Author Archive - Todd


Standard of Proof Trivia

In civil actions, they are various standards of proof that a prosecutor must meet in order to prove that an element of the tort has been met (as must a defense lawyer if asserting an affirmative defense). Those standards can vary somewhat state by state or tort by tort, but they are generally summed up as a "preponderance of the evidence." In criminal cases, that standard of proof is raised to the familiar "beyond a reasonable doubt." But there is one particular situation where an even higher standard of proof is required. Can you identify the situation? For bonus points can you point to where this standard is found and what the standard is? This question is limited to American jurisprudence. Read on for a hint. Hint: It would be very difficult for this standard of proof to be changed. Read on for the answer. The crime is treason. The Constitution, in Article III, Section 3, Sentence 2 reads: "No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court." The two witness requirement is unqiue is criminal law and is the only standard of proof that is mentioned in the Constitution.

Weeds: The Most Overrated Show on Television

The Showtime hit series Weeds has garnered lots of attention, including right here by our very own JessB, more so than other Showtime series like Huff and Brotherhood. Perhaps it is the central conceit of having a suburban white women sell marijuana, giving twenty-something white kids the pleasure of both the familiar (moms) and the unfamiliar (moms dealing weed). "Weeds Nights," where, surprise, surprise, mostly white, twenty-somethings get together to watch a new episode when it airs are becoming increasingly common. I can understand if this is just an excuse to get together with friends to get high, but if that were the case, don't be so literal. Either go with something classic like dropping LSD and renting El Topo or think obliquely and snort coke while watching The Wire. While Weeds is not atrociously bad, it does not deserve the level of praise it is getting from the general public (i.e. my friends). Here are three reasons why it is overrated: 1. Critiquing suburbia is boring and unoriginal. Weeds takes place in an idyllic development called Agrestic which, SPOLIER ALERT!, hides something sinister! What would really be radical is to create a show that does not expose the hideous underbelly of suburbian existence. At this point, film and television have squeezed every iota of interest out of the suburbs. We get it, suburban people are two-faced. The last time this overused trope was successfully implemented was in the opening shot of Blue Velvet by David Lynch and that was over 20 years ago (and, no, I did not forget the equally overrated American Beauty). A poststructuralist critique of the Peloponnesian War has more relevance than this show. Weeds is the television equivalent of the phenomenon where someone yawns because they see someone else yawn. And just in case you are very, very slow, Weeds helpfully clues you in to its abundantly obvious premise in the opening credits, where it shows carbon copies of suburbanites doing typically surburban things, like shopping and running. Get it? Do you get it? In fact, Weeds assumes the viewer is a cretin who cannot figure out the underlying context without being pummeled over the head with a schtick. Get it? Do you get my little joke? It is a play on words. Homophones? Get it? Let me know if you don't. 2. Weeds trafficks in cliched stereotypes. The creator of Weeds, Jenji Kohan (disgression: the creator's name, whether given at birth or invented later, evokes a level of loathing unseen since BoingBoing egoist and man-woman, Xeni Jardin nee Jenny Gardener, hit the scene), is convinced she is exploring new territory with her show. While she may be delusional on that front, she sure has a knack for reproducing racial stereotypes. The black mother is a large, domineering woman who rules the roost with pithy snark, the black daughter is a young, unwed mother with a surly attitude, the black son is a drugdealer, the Hispanic woman is a maid, the Hispanic man is a drugdealer, the young Indian guy is a neutered, clueless naif, the young white son is a smart but awkward loser, the Jewish uncle is a conniving parasite, and the Jewish uncle's love interest is a pretty, but masculine, militaristic Israeli. I am looking forward to next season where they will introduce a mincing gay hairdresser and a studious Chinese student. I can't tell if this is a groundbreaking new comedy or a KKK pamphlet. Regardless of intent, this is at the very least lazy and offensive hack writing. The only character who can't be summed up in three words is the middle class, white woman protagonist. Hmmm, I wonder how Jenji grew up? 3. The opening theme music and the various songs that close each show are annoying and obvious. This is really two complaints and I'll address the second one first. Each episode "dramatically" closes with a song. There is nothing necessarily bad about that, Deadwood does the same thing to great effect, even when they employ tunes that are jarringly contemporary. But Weeds, in keeping with its holistically terrible approach to scripting, tends to choose the most obvious possible song to close out each episode. Are we supposed to feel bad for a meanspirited character? I know, let's use "Sympathy for the Devil" by The Rolling Stones. Get it? Seriously, do you get it? If you corraled ten people with a modicum of music knowledge and showed them the final scene in a Weeds episode, 8 out of 10 could guess what song will be played over the closing credits. My problem with the opening theme music has more to do with its repetitive use over time. The "Ticky Tacky" song is, when encountered for the first time, fairly amusing. It is quirky, catchy, and original, everything that Weeds wishes it was, but is not. But upon hearing it for the 1000th time, its idiosyncracies become grating and cloying. The second season attempts to mitigate this by using different covers of the song each episode. While a valiant effort, this ploy backfires because it highlights the many ways in which the theme song is obnoxious and obvious. Please play this GooTube clip loudly twenty times in a row to get a taste of what I mean: [youtube]eXLWa1UZISw[/youtube] While there are far worse television shows, Weeds seems to have a lot of cultural capital at the moment. In reality, its coffers are empty and it stays solvent only by employing an array of deceitful accounting tricks. And just like Enron, this piece of shit show will implode, leaving a lot of very unhappy viewers in its wake. When that day comes, the epitaph will read: "Here Lies Weeds, a Show that Always Asked the Question: 'Get It???'"

