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.

OxBow

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.

Ad_for_1917_silent_film_The_Spirit_of_'76

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.

ObiWonIrony

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)

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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)

JohannesCabal

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)

CadaverKing

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

Other Great Lawyer Movies

Several years ago, the American Bar Association Journal put together a list of the “best lawyer movies.” They’ve recently updated it, to their credit (there’s nothing quite so sad as an out of date “best of” list), and it’s full of great movies – Primal Fear, A Few Good Men, To Kill a Mockingbird, etc.. I come not to scorn that list, but to supplement it, with five of my favorite overlooked lawyer movies.

A word on what “lawyer movie” means (to me, at least). It’s a movie where a lawyer is a main, if not the main, character and where the practice of law is important to the plot. It doesn’t have to revolve around a courtroom (although that helps) and, taking a cue from the ABA’s inclusion of A Man for All Seasons, isn’t limited to American lawyers. So, with that said, off we go.

Breaker Morant (1980)

Breaker

Breaker Morant gets bonus points for not only being a great lawyer movie, but a great war movie, too. Set during the Boer War of 1899-1902, it’s the story of three Australian soldiers (although the titular Breaker is of English extraction) put on trial for murder of enemy prisoners and a German missionary. They’re attorney, another Australian, has only every handled land conveyancing before. It is, ironically, a real kangaroo court, with the soldiers being scarified more for the sake of international PR than justice.

That’s because, the movie asks, what is justice in a war where there are no rules? It’s from the Boers that we get the word “commando.” By the time the movie is set they’re fighting a rearguard irregular action that eschewed pitched battles, uniforms and the like. The by-the-book military law ways of dealing with prisoners didn’t really fit with that kind of war. But is the British Empire more interested in enforcing the rule of law or using the Australians as scapegoats? The irony is the murder of the German missionary, of which we knew they are completely guilty, is the one count on which they’re acquitted.

It also contains what might be my favorite last line in all of cinema:

 

 

A Soldier’s Story (1984)

ASoldiersStory

Another one that doubles as a great war movie as well as lawyer movie. Only this time the war is World War II and it’s nowhere near the events of the film itself. Based on a Pulitzer Prize winning play, it’s the story of an African-American army officer sent to a Mississippi base to investigate the death of an African-American drill sergeant.

Through the investigation we learn about the sergeant’s unit, a group of African-Americans desperate to do their part to defeat Hitler, but who have been reduced to a semi-barnstorming baseball team (they might get to play the Yankees). There’s an exploration of racism (the fact that the investigating officer is black is just too much for some folks) and abuse of power that spirals into a genuinely satisfying twist. Plus, there’s a hell of a cast, led by Harold Rollins and Adolph Caesar, but also including Robert Townsend, David Allen Grier, and a young Denzel Washington.

The People vs. Larry Flynt (1996)

people_vs_larry_flynt

 

You don’t want to quit me, I’m your dream client: I’m the most fun, I’m rich, and I’m always in trouble.

Every lawyer has difficult clients, something that the movies aren’t always good at putting up on screen (to see a great portrayal of what it’s like to work with a fraud client watch Shattered Glass). Sadly, most of our difficult clients aren’t as fun or rich as Larry Flynt, though some of them are in trouble even more often than “always.”

The People . . . (directed by the late great Milos Foreman) is a bio-pick, but it spends a lot of time in court, culminating with the most realistic depiction of a Supreme Court argument I’ve ever seen on screen. It’s the culmination of Flynt’s fight against (the late and decidedly not great) Jerry Falwell, who sued Flynt and Hustler over a parody ad that implied Falwell had sex with his mother. For that alone, it makes the list.

The Sweet Hereafter (1997)

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Every other movie on my list (and many on the ABA list) has great courtroom scenes. The Sweet Hereafter never gets anywhere near a courtroom, yet it still provides one of the best portraits of what it means to be a lawyer I’ve ever seen.

Mitchell Stephens (played by Ian Holm) is a big city lawyer with a drug-addicted daughter trying to build a case in a small, isolated Canadian town. A school bus has crashed through the ice, killing many of the town’s children and leaving deep scars on just about everyone. Stephens trudges from home to home, trying to sign up plaintiffs for a suit against the bus manufacturer and the school district. Thus, Stephens is literally an ambulance chaser, yet it’s clear he does believe in the righteousness of what he’s doing. He’s not just chasing a payday (though there is that). The melancholy of it all, being absorbed by the traumas of others, comes through in every scene with him. No other movie I’ve seen gets that aspect of what it means to be a lawyer.

