Weekly Watch: The Staircase(s)

A few weeks ago, in my list of favorite movies, I mentioned that Jean-Xavier de Lestrade, director of the Oscar-winning documentary Murder On a Sunday Morning, went on to direct The Staircase, an epic (it eventually had 13 episodes) true-crime documentary about the death of Kathleen Peterson and the trial of her husband, Michael. It is basically the urtext of the modern true-crime doc boom. So when I heard that someone had made a non-documentary miniseries not only about the Peterson case but about the documentary itself, I wondered whether this was something the world really needed. Having binged it over a weekend I’m still not sure it was necessary, but it certainly was interesting.

The base facts of the case are fairly simple – in December 2001, Peterson found his wife dead at the bottom of a set of stairs in their home. The scene of her death was seriously bloody, evidence of a violent and tormented death. Everything else is supremely complicated. Peterson was charged with murdering his wife and eventually convicted, but his trial was rife with prosecutorial misconduct and expert witness fraud, leading to the conviction being overturned. Rather than go through with a second trial and risk going back to prison, Peterson eventually entered what’s called an Alford plea to manslaughter, in which he did not admit responsibility for his wife’s death (the point of an Alford plea is to allow a defendant to get the benefit of pleading guilty while maintaining their innocence – admittedly, it’s counterintuitive).

Part of what made the documentary series so riveting is that Lestrade and his team basically embedded with Peterson, his defense team, and his family, providing the kind of in-the-moment access that most true-crime docs can only dream of. The crew initially had similar access to the prosecution team, but that waned as the case went on.

Given that the documentary was such an interior view of proceedings, what does the miniseries bring to the table that it couldn’t?

Primarily, it brings life to Kathleen Peterson, whose death hovers over the documentary but who isn’t given any chance to be developed as a person. The miniseries splits its timeline three ways, with one being events leading up to Kathleen’s death. It does a good job of bringing to life someone who tends to get overlooked in the whole true crime genre and Toni Collette does a great job with the part.

Another thing the miniseries gives us is a more in depth look at the Peterson family and how the trial impacted them. The way that family was put together would strain fiction – two sons from Peterson’s prior marriage, a daughter from Kathleen’s prior marriage, and two adopted daughters whose mother had died in Germany (at the bottom of a set of stairs, no less!). They pull apart in different ways as the miniseries goes on and lends a real sense of how a case like this grinds up everyone who is caught up in it.

Finally, the meta touch of the miniseries is that it includes the makers of the documentary in it as characters. With one notable exception this really isn’t commented upon that much, as in large part their presence is simply noted in the background as filming takes place. The exception – and it is a doozy – is that the editor of the documentary wound up in a multi-year romantic relationship with Peterson while he was in prison, casting her objectivity into doubt (she has issues with some of the facts portrayed in the series – and isn’t the only one – but doesn’t deny the relationship). I mean, it’s an “ooh, I didn’t know that” moment, but unless you think documentaries are rigorous exercises in balance the idea that the documentary had a POV (and it was that Peterson was innocent) doesn’t come as a shock.

But is he innocent? It’s here that I find the differences between the documentary and the miniseries have the most interesting effect.

As I said, the doc is largely framed through the trial itself and the ways the state’s case is shaky (and the doc doesn’t even include an entire state’s expert witness whose testimony was struck for perjury!). That plays into, at least in my criminal defense lawyer brain, the presumption of innocence. If it can’t be proven, beyond a reasonable doubt, that he did it then he didn’t right? The Alford plea at the end of things is meaningless in this regard as the entire point is that it allows a defendant to take a deal while maintaining innocence. There’s a burden and the state didn’t meet it. Simple as that.

But the miniseries, perhaps because of its broader scope, leaves me less certain. I think it’s that in paring away a lot of the legal wrangling you’re left with there being, basically, two stories of what happened – one in which Peterson killed Kathleen for not particularly well explained reasons and one in which it was simply a horrible accident. Neither story accounts for all the physical evidence and the only person who knows the truth, Peterson, has issues with honesty. I still think, if I was on a civil jury, I’d find that he didn’t do it, but it would be a much closer question.