U.S.C. 1001, A Felony-Generating Federal Felony Statute

It is a federal crime to provide false statements in any matter within the jurisdiction of the executive, legislative, or judicial branch, with some limited, but important, exceptions.* If one is within jurisdiction and willingly and knowingly makes a false representation, uses a false document, or conceals by trick a material fact, one is subject to 18 U.S.C. § 1001. Violation of Section 1001 can result in up to five years in prison. It is similar to perjury, but one does not need to be under oath, so its application is broader and, in a very specific way, insidious. Read on to find out why. The vast majority of applications of this statute are entirely fair and reasonable. But there is one circumstance where it can be exploited to reach unfair results. This is known as the "Exculpatory No" Doctrine. This doctrine descibes a situation where a federal agent asks if you committed a crime, and you have, but you say "no." This situation falls within the literal reading of the statute. It is a simple syllogism: "No" is a statement. That statement was false. Therefore, you have made a false statement, which brings you under the aegis of Section 1001. There are a multitude of problematic situations which may arise if the Exculpatory "No" is considered a false statement, many of which have been laid down by a concerned Justice Ginsburg in Brogan v. United States. Let's examine some of the particular issues that flow from this application. First, this gives a sickening degree of power to prosecutors or federal agents to generate felonies. This can take multiple forms. A prosecutor may already know and have proof of Person A's guilt, although Person A does not know that the prosecutor has such strong evidence. The prosecutor can purposesly ask Person A questions about his involvement with criminal enterprises assuming he will deny involvement like any normal and rational person would. Soon as Person A says "No," he just tacked on potentially five more years to his sentence. What purpose does this serve? The prosecutor was not misled by Criminal A's falsehood. In this scenario it is purely an ancillary crime which seems to serve no public good besides allowing prosecutors to arbitrarily increase someone's sentence. Another hypothetical: A prosecutor can only prove two of the four elements necessary to convict Person B of a crime. Without proof of the remaining elements, there can be no conviction. The prosecutor feels she knows that he is guilty, despite the fact she does not have enough proof, so she decides to trick him into committing a Section 1001 felony so she can mete out some punishment. The prosecutor asks Person B about whether he committed the elements she does have proof for and Person B predictably denies any involvement. Now the prosecutor has a federal felony on her hands, creating it out of thin air, and she can achieve her desired punishment without having to actually prove anything about the underlying crime. This strikes me as even less fair than the previous example. Instead of adding on more time, prosecutors can manipulate the alleged criminals into committing a new crime and then use the new crime as a substitute for what they couldn't prove otherwise. A second concern is that federal agents and prosecutors can lull people into exclaiming exculpatory "no's" by creating informal situations in which the alleged criminal will not realize the severity of his actions. In this scenario, a federal agent stops by to chat with Person C about alleged corruption at their workplace. Person C gives the federal agent the information he wants to know, but leaves out any details about his own involvement. At the end of the interview, which seems to Person C to be about others, not about himself, the federal agent asks if Person C was involved in any illegal shenanigans at the office. Person C, thinking that he is not the subject of the investigation and does not want to implicate himself for no reason, denies any participation. The federal agent, knowing all along that Person C was involved, has just tricked Person C into committing another felony. Now, if Person C knew that there were severe consequences to his lying, he may have evaded the question entirely or refused to answer or even told the truth. If Person C was able to have an attorney present who understood the consequences of saying "no," he could have advised his client to proceed differently. It was only the lulling effect of the informal chat that tricked Person C into denying involvement, while in a more formal setting, like a deposition, Person C would have been able to make more educated choices. Does it strike you as unfair that a five year prison sentence could hinge on such vagarities? Finally, Section 1001 can be used as a way to create federal jurisdiction when there was previously none. Federal jurisdiction is created in one of two ways: you either have litigants from multiple states or you have someone charged with a federal crime. Otherwise, claims are litigated at the state level. In this final scenario, someone is convicted of violating a state law, but the FBI comes in to question the person. If that person denies their involvement when they really were involved, all of a sudden there is a federal felony and the federal government, with all its resources, can now prosecute. Venue and jurisdiction battles are frequently fought because where a case is litigated can confer specific advantages or disadvantages depending on the nature of the case. Section 1001 gives the federal government an ace up its sleeve to bring matters otherwise fully within a state's jurisdiction to the federal district courts. Until the Supreme Court ruled on the issue in Brogan, most federal circuits created an exception for "exculpatory no" situations. Those judicial creations are no longer valid. Luckily, the Department of Justice does not prosecute Section 1001 violations in these circumstances according to their internal guidelines. They understand that there are troubling overtones to such prosecutions that seem to strike at a fundamental unfairness. In other specific circumstances, the Fifth Amendment would protect one, and it seems illogical to deny similar protections in more informal situations. But DoJ guidelines are merely that, guides for their attorneys. They do not have the force of law and never will. Congress should amend the statute to explicitly carve out an exception for "exculpatory no" scenarios in order to preserve some portion of whatever fairness remains in the criminal justice system. *The two exceptions are for certain statements made by parties or attorneys in judicial proceedings and certain statements made in connection with Congressional hearings.