Naturally, it all falls apart at the end (thanks to a surviving child, played by Sarah Polley, who’s gone on to direct some great films), which makes it the rare lawyer movie where the lawyer loses. Again, that’s a hard truth for most lawyers (most of my fellow criminal defense lawyers, at least).

Intolerable Cruelty (2003)

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One of the reasons I like to talk about “favorites” instead of “best” is that movies (and all art) strikes different people in different ways and sometimes you love something even if it isn’t a critical darling. I don’t think anybody would call Intolerable Cruelty one of the Cohen Brothers’ best movies, but it is undoubtedly one of my favorites.

That’s largely down to the fact that for the first year of my legal life I was a divorce lawyer. Working for legal aid as the domestic violence specialist I split my time between working with abuse victims to get protective orders and getting them out of marriages. The people I was working with didn’t have enough property (and, thankfully, not many had kids) to fight about most time, much less enough to worry about something like the famous prenup that bears the name of Myles Massey (played with all his old-school movie star charm by George Clooney), but the beats and rhythms of what divorces cases are like are the same regardless of what’s involved. Maybe it’s millions of dollars; maybe it’s the commemorative Smurf glasses from Arby’s. I recognized that on the screen.

Plus, there’s an easy screwball feel to the whole thing (Catherine Zeta-Jones, as the woman who cooks up the scheme to bring Massey to heal, is great, too), with just enough bizarre touches (Massey’s wheezing senior partner, the Baron, etc.), that it’s just fun. Which is something you shouldn’t be able to say about a movie with a divorce lawyer as the main character!

Weekly Read: The Cadaver King and the Country Dentist

There’s a long-running thread on one of the writers’ forums where I hang out about “books you’ve thrown across the room with force.” The examples are most books that are badly written, not otherwise infuriating. That being the case, if I actually had a copy of Radley Balko’s The Cadaver King and the Country Dentist, rather than the Audible file on my phone, I’d definitely have thrown it across the room a few times while reading it. As it is, I can’t afford the new phone, so I just had to grin and bear it.

From the main title you’d think this book might be one of the nifty mysteries where a pair of mismatched souls find the killer in the end. The subtitle dispels that: “A True Story of Injustice in the American South.” The spine of the book is the story of two men wrongfully convicted of murder in Mississippi and what it took to reclaim their freedom. It’s a story with a pair of clear bad guys, but the lesson of the book is much broader than that.

Said bad guys are the ones mentioned in the title. The “Cadaver King” is Steven Hayne, a medical examiner who at one point was doing 4 out of every 5 autopsies in the state (plus others in Louisiana and some in private cases, too). He did so much work for a couple of reasons. One is that, for decades, the death investigation system in Mississippi was completely fucked up. It was left in the hands of local coroners (elected officials, not necessarily medically trained – the history of the office is fascinating and has little to do with death investigations), who then contracted with actual doctors to do autopsies. The other is that Hayne told prosecutors what they wanted to hear, pushing well past the bounds of what science could say to provide clinching evidence that whatever person the state charged was guilty of the crime.

Bad as Hayne was his sidekick, “Country Dentist” Michael West, was even worse. West started out as the purveyor of a an always sketchy and now debunked field of forensic practice that allowed someone to match bite marks they way others might match fingerprints. With Hayne an expert at finding bites on corpses, even when it made no sense, West could be another link between a suspect and a conviction (why nobody questioned the rise in murders that involved biting is a mystery. As the years went on he developed other skills so that, before his eventually unraveling, he was basically a one-man CSI.

It’s not a spoiler to say that Hayne and West get their comeuppance (West is finally pinned down during a deposition about his magical testimony by an Innocence Project lawyer named – I shit you not – Fabricant) and that two innocent men are freed. But that’s far from a happy ending. There are almost certainly others similarly situated in Mississippi and what makes the book so infuriating is that the entire system is setup to keep them in prison. I’ve had to explain this to clients before – once you’re found guilty, it’s next to impossible to prove otherwise. Finality reigns supreme. The system simply doesn’t care if that might not be the truth and most people don’t want to know (one revealing anecdote is how the Innocence Project at the University of Mississippi got pushback initial because people feared it might suggest some alumni had gotten the wrong people convicted). As Balko puts it in the book, “[w]hat you’re about to read didn’t happen by accident.”

That’s bad enough, of course, but when politics and perverse prosecutorial incentives are thrown into the mix it practically guarantees bad outcomes. That’s mostly because politicians have been so good at weaponizing fear of crime (even as crime rates drop to historic lows) and most prosecutors are elected. You’ll rarely lose an election for being too tough on crime, but go the other way and better start planning for another career. And, as Balko points out, this is a bipartisan problem. When a blue-ribbon federal panel issued a report calling into question large swaths of forensic evidence, the Obama Justice Department dismissed it. Truth is, people rarely care about the details of the criminal justice system unless they or someone they love get caught up in it.