So back to the original question – did we need a fictional take on The Staircase (aside from the incredibly funny Trial and Error)? Probably not. In truth, the miniseries doesn’t shed any more light on the case or the people involved. It does allow for some dramatic speculation, however, about areas that were beyond the scope of the documentary. So necessary? No. Worth a watch? Absolutely.

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Hey Kafka (Or, Ruminations on Dead Authors and Duties Owed to Them)

Five years ago I wrote a post about dealing with requests from writers to destroy their unfinished (or other) work upon their death. It was sparked by the destruction of the recently passed Terry Pratchett’s hard drive by running it over with a steamroller, per his desire. As I wrote then:

The comments I read when the news came out was mostly amusement and pleasure at Pratchett’s wishes being so scrupulously honored. After all, if he was so specific as to how his literary executor was to deal with his unfinished work he must have felt fairly passionately about it never seeing the light of day. Who could argue that the right thing to do is precisely what the author wants?

I got to thinking about this again reading Richard Ovenden’s Burning the Books: A History of the Deliberate Destruction of Knowledge.

What I thought was going to be a particularly timely look at the social or political factors behind drives to ban books was actually a love letter to libraries and archives and the need for society to protect and support the collection and retention of knowledge. No great surprise, I suppose, given that Ovenden is the librarian at the famed Bodlean Library at Oxford.

In a couple of chapters, Ovenden discusses particular situations where authors either took affirmative efforts during their lives to destroy their unfinished work or asked executors/family to do the destroying once they were dead. In some instances (like Franz Kafka) it was unfinished work, where some others involved personal papers like letters or notes. Ovenden’s point of view is clearly that any loss of this information is a cultural travesty and implies that the heroes here are people who go against the wishes of their friends/loved ones and preserve their work anyway.

I get that, on the one hand. Destroyed knowledge is pretty much gone, after all, without any hope of getting it back. The world is undeniably richer for having Kafka’s unfinished work or the papers of someone like Sylvia Plath that gives insight into a writer’s life and process. But whose decision is it to make that determination?

The author’s wishes deserve at least some consideration, right? Maybe because in one side of my life I’m a writer and in another I fight battles to vindicate the Fourth Amendment and rights to privacy (usually unsuccessfully, alas), but airing things the original author never wanted to see the light of day seems like a violation. I’m not sure the world is entitled to anything the author doesn’t want to show it.

As is happens, after Burning the Books, I decided to read one of the most famous posthumously published works, Kafka’s The Trial.

I’d had it in my collection for a while but never got around to it. I’m glad I did, just to have been able to say I’ve read it. As a lawyer, you’d think it would be required reading, although the deep secret buried in The Trial is that there never is an actual trial that takes place. I sort of know that’s the point, but I expected a little bit more procedural chicanery – the kind of stuff that happens in regular courtrooms that get dubbed “Kafkaesque.”

The Trial definitely feels unfinished. My understanding is that the first and last chapters were actually written and designated as such by Kafka, but the rest was assembled by his executor, Max Brod, after his death. That said, it does have a memorable ending, so it doesn’t just peter out. I also found the atmosphere to be more dreamlike than nightmarish. The main character, K, is more frustrated and aggravated by the situation than he is terrified. In a way that makes it worse.

While there is no trial per se in The Trial, lawyers and the court system come off pretty badly. The part that stuck with me the most is a scene where K is in the court building and passes a group of litigants just huddled around not doing much of anything. It’s explained that they’re waiting for rulings in their cases, some of them for years, and that all they can do is continue to wait. That put me in mind of several of my clients who have watched their cases languish in court, just waiting for the judge to make a decision. They’d rather the judge get it wrong but actually get it done – at least then they could move on to the next phase of things.

My ultimate conclusion about The Trial is that I think K was dead the entire time. The suddenness of the accusation, the ultimate futility of fighting the charges, and the references to K needing to defend his entire life make me think that he’s in some kind of limbo (from which he’s ultimately released in the end). The way “the law” is discussed, too, sounds more like a religious concept than a purely legal one. It doesn’t ultimately matter, but it’s what jumped to mind while reading it.

Since I was on a Kafka kick, I decided to wrap things up with a book that dove more deeply into the battle over his literary legacy, Kafka’s Last Trial, by Benjamin Balint.

