be fair). Not just a colorful “you were there” history, The Field of Blood looks back at another time when the political norms broke down and things sound frighteningly familiar to modern ears.

Johannes Cabal the Necromancer (2009)

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Pure fun. Well, pure darkly humorous fun, at the very least. Johannes Cabal sold his soul to the devil. To get it back, he’s have to deal in bulk, gathering 100 souls for the devil to replace his own, all while running a demonic travelling circus right out of the darker portions of Ray Bradbury’s psyche. This was probably the most fun I had with a book this year, partly because of what I’d just read before (see below), but also because there’s a sharp, dark wit that runs all the way through it.

Shattered Earth trilogy (2015-2017)

Broken

N.K. Jemisin’s trilogy – The Fifth Season, The Obelisk Gate, and The Stone Sky – made history early this year when it won the Hugo Award for best novel three years in a row, an unprecedented achievement. Is it that good? Absolutely. The Fifth Season, in particular, is a structural high-wire act that shouldn’t work, but completely does and leaves the reader knowing precisely why it was done. The other two books don’t quite reach that level, but the overall arc of the story and the characters that drive it is brilliant. Pretty heavy (I needed Johannes Cabal . . . to brighten me up a bit), but completely worth it.

I’ve written before about these books here and here.

The Cadaver King and the Country Dentist (2018)

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I wrote a review of this one here, so I won’t say much more. If you want to get really pissed off about what “justice” looks like in this country (and you should), this is the book for you.

Neuromancer  (1984)

Neuromancer

Yeah, I know, very late to the party on this one. My college roommate read it and, for some reason, I let it get away from me. Does it hold up? Pretty much, although it’s clearly a product of its time. As a foundational text for cyberpunk it’s something every sci-fi fan and writer should check out. That it continues to tell a gripping story while introducing a lot of ideas we now take for granted is icing on the cake.

Children of Time (2015)

ChildrenofTime

I gushed about this one right after I read it, so check out the details here. Suffice to say, any book that can make you care about the macro evolutionary development of sentient spiders is an achievement.

There Goes My Credibility

I am, as The Decemberists say, “a writer, writer of fictions,” but does that make me a lying sack of shit? I don’t think so, but I hope I never have to find out in court, at least in Alabama.

FryLying

William McKinney choked his girlfriend and then stabbed to death her mother’s boyfriend. At his trial he claimed he was acting in self defense (to the stabbing, at least). He was also a writer (unpublished, apparently). Thus, when he was testifying in his own defense, he was asked:

Defense counsel objected to the relevance of all this, but was overruled. The prosecutor continued:

Q. Did you consider yourself a writer? Writer of fiction?

A. Inside that book bag, I’m pretty sure my book was in it maybe.

Q. Okay. Now, so you were writing your own book, right?

A. Well, I had written a book, yes.

Q. Okay. When did you write your book?

A. Back during my incarceration.

Q. And you had it — they were composition notebooks, right?

A. (Witness nods head affirmatively.)

Q. That you had written chapters in; chapter one, chapter two, chapter three? All that, right?

A. Yes, sir.

Q. In fact, that is bigger than the bag that’s State’s Exhibit 47. It was a very large book that you were writing, wasn’t it?

A. Yes, sir, I assume.

Q. Lots of handwritten pages?

A. Yes, sir.

Q. And it was a work of fiction, I assume?

A. Yes, sir.

Q. So you at least considered yourself a writer?

Defense counsel objected to the relevance of all this, but was overruled. The prosecutor continued:

Q. Did you consider yourself a writer? Writer of fiction?

A. No, sir.

Q. You’re not a writer of fiction?

A. I wouldn’t call myself a writer, no, sir.

***

Q. But this book of yours is a work of fiction. But everything you’re testifying here — now, you’re telling us the truth today, aren’t you?

A. Yes, sir.

Q. You know you’re under oath and you’re looking at these folks and you’re going to tell them what happened that day, right?

A. Yes, sir.

In other words, “since you can make something up in one context, why should we believe you in any other situation?” That logic is dubious, at best. But it was good enough, at least for the court of appeals:

McKinney is not entitled to relief on this issue. As the State notes, ‘[t]he obvious inference the prosecutor was trying to draw was that, if McKinney writes novels or other fiction, then his account of the murder of Mr. Jackson [was] also fiction …. Whether McKinney was telling the truth was very relevant and a proper subject for cross-examination.’ (State’s brief, pp. 24-25.) See generally Wiggins v. State, 193 So. 3d 765, 805 (Ala. Crim. App. 2014) (“‘Counsel is given wide latitude and has the right and duty to cross-examine vigorously a defendant who takes the stand in his own defense. “A [prosecutor] may ask a defendant … questions tending to discredit [his] testimony, no matter how disparaging the question may be.”‘ State v. Rush, 340 N.C. 174, 186, 456 S.E.2d 819, 826 (1995).”).

I tend to agree with Eugene Volokh that:

To be sure, it’s perfectly plausible that McKinney was lying, just as it’s plausible that anyone else is lying; but I don’t think that would-be novelists are any more likely to lie on the stand than anyone else, or even any better at lying (unless perhaps they are novelists of proven and substantial gifts).

But I’d go further – even a writer of “proven and substantial gifts” knows the difference between truth and fiction. George RR Martin can spin him some tales, but I don’t think that means he’s lying if he testifies that the light at the intersection was really green. I do tend to agree with Volokh, however, that this was a “wet noodle of an argument” that wasn’t really prejudicial to McKinney. Still, it was irrelevant and the prosecutor was certainly trying to be prejudicial. Intent should count for something.

All in all, I think I’m insulted. I mean, I thought I’d sunk about a low as I could go, in terms of societal approval, by being a public defender. I had no idea that my scarlet letter, warning the wary of my wickedness, would be a W!

KeepCalm