Nietzsche Family Circus: Die at the Right Time

There are a lot of Family Circus detournements* on the Internet. I chalk it up to two factors: 1. The strip is annoyingly, cloyingly terrible. 2. It has decent art and lots of characters. The former provides the impetus, while the latter increases the interesting options. Proof: Ziggy is equally, if not more, terrible,** yet it only ever really features Ziggy, so manipulation possibilities are less dynamic and therefore less interesting. My favorite Family Circus mash-up is The Nietzsche Family Circus, which combines random Family Circus panels with random qoutes from that powerfully impotent philosopher, Friedrich Nietzsche. The combinations often seem surprisingly deliberate and relevant, but that could just be the pattern matching module in my brain creating meaning out of nothingness. *This is a fancy way of saying "fucking around." **I once thought of a really great Ziggy cartoon: Ziggy is standing on a slightly bowed horizon while a crudely drawn smiling sun sets (or is it rising?). Ziggy is looking directly at the reader and the word balloon says, in shaky, trembling lettering, "Everytime I think I am in a groove, it turns out I am just in a rut." I am truly an ubermensch.

It is OK to Entice 16-Year-Old Boys to Have Sex

I have absolutely no problem with Rep. Foley's actions, specifically IMing and corresponding with 16- and 17-year-old boys in a sexual manner. I would have no problem if he induced them to send naked pictures of themselves to him. I would have no problem if he convinced them to meet him and have anal sex. The issue is his moral hypocrasy, not his actions. And to condemn his actions may betray one as a rank homophobe. I generally think that 16 is a reasonable age of consent. It is the age of consent in many states, so it seems to have widespread approval. Yet, the discourse about Foley has often been implicitly, and in some cases explicitly, about the age of the boys involved. I would hate to see the righteous indignation exhibited by many Dems find itself lost in a thicket of its own hypocrasy. Let's look at two declarations and see if there are any corollaries involved. 1. Heterosexual lust for teenage girls saturates our society for better or worse and most people do not get lathered up into a rage about it. 2. Homosexuals and heterosexuals should be treated equally in all substantive areas of the law and should furthermore have moral equivalence when one debates their actions. If you don't agree with both these postulates, then stop reading. But if you do, then the only natural conclusion that can be drawn is that the level of ire directed at Foley's actions should be the same level of ire directed at the sexualization of 16- and 17-year-old teenage girls or more specifically, the level of ire directed at an older man trying to seduce a 16-year-old girl. Girls that age are often sex objects and openly referred to as such both in private conversation and in the media. Many may find an older man lusting after a younger girl to be uncouth and possibly disgusting, but it is accepted enough that there is little public outrage when one encounters such a scenario. The dark undercurrent of the Foley affair is that people and the media seem to be implying that it is sick and wrong, to the point of it almost being criminal, for Foley to have sexual conversations with boys that young. Because this response is so divergent from the equivalent response to such heterosexual shenanigans, it implies a deeply-rooted homophobia saturating not only the media, but the pundits from both parties. The arguments centered around the use of public office or power to entice sex, the moral hypocrasy of speaking one way and acting another, or the covering up of worrisome practices by those in power are all possibly valid condemnations of Foley and the Republicans in general, but this subtlety is lacking in much of the discourse I have been seeing in both the MSM and the blogosphere. I hope that once the furor dies down, a more careful dissection of this scandal can be conducted, without the pall of homophobia infecting the conversation. ADDENDUM: Consider the story of Representative Dan Crane, who did more than possibly solicit sex with a 17-year-old page, he actually did have sex with the page! But she was a female and he was merely censured. But to be fair, the Studds debacle did not generate as much media heat, and that situation was more egregious than the Foley situation (minus the hypocrcasy). FURTHER ADDENDUM: Drudge Report is reporting that the Foley accuser was 18. Are we upset with Foley because he abused power, because he is a supposed pedophile, or because he is gay? The first is legitimate, the second is untrue, and the third is the dirty secret that fuels some people's outrage whether they realize it or not.