The titular trial here took place in Israel in this century and was a battle over where Kafka’s literary legacy would have its home. It stems from how Brod dealt with Kafka’s literary estate and whether it should be retained by the descendents of his secretary or should be taken into the National Library of Israel as a cultural treasure of the Jewish people (or even in an archive in Germany). The legal wrangling isn’t that interesting (it turns on technical distinctions between different kinds of gifts – you can read up on it here), but the question of legacy is really fascinating. There’s an entire chapter dedicated to the issue of whether Kafka was a German writer (though he lived in what is now the Czech Republic) who happened to be Jewish, or a Jewish writer who happened to write in German and what the answer to that question means.

Of course, that issue could be hashed out regardless of whether Brod had destroyed Kafka’s unfinished works as asked (assuming Kafka became a big enough name without it). And it would have avoided an awful lot of expensive litigation generations later. So, in the end, is it better to encourage executors, friends, and families to abide by the wishes of the writers who trust them to do so?

I’m inclined to think so, but I also think that the question may be moot. After all, once a writer is dead he or she isn’t going to know what their executors do one way or the other. One pleasant thing about death is you don’t have to worry about your reputation. Weighing all the considerations, maybe Brod was on to something in the first place.

Weekly Read: The Invention of Murder: How the Victorians Revelled In Death and Detection and Created Modern Crime

Plus ca change
Plus c’est la meme chose
The more that things change
The more they stay the same
– Neal Peart, “Circumstances” from Hemispheres

Much has been written about how we’re living in an era obsessed with stories about crime. True crime podcasts and documentaries are everywhere. There’s something compelling about digging into an extended investigation of crimes and the people who commit them (the people against whom they’re committed usually get less attention). That’s true even for somebody who is knee deep in criminal law every workday. I’ve fallen down the rabbit hole of more than a few of these cases.

Along with the rise in true crime media has been concerns about what it says about society or how it may shape perceptions of crime. While those are legitimate things to worry about, if you get nothing else out of The Invention of Murder  it should be that our societal obsession with crime, and qualms about it, are nothing new.

Victorians didn’t actually invent murder, of course, but Judith Flanders presents some evidence that it wasn’t very prevalent before the 19th Century (or at least widely reported). What occurs in that period is a convergence of emerging mass media, organized police forces, and growing cities that created a kind of perfect storm of crime and reflection upon it.

For the most part, Flanders works through the century by covering the details of a specific case, then showing how it was discussed in the press and, eventually, popular entertainments (Charles Dickens shows up in these an awful lot). Along the way we see the shift from public to private executions – public ones could attract thousands of people. We also see that the public interest in the stories of murders – which are often different from the facts – became insatiable.

This format gets a little redundant at times, but it allows Flanders to show that whatever the details of any particular petty atrocity, the press and popular entertainment could always make it worse, more salacious, more interesting. These includes not just novels, but stage plays (lots of stage plays – copyright wasn’t much of a thing in that era) and even marionette shows. Famous murders became quick reference points for certain kinds of maliciousness. Cases crept into popular culture so much that famous killers lent their names to ships and racehorses.

That the facts of particular cases didn’t always match the public’s perception mirrors our world today. I was struck when Flanders described the mid-century panic over murder by poisoning, even though they were so uncommon as to be nearly non-existent. A better example of a moral panic it would be hard to find.

Other threads running through these cases would feel familiar to a 21st Century reader. The modern police force was formed in the early part of the century and, almost as quickly, the police were criticized not as protectors of the general public but as enforcers of social order. Almost immediately after the Metropolitan Police Force was organized in London one newspaper listed among the “Necessary Qualifications” to be a cop the ability “to perjure himself with a clear conscience,” which could lead to “speedy promotion.” Then there are the repeated instances where a murder defendant is othered in some way (as a Catholic or Jew or Eastern European – I think there was one where all three were used!), set apart from the wider society that was reading about them.

