Pure Drivel

Nine tracks that are supposedly slated for inclusion on Shovels N’ Mulch long-awaited Chinese Environmentalism album have hit the web.

Since we here at the National Post-Industrialist don’t encourage the illegal downloading of music, what instead follows is a track-by-track review of what should now arrive very, very soon (that’s right, Green Peace, get ready to shell out). It should be mentioned that since this is based on the most recent leaked version, the lineup – or titles - of songs could change. The album was gruelingly concocted over the past 14 years by James “Windmill” Mulch and a rotating lineup of session musicians. And the result of all that work?

The ‘album’ opens with the toe-tapping groove of Better (Recycle), but the disjointed and overwrought production quickly leads the song into some pretty murky territory.

The title track, Chinese Environmentalism follows, and with a classic four-chord structure, it is one of the strongest songs on the album. The song is probably about the use of fossil fuels in China, particularly since it includes a mention of “Big Oil”, but with Windmill’s coded lyrical style it’s hard to tell for sure: There are a lot of references to “it” and “them” that avoid elaboration.

The album continues solidly with E.P.A., which definitely wins the catchy chorus award. In it, Windmill plays the reformed polluter struggling with his efforts to make right, but he could just as easily relating his experience recording this album: “Feelin’ like I’m living inside of this song/Feelin’ like I’m just too tired to care/Feelin’ like I done more than my share/Could’ve been the way that I carried on/Like a broken record for so long.”

Mad at a Gas Car is the November (Acid) Rain of Chinese Environmentalism. Its haunting and repetitive keyboard line oddly recalls Coolants’s Gangsta’s Depleted Ozone, and Windmill makes liberal use of horns and geothermal guitar over an industrial backdrop. It’s a funny combination, but actually it works pretty well.

Fleischmann & The Cold Fusion is almost a return to Appetite for Renewable Energy form. Just not as good.

This (Planet) I Love betrays Windmill’s fascination on the record with trip-hop beats, which here are entirely out of place when set against tinny, multi-tracked guitars and a riff that briefly recalls Smashing Pumpkins’ Today. Has Windmill been in a coma since 1997?

If the World (Would Learn to Recycle) is where the album really falls off. With its porno groove, cheesy synths and misguided marriage of flamenco guitar and electric triangle riffs, it manages in one song to encapsulate the entire contents of a music store’s 99-cent recycle bin.

The Oil Use Blues has Windmill channeling Queen and Elton John just like of old, but sounds like it was cobbled together from a whole bunch of fragmentary ideas. On the upside, the guitar sounds like Heat snuck back into the studio without Windmill noticing.

On There Was a Time I Littered, a trip-hop opening once again falls into cacophony of piano, strings, wah-afflicted guitar solos and endless drum fills. It doesn’t sound especially structured – more like an end-of-record jam. It’s too cluttered. Original Shovels’ records sounded like every note was intentional, and judging by the cost and time it took to make this record, that was certainly Windmill’s intention here. Unfortunately the result does not reflect that.

In general, the album feels like an unfocused patchwork of anachronistic musical styles. With all the hype and expectation built up over 14 years, it was not unreasonable to expect a masterpiece, and while there are certainly some moments on this alleged record that stand up to some of Windmills earlier output, the result is primarily a collection of incoherent false starts. Of course, the album isn’t out yet, and the final product could very well be an improvement on what has been leaked so far. So for now, we’ll give poor Windmill the benefit of the doubt – especially since we don’t want to scare him back into his ecologically sound wilderness hold.

Wondering what the hell is going on? See here.

So I accepted a job offer working at a big firm. I like the people and I think I am going to like the work.  However, I just never saw myself going that way.

It seems like September is going to begin a strange and new chapter in my life.

Because I’m in that kind of mood. Here is my favorite Dylan song.

Evrybodys building the big ships and the boats,
Some are building monuments,
Others, jotting down notes,
Evrybodys in despair,
Evry girl and boy
But when quinn the eskimo gets here,
Evrybodys gonna jump for joy.

Come all without, come all within,
Youll not see nothing like the mighty quinn.

I like to do just like the rest, I like my sugar sweet,
But guarding fumes and making haste,
It aint my cup of meat.
Evrybodys neath the trees,
Feeding pigeons on a limb
But when quinn the eskimo gets here,
All the pigeons gonna run to him.

Come all without, come all within,
Youll not see nothing like the mighty quinn.

A cats meow and a cows moo, I can recite em all,
Just tell me where it hurts yuh, honey,
And Ill tell you who to call.
Nobody can get no sleep,
Theres someone on evryones toes
But when quinn the eskimo gets here,
Evrybodys gonna wanna doze.

Come all without, come all within,
Youll not see nothing like the mighty quinn 

. . . .