But that only works they way it does because, at bottom, the modern American criminal justice system doesn’t place any priority on determining what actually happened in any particular case. Prosecutors want convictions. Defense attorneys want the best results for their clients, which may be at odds with the actual truth of the situation. Defendants, sometimes facing long potential sentences and no real option of winning in court, plead guilty to things they didn’t do. And, as I said, once that verdict is in, the system is not designed to examine it again.

The Cadaver King and the Country Dentist is a good read. It’s engaging and compelling, frightening and maddening. “If you’re not outraged,” the saying goes, “you haven’t been paying attention.” Pay attention. Read this book.

CadaverKing

Birth of an Idea

Some authors hate the “where do you get your ideas?” question. I’ve never really figured out why. I can see why readers might be disappointed with the answers, since they’re much more mundane than they might hope. There is no communication with the muse, no blinding flash of insight, just a keen eye and brain that perpetually asks, “what if?” And the realization having a pen handy is almost always a good idea:

So in service of explaining how that works, I thought I’d describe the process I recently went through were a new story idea crystallized in my mind. It’s as good an example as any of the truth that inspiration is out there everywhere, if you know what to do with it.

Right now in my lawyer day job I have a case pending in the court of appeals where one of the issues involves whether my client had served too much time in prison and might be entitled to credit for that. In my brief I made a couple references to him “banking time.” When the Government responded, for some reason, it turned the word around and repeatedly referenced a “time bank,” which it argued didn’t really exit (it does).

Beyond the fury at the allegation I was making shit up, the phrase “time bank” got lodged in my brain. There was something about it that seemed absurd and specific in a way that “banking time” didn’t.

With “time bank” lodged in my brain like a stepped-on Lego, I went into brainstorming mode, which to my neighbors looks like mowing my yard. I do some of my best thinking about writing while I mow, since it’s not like my mind is taken up with other things. So I turned over this concept in my mind, over and over again – what, precisely is a “time bank”? And how would it differ from a memory bank?

I came up with three different ideas, one sort of modern science fictional, one utterly fantastical, and one kind of in between. Thinking them over I found myself drawn the first, the modern one, and began thinking about how characters might interact with this “time bank.”

The working title is “Down and Out at the Time Bank,” a tale of a poor schmuck who gets in way above his head, but probably comes out of it just fine. Short story or something longer? Don’t know yet, as I’ve got to put it on the back burner while I work on other things. But it’s there, lurking in my ideas file, waiting for me to come back to it.

So, thank you, unnamed Assistant United States Attorney. You’ll win the case in the end (‘cause y’all almost always do), but at least you gave me something worthwhile I can take away from it.

And that, ladies and gents, is where story ideas come from!

We All Need Some Light

The other day at work I was doing some research at a different end of the West Virginia Code that normal and came across a provision that made absolutely no sense to me. It’s WV Code §2-1-2, titled “Ancient Lights” for those playing at home:

The common law of England in regard to ancient lights is not in force in this state.

The background for this is that the prior section (WV Code §2-1-1) adopts English common law “except as altered by the general assembly of Virginia” before June 20, 1863. In other words, we adopted Virginia’s law as is when we left the commonwealth during the Civil War. But apparently it was important to exclude from that this law on “ancient lights.” So what are we missing here in the Mountain State?

Turns out it’s a right to light! In some places, at least. Specifically, it’s a kind of easement, which is a property interest that someone has in someone else’s property – think of someone who has the legal right to use a path across their next door neighbor’s property. In England, if a person has a building with windows that for 20 years have received daylight they can prevent someone else from building in a way as to obstruct the light.

Thus, you have things like this on some old English buildings:

Ancient_lights_signs_Clerkenwell FULL

Pic by Mike Newman via Wikimedia Commons

As it happens, West Virginia isn’t alone in not adopting this doctrine, so very few Americans actually have an enforceable right to light. Which is a shame, since, as the song says, we all need some light.

What Do Verdicts Mean?

Recently there was a small kerfuffle in parts of the atheist blogosphere over, of all things, the guilt of innocence of Jerry Sandusky. Sandusky, you’ll recall, is the long-time assistant to legendary Penn State football coach Joe Paterno who was convicted on dozens of counts of child sexual abuse related to his position there. I’m less interested in the specifics of this case than I am about one particular argument made that raises an interesting question about the criminal justice system.