One of the ongoing dialogs in the press that Flanders recounts is the requisite navel gazing as to whether the press coverage and popular media fascination with murder actually leads to the commission of crime. Throw in “video games” or “social media” and you have the same dialog going on today. What’s interesting is where this leads – Jack the Ripper. Flanders doesn’t argue that Jack’s crimes were caused by the Victorian obsession with murder, but does suggest that it’s kind of the final step in that evolution. What Jack the Ripper became in the public imagination couldn’t have happened a century earlier. If you’ve read Alan Moore’s From Hell this is a kind of reverse of the theory that animates (so to speak) that book, that Jack’s crimes were actually the birth of the 20th Century and all the mayhem that would occur during it.The Invention of Murder isn’t a quick read. It’s fairly dense and comes with pages of notes and source citations in the back, so it’s a serious historical work. But it’s also really entertaining, if you have any interest in how societies process crime. Flanders brings just enough snark to proceedings the lighten things up here and there. Definitely recommended.

Weekly Read & Watch: Eight Men Out

I’m not a baseball fan. I don’t hate it – life’s too short to get worked up about other peoples’ pastimes – but it doesn’t engage me. It might be odd, then, that one of my favorite movies is Eight Men Out, John Sayles’ exploration of the infamous “Black Sox” scandal, when a group of Chicago White Sox players threw the 1919 World Series.

Of course, what makes the movie work so well is that it isn’t really a baseball movie. It’s a movie about labor relations, in which the ballplayers are exploited at first by the club’s owner, Charles Comiskey, and then by unscrupulous gamblers who don’t even pay the players what they’re supposed to. I won’t say the baseball stuff is secondary (there’s a good deal of on-field action), but it’s definitely used in service to something other than your traditional sports movie narrative.

The film is based on a book of the same name by Eliot Asinof that was first published in 1963.

I only just got around to reading the book itself, which is an interesting contrast to the movie. They tell the same story, but there are some interesting differences that arise from Sayles really driving home the political point of view he’s coming from.

What the book does better than the film, since it has more time to cover the story, is provide more context to what happened in 1919. For one thing, while the movie presents the Black Sox scandal as almost sui generis – a huge breach of sporting life – it turns out the gambling-related scandals were pretty common in baseball at the time. Granted, they hadn’t gotten up to the level of the World Series, but in truth this was the straw that broke the camel’s back rather than a singular incident. Indeed, one of the earlier scandals involved the Sox’s opponents in the World Series – the Cincinnati Reds.

The book also provides more context for what is alleged to be the prime driver of the players’ interest in the fix – that Comiskey was a particularly miserly owner. The movie moves a couple of incidents (involving avoiding paying bonuses) from 1917 to 1919 to help drive this home. While the book argues that Comiskey was a tight wad, it also shows that the rest of the owners weren’t much better. In the days of the reserve clause, where free agency didn’t exist and players were forced to play for basically whatever wages the owners offered, it was easy to be a tightwad. There’s also attention given to contract terms that allowed players to be fired with 10-days notice for just about anything (including getting injured), but they had no similar right to walk away. It’s not as if your best player could fuck off to another team when their contract was up. More than that, given that the country was just coming out of World War I there was a rational (if not completely honest) basis for owners to worry more about money. Being a professional baseball player then wasn’t much better than being a professional women’s soccer player is these days, complete with the side hustles. The movie focusing on salaries makes that easier to convey in a dramatic narrative of just about two hours.

For all that context there’s one area where I wish the book would have provided a little bit more. Having read the book I’m still not sure where gambling fit into society at the time of the 1919 World Series. The gamblers involved in this story are all pretty sleazy characters with connections to organized crime, but gambling itself seemed to be much more open and notorious than it would be in later years. There’s a recurring motif of entertainer George M. Cohan being close to the fix (although not involved) due to gambling that makes it seem not quite illegal – but maybe not quite legal, either? I’d be interested to know what society thought of gambling back then as a way to help explain the reaction to the fix.

The book also dives deeper into the aftermath of the series and the eventual exposure of the fix. The movie keeps a tight point of view on the players, while the book follows the journalists and lawyers who probed the series and the gambling that surrounded it (Sayles compresses most of this into a jazz-fueled montage). In particular, I appreciated the details on how journalist Hugh Fullerton (played by Studs Terkel who, along with Sayles himself as Ring Lardner, act as kind of a Greek chorus throughout) was roundly vilified for daring to suggest that something wasn’t on the level. History proved him right, of course, but that might have been cold consolation.

As for the lawyers – well, if baseball came out of the entire scandal with a damaged reputation, my profession didn’t exactly cover itself in glory. Some of the more melodramatic parts of the movie – grand jury testimony being stolen, outbursts in the courtroom – weren’t added for dramatic effect, it seems. At the eventual criminal trial (where everyone, players and gamblers both, were acquitted) the players were represented by lawyers paid by Comiskey who were more interested in letting baseball (with its new, all powerful, commissioner) deal with the matter than the courts. But my favorite bit of lawyerdom in the movie is when Kennesaw Mountain Landis, a federal judge named the first baseball commissioner, takes the job for significantly more pay than being a judge – but keeps his seat on the bench, anyway.

Where the book and movie differ most importantly is when it comes to the genesis of the fix itself. In the book it’s clear that the fix began with the players, who reached out to gamblers about the possibility of fixing the series. The film is a bit more vague. The conversation where it’s first broached by Chick Gandil and gambler Sport Sullivan starts kind of in medias res, with no real indication of who made the first pitch (so to speak). I think it lets Sayles maintain his exploitation narrative without sullying the players too much.

Ultimately, though, it’s important to consider that the Sayles movie is a narrative work of fiction, not history, and the Asinof book is now nearly six decades old. As compiled by the Society for Baseball Research, more recent evidence has emerged that cast some doubts over the story told in Eight Men Out. In particular, maybe Comiskey wasn’t the miser he’s been portrayed as being, although that doesn’t much matter in the end. The book, to a lesser extent than the film, is telling this story from the players’ perspectives and whether their complaints with Comiskey were valid in a wider context doesn’t mean they still weren’t motivated by them.

None of this makes the any less engrossing or means it can’t get at broader truths about America and its economic life. There’s truthiness to it, if not absolute truth. Just means it’s history, which is ever changing upon further evaluation.

Getting Creative In Court

Lawyers, in general, write a lot in their work. I write even more, given that I specialize in appeals and other sorts of post-conviction cases. Over the two-plus decades I’ve been doing this, I like to think I’ve developed a good skill with words, with creation of sentences and paragraphs that convey meaning and argument while still being a pleasant read. The days of legal writing filled with “heretofore”s and meaningless Latin phrases (seriously, if you see any sentence with “inter alia” in it, cross it out and tell me how that sentence is any different) are long gone, thankfully.

Still, there’s only so much creativity you can squeeze into legal writing. For one thing, you’re limited by the realities of the facts in your case (particularly in an appeal) and you can’t really beef up the plot or characters of you brief to make them more persuasive. For another, you have to consider the audience. The truth of the matter is that judges (and their clerks) are busy, have countless things to read on a daily basis, and are interested in being persuaded as quickly and clearly as possible. An appellate brief is no place to play with the form of words and sentences, to be coy about meanings, or to roll out mysteries for readers to ponder.

That’s one of the reasons I started writing fiction, especially fantasy. What better escape from the horrible facts of real life cases than worlds where I get to make up anything I wanted to? Strange new worlds! Interesting creatures! Cultures and histories never before imagined! This is where my creativity gets to thrive, not in court.

Right? Maybe not, if I could draw anything beyond a stick figure.

Third Planet Sci-Fi and Fantasy Superstore is a comic book and related merchandise business in Houston. From the Google Street View image you can see that it’s a wide, one-story building next to a busy street. You may also notice that it’s next-door neighbor is a high-rise Crowne Plaza hotel that towers over the place.

Third Planet is suing its neighbors because . . . well, because there tend to be a lot of assholes staying there. According to a third (!) amended petition filed in state court, hotel guests frequently make use of the hotel’s open-air balconies and fire escape to “throw all manner of projectiles off those landings and onto Third Planet’s roof and parking lot. It goes on to describe one particular day:

On or about March 3, 2019, matters escalated to a new level of destruction. Hotel guests, residents, tenants, patrons, customers, or visitors launched at minimum fourteen large metal-canister fire extinguishers from the Hotel onto Third Planet’s roof and parking lot. The canisters landed on the roof with explosive impact. This caused significant compromise to the structural integrity of the roof. In sum, the roof was irreparably damaged.