Things kicked off with a review in Skeptic magazine of a book, The Most Hated Man in America: Jerry Sandusky and the Rush to Judgment, which argues that Sandusky’s trial was tainted by recovered memory therapies and led to a wrongful conviction. The book’s got favorable blurbs from memory expert Elizabeth Loftus and false confessions expert Richard Leo, two names that make my defense lawyer ears prick up. The review was then favorably discussed by some of the atheist heavyweights, including Jerry Coyne and Daniel Dennett.

Others in the atheist blogopshere pushed back, wondering how skeptics could defend Sandusky. While some offered take downs of the review itself, others simply argued that the issue was settled because of Sandusky’s convictions. The leading proponent of that position was PZ Myers who wrote (links removed):

They’ve published a defense of Jerry Sandusky! Look, Jerry Sandusky was found guilty of 45 counts of child sexual abuse. He’s a convicted pedophile. The prosecution brought in a long train of witnesses and evidence of criminal behavior spanning at least 15 years and 10 victims, and this case found him guilty in a community that was full of fanatical Paterno/Sandusky defenders. Anyone remember the riots and protests when the Paterno empire fell? You can’t have a witch hunt when the targets are regarded as holy saints — the evidence was just so overwhelming and undeniable that even angels by repute could be defrocked at last.

Myers may be right about the weight of the evidence, but what I’m more interested in is the idea that because Sandusky was convicted at trial that it’s somehow wrong to examine the evidence against him. After all, the jury has spoken, right?

Except we know that juries get it wrong. Not all the time, certainly (and an overwhelming number of cases never get to a jury anyway), but enough for it to be a concern:

In the past quarter-century, the work of dogged attorneys and advances in forensic science have exonerated more than 2,150 men and women, 161 of those from death row. The Innocence Project, a New York–based nonprofit founded by Barry Scheck and Peter Neufeld in 1992, has freed more than 200 people and spurred the creation of numerous smaller organizations around the country devoted to the same mission. (From 2012–2015, I was the director of the Loyola Law School Project for the Innocent in Los Angeles.) By some estimates there are tens of thousands more wrongfully convicted prisoners languishing behind bars.

Given that, what kind of deference should the public give to guilty jury verdicts?

A quick aside on non guilty verdicts. It’s hard to read anything at all into those, since there are so many reasons why such a verdict could be returned. Maybe the prosecution completely failed to prove its case, or maybe it couldn’t meet the final hurdle to of reasonable doubt. Or maybe the jury nullified in light of sufficient evidence. With a not guilty verdict it’s hard to say much beyond “that guy hasn’t been convicted of anything.”

Back to guilty verdicts – what kind of weight should the general public give them? I may lose some of my defense attorney cred for this, but I’m going to say a lot. The law likes to use lots of “rebuttable presumptions,” things that are taken as true, but can, with sufficient evidence, be shown to be false. For example, in Federal court if you’re arrested on just about any drug offense there’s a presumption that you should be held without bond. You can argue your way out, but it relieves the Government of the need to argue your way in.

I’d grant guilty verdicts that kind of presumption because it’s the one time when a group of people are given one job only – evaluate the evidence presented and, using the filter of the judge’s instructions, determine whether the defendant did it or not (whatever “it” is). Everybody else in the courtroom – the lawyers, the judge, the spectators, the press – all have other things competing for their time and attention. Only the jurors have the clear job of listening to every word of testimony, looking at every exhibit, and deciding what it means.

It’s not a full proof system, for sure. The jurors only hear the evidence presented in court, so if the defendant has a shitty lawyer or a prosecutor who is pushing the boundaries it could present a skewed view of the case. In addition, the rules of evidence pare down the universe of facts that a jury can consider, leading to situations where the “well informed” are “those outside the courtroom.” And, finally, the case itself might be tangential to whatever the defendant is really accused of doing. That Al Capone was convicted of tax evasion does little to show, one way or the other, that he was a mob boss.

Which is why I think a rebuttable presumption is the way to go. It’s perfectly right to say because he was convicted of dozens of sexual abuse counts against children, Sandusky probably actually molested them. But it’s not an ironclad guarantee, as Myers and others seem to suggest. Those who would rebut the presumption, however, have a lot of heavy lifting to do.

The_Jury_by_John_Morgan

The Jury (1861) by John Morgan, via Wikimedia Commons

Weekly Read: The Road to Jonestown

There’s a passage in Jeffrey Toobin’s book on Patty Hearst where, after the heiress is captured, her kidnappers demand the Hearst family set up a from scratch program to feed the poor. Various groups come out of the woodwork to try and run the program, including Peoples Temple, the cult led by Jim Jones that, a few years later, would mostly die out in the Guyanese jungle. Toobin presents it as a freakish aside, the intersection of two infamous historical figures. After reading Jeff Guinn’s The Road to Jonestown it becomes clear that there wasn’t anything freakish about it – Jones and his followers could have pulled it off.

That is, perhaps, the most interesting thing about Guinn’s book, which takes a deep dive into the founding of Peoples Temple and the founding, if you will, of Jim Jones. Born poor in rural Indiana Jones gravitated toward two things when young – social justice and fire-breathing religion. Neither of his parents were religious, but he had a neighbor who was constantly on the prowl to recruit souls for Christ and she exposed Jones to her church. He took to preaching and honed a miracle-working approach in Indiana that would serve him well for decades. It was also the spark of the dark charisma that would lead to so many more than 900 dead in Guyana.

Fact is, Peoples Temple got things done for people who were too often left behind by society. Jones and his followers helped drive desegregation in Indianapolis. Both there and later in California they ran nursing homes, drug treatment programs, and, yes, food giveaways. All those programs were successful (at least as successful as other similar programs) and properly run.

The problem was that, from the beginning to the end, Peoples Temple was always the fiefdom of Jim Jones. All the good work came at the expense of a staggering cult of personality that merged with Jones’s rising paranoia (aided, no doubt, by a cocktail of drugs he used to work and sleep) to make for one of the more frightening cults in recent history. Jones was Father, at the very least, and perhaps God herself (or some reincarnation of past holy figures, like Buddha or Jesus) and the only one who could save his people from the destructive world around them.

At first the destruction was nuclear war. That was reason Jones moved Peoples Temple from Indianapolis to California, setting up shop in a rural area north of San Francisco that supposedly was far enough away from primary targets that, with favorable winds, residents could survive a nuclear attack. That fear didn’t keep Jones from barnstorming around the country on a fleet of busses doing revival shtick, however.

The threats quickly became more personal. There were defectors from Peoples Temple, people who either saw Jones for the con man he was or simply grew tires of giving everything they made and owned to the organization. To Jones each was a potential villain, providing fodder to the press or authorities about what went on in the increasingly secretive group. Journalists started to close in, too. The final straw was a group of former members who focused on getting other family members, including children, out of the group who, they claimed, were being held against their will.

Although Jonestown itself had been founded earlier, these existential threats are what drove Jones and most of his followers there well before the settlement was ready to support them. Harsh conditions, piled on top of Jones’s paranoia and iron grip over his followers, soon degraded into homicidal/suicidal tendencies. Jones simulated an attack on the compound and later staged a mock suicide, just to make sure everyone reacted in the proper fashion. By the time San Francisco-area Congressman Leo Ryan arrived in November 1978, the keg was set to blow. Ryan and several others were murdered at a nearby airport, while Jones led the mass of his followers in Jonestown to their death via a mix of cyanide and Flavor-Aid (not Kool-Aid, to set the record straight).

More than 900 people died in Jonestown and there’s always been some controversy over what label to apply to it. Jones called it “radical suicide” (?), but given that at least a third of the dead were children it’s easy to say that many of the deaths were flat out murders. Beyond the children there’s evidence that some adults were held down and injected with poison, rather than having drunk it on their own. Still, hundreds of people, at least, appear to have willingly laid down their lives when Jones said so.

The big question, of course, is why? Guinn doesn’t do much evaluation of the aftermath of Jonestown or bring in any kind of experts to attempt to explain it. Instead, he lets the work he’s already done, showing how Peoples Temple developed, do the work. What he shows is that people really believed in Jones. Some believed in his commitment to social justice. Others came at it from a more religious angle, drawn in by the healings and such that Jones performed on the revival circuit. Because once your religion has primed you to believe miracles exist, why would you doubt the con man that actually says he performs them? Regardless, they believed in Jones and the outside world gave them just enough reason to buy into his paranoid rants. More than anything else, they let Jones come to define their world, to the exclusion of any critical thinking or close examination of what he was doing.

It’s hard not to think of Donald Trump while reading The Road to Jonestown. Not because Trump is going to lead us into ritual suicide (with a side of murder) anytime soon (we hope), but because of the freakishly similar way Trump and Jim Jones interacted with the outside world. To Jones’s followers he was the only person who could solve their problems and save them from the injustices of the world. Trump during the campaign repeatedly expressed similar sentiments. Jones never failed – he was only failed by underlings or thwarted by shadowy outside forces. Likewise, Trump never backs a loser and is constantly doing battle with the “deep state” or “fake news.” More than anything else, Jones and Trump share a complete aversion to dealing with reality. That way lies madness, as Jones and others have proven.

Hopefully, we’re not all on the road to Jonestown again, without quite realizing it.

RoadtoJonestown