The next paragraph simply says: “Then came the rain.”

Pretty compelling stuff, right? Nonetheless, according to the petition, the defense “has previously filed special exceptions, complaining that it could not sufficiently understand the claims and allegations against it.” So what does Third Planet’s counsel do? They write a comic book to lay out everything.

Over the next 13 pages, the comic tells the story of Third Planet, its bowling champion owner TJ Johnson, and the store’s history in Houston. As for those flying fire extinguishers? Well . . .

The whole complaint is here, with the comic part starting at page 6. It’s a bold brilliant move and, without knowing anything about the actual legal merits (property law is not my specialty), I hope Third Planet wins and wins big.

Bold as it is, Third Planet’s resort to visual aids in a pleading is not unprecedented.

A comment to the Volokh Conspiracy post that brought this to my attention pointed to an article from the ABA Journal in 2012 where a lawyer did something similar in federal court.

The case involved the United States’ antitrust complaint against numerous publishers for fixing ebook prices and an attorney wanted to file an amicus (friend of the court) brief taking issue with some of the Department of Justice’s positions. He originally filed a 24-page motion with a 29-page proposed amicus brief attached. The court said he could file an amicus brief, but it could be no longer than five pages.

Which he did, taking a more comic strip approach:

The comic complied with all the usual formatting rules for pleadings in that district (font size, margins, etc.), but that didn’t keep the US Attorneys working on the case from dealing with it without a lot of effort (and the settlement they were seeking was eventually approved). Still, it was pretty clever (you can read the whole five pages here).

Like I said, making your argument in pictures is a pretty bold gambit (easier to do when you’re not actually representing a client). If it works, it’s brilliant. If the judge takes offense, thinks somebody’s diminishing the process, it can be a disaster. Come to think of it, probably for the best that I steer my wilder impulses into fiction.

The Correct Answer Is Always “It Depends”

Law school is all about answering questions – usually when randomly questioned by a professor in front of the entire class. It can be intimidating, to say the least. So, imagine my relief/horror when one of my first-year professors explained that the correct answer to any legal question is “it depends.”

That’s not a cop out, at least for actual live legal issues (dumb stuff like this, not so much), since they turn on factual details unique to particular cases and the application of established law that is almost, but not quite, determinative. Angels may dance on the head of a pin, but lawyers play the tune.

Turns out that writing fantasy is a lot like that.

I’ve been thinking of “it depends” a lot in the discussions I see on one of the fantasy writers groups I’m on at Facebook. It’s a very helpful group of people, tightly moderated to keep it from being flooded with “buy my book!” posts. Generally, people ask good questions about writing problems, publishing options, and that kind of thing.

Lately, however, there’s been a few questions that have really rubbed me the wrong way. Not because they’re bad questions in general, but they’re odd questions to ask when you’re writing fantasy. Here’s an example:

Now, I’ve written before about research in fantasy and how helpful it can be and wondering about how border controls have worked through history is right in line with that advice. History is stranger than you might imagine and can provide great fodder for world building. The problem I have is the word “accurate.” After all, what does “accurate” mean when you’re writing fantasy? Not much. Hence, my bottom line advice:

Similarly, someone asked a question about a fundamental background piece of their world:

And, likewise, my answer:

But the one that really got me, and made me want to throw things across the room, was this one:

I didn’t answer this one, as I feared I’d be entirely too snarky. The question is just . . . odd. “Immortals” are not real. Everyone, and everything, dies. The only limit on an immortal character in a story – a classic trope for a reason – is (to quote Frank Zappa) “the imagination of the imaginer.” What possible answer could there be to a question like “can immortals have children?” Why the fuck not? Or, if you want it to be so, why not that instead?

All of this is to say that the great thing about fantasy – what really distinguishes it from its cousin science fiction – is that there are literally no limits. Whatever universe you build should make sense internally and not seem like a giant game of world building Calvinball (unless that’s the point!), but outside of that, go nuts! You don’t need for it to follow the real world or be a logical extrapolation of reality. That’s the entire point and joy of writing fantasy – the rules are yours to make.

So, next time someone asks whether they can do something particular in their fantasy story, remember there are no “yes” or “no” answers – as with the law, the right answer is always “it depends.”

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.

Weekly Read: The Feather Thief: Beauty, Obsession, and the Natural History Heist of the Century

One of my favorite semi-recent films is David Fincher’s Zodiac, about the lengthy hunt for the Zodiac Killer (made before everybody agreed it’s Ted Cruz). While that’s an apt description of the film, it’s also pretty shallow. What the movie is really about is obsession, about the need to find answers, and what it does to people who dedicate their lives to trying to find them, yet don’t.

I thought a lot about Zodiac while reading The Feather Thief. Not because the crimes involved are in any way similar or because The Feather Thief is a gripping whodunnit. In fact, there’s no doubt whodunnit – on June 24, 2009, an American flautist-in-training (!) named Edwin Rist, studying at the Royal Conservatory in London, travelled to the nearby village of Tring and stole nearly 300 specimens of rare tropical birds from a branch of the Natural History Museum. This is hardly a spoiler, as it’s right there in the prologue. If the story is that simple, why is The Feather Thief worth reading? For several reasons.

First, Kirk Wallace Johnson does a really good job of laying out why anyone would bother to steal a bunch of birds. This starts with a history of these birds themselves, many of which were captured and cataloged by Alfred Russel Wallace, Darwin’s rival in developing the theory of natural selection. Then there’s the late-Victorian fashion fad of using rare birds (not just their feathers, either!) as status symbols and the backlash that produced one of the first animal conservation movements. Laws and treaties followed and the birds were generally relegated to becoming museum specimens at places like the Natural History Museum. They were in a small-town outpost in 2009 because they had been relocated there for safekeeping during World War II.

That these kinds of birds were basically illegal to possess, or at the very least sell on the open market, led to them becoming particularly valuable to a particular community – that of expert fly tiers. These are not folks that tie flies in order to use them fishing, but rather out of artistic drive and the desire for historical accuracy. Rist was not only a member of this community, but a leading light of it, even as a teenager. He was, broadly speaking, in the right place at the right time to know the value of these birds and have access to them.

The second thing that makes The Feather Thief compelling is Johnson’s role in this tale. He was once responsible for trying to rebuild parts of Iraq after the war, then transitioned into helping Iraqis who had worked with the United States seek asylum in the US.  Although he wants to know why Rist did it (which is pretty obvious), he’s more interested in trying to right the wrong and locate the birds that hadn’t been recovered via the usual process of Rist’s criminal prosecution (he got no time, thanks to a shaky autism diagnosis by – no shit – Sasha Baron-Cohen’s cousin). This began with a stray comment from a buddy while fly fishing and, well, the rest is history.

This is where the Zodiac connection really comes in. Almost everyone in The Feather Thief is driven by an obsession that border on all-consuming. Wallace spent years in the Asian jungles in pursuit of specimens (while Darwin jumped in front of him with the whole evolution thing). Rist took to fly tying the way an addict-in-waiting takes to heroin. The ecosystem in which he swam online was obsessed with these birds as a means to creating the perfect fly. And, finally, Johnson himself nearly let his life get away from him as he tried to track down all of Rist’s birds.

None of these obsessions really end well, which returns us to Zodiac. There is no happy ending here, except maybe for Rist – yes, he’s a convicted felon, but he got his degree from the Conservatory and is making a living as a professional flautist. Johnson doesn’t find a trove of stolen birds. He can’t make the museum, and science itself, whole. Instead, he has to walk away before it consumes him, unsatisfied that he wasn’t able to make a difference.

The Feather Thief isn’t the knottiest whodunnit. The bad buy here isn’t really that inscrutable (whatever he convinced a court about his motivations). It’s more about the impact of a crime and the need to try and set it right. Along with the realization that, a lot of the time, that’s a hopeless crusade.

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.

Why Do I Love Bad (Fictional!) Lawyers?

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

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

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

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

Saul2

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

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

Hutz2

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

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

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

Harvey

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

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

SteveDallas

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

SteveOpus2SteveOpus1

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

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