As so often happens in the law, the debate on the death penalty turns on the burden of proof. Most of the recent scholarship seems to argue, if simplistically, that the burden should be on the state to justify an execution and not on the opponent to justify an immunity from execution. The purpose of this piece is to challenge that assumption.

My argument is simple; (1) it is in an inherent power of the federal government to make life or death decisions regarding its citizenry, and (2) there is no good reason why this power should not extend to those convicted of heinous crimes. I will attempt to prove (1) by showing that this power can be exercised actively (military action), passively (FDA approval and soveigrn immunity), or even delegated onto the citizenry (codification of the justifications of self-defense and necessity). 

 . . .

Let me know what you think.  

I can’t decide if this is genius or madness. I leave it to you dear reader. (Pictured is the flesh eating bacteria).

Ex-president’s death ruled a suicide
By Lisa Sunderson, CBS.ChimpWatch.com

MALIBU (CBS.CW) — The SACS corruption saga took a tragic turn Thursday as former SACS President Fredrick P. Ohh-Ohh-Chee-Chee-Ah, who had on Wednesday admitted to his involvement in a large-scale bribery and racketeering scheme, killed himself. 

According to police in Malibu, California, Ohh-Ohh-Chee-Chee-Ah, 54, was found dead in his garage on Thursday morning with a gunshot wound to the head. Police said they found a suicide note and no sign of foul play.

A county official said he ruled the death of Ohh-Ohh-Chee-Chee-Ah, who’d resigned as president on Wednesday, a suicide. He also ordered an autopsy.

“We are deeply saddened by the tragic loss of our friend and colleague, Fredrick P. Ohh-Ohh-Chee-Chee-Ah,” read an SACS statement. “Our thoughts and prayers go out to his family and friends.”

Capt. David Marcaurele of the Malibu Police Department said a police officer stopped by the Malibu home after a neighbor reported hearing a gunshot.

“From our investigation, everything points toward [suicide],” Marcaurele said.

Details of the suicide note were not being released Thursday. Marcaurele declined to comment on the note’s contents. ABC News reported late Thursday that in the note, Ohh-Ohh-Chee-Chee-Ah said he was distressed about his recent wrongdoing and concerned about testifying in hearings, possibly against his former colleagues. He also cited concerns about impact that his recent indictment would have on his family.

In a letter that SACS employee Sherron Watkins wrote to then-Chairman of the SACS board, Micheal Eek-Eek-Oooo, in August, she mentioned Ohh-Ohh-Chee-Chee-Ah as she questioned the organization’s recent political and legal victories.

“Fredrick P. Ohh-Ohh-Chee-Chee-Ah complained mightily to all who would listen about the inappropriateness of our transactions with Congressman Thompson,” Watkins wrote.

Ohh-Ohh-Chee-Chee-Ah implicated Congressman Bill Thompson, R–Minn, and several other high ranking Washington officials during his press conference on Wednesday. Congressman Thompson abruptly resigned his post early Thursday morning.

“He was going to be a key part of figuring out what happened here,” said Marcus Osler, spokesman for United States Attorney for the Northern District of California, Susan Filperstein.

There is an open call over at Micah Circuitry to give me a new nickname.  I have raised objection to “the Gourd” and “Gordo.”  Do you guys have any other ideas?

While we are on the subject, can we think of a good we have a nickname for Miles? I know he preferrs “Micah,” but can we do better?

P.S. Over the course of my life I have gone by many names. Many of them were very silly. Do your worst.  

We have just received reports that Frederick P. Ohh-Ohh-Chee-Chee-Ah, President of the Society for the Advancement of the Chimpanzee Species has called a press conference this afternoon so that he may formally step down from his position at SACS.  There has been no confirmation whether this resignation is in response to recent rumors that Mr. Ohh-Ohh-Chee-Chee-Ah was involved in a high-end vice sting. 

Mr. Ohh-Ohh-Chee-Chee-Ah is one of six known talking chimpanzees.  Of the six, he is the only one know to have attended college (Princeton, Harvard Law ).  After becoming an American citizen as part of Ronald Regan’s amnesty program, Mr. Ohh-Ohh-Chee-Chee-Ah became a leading advocate for animal rights and the head of the SACS.  He has published several books including Rights at Any Intellect and Animals for Change.

The author of Micah Circuitry – *cough* Miles Filperstein *cough* — contacted me yesterday, and apparently in an effort to reassemble his shattered credibility, sent along this picture of a Minnesota Drug Penguin “standing guard” over a suspected narcotics pusher.  Miles — I mean “Micah” — assures me that that this picture was taken from his bedroom window and that such interactions have become all too common on the streets of the twin cities.

For those that don’t know, the Minnesota Drug Penguin Program (DPP) began in 2003 as a small pilot program and has grown exponentially since then.  Currently, there are nearly 120 “avian officers” employed in Minnesota police departments.

Despite early critical acclaim, the programs has come under recent fire as further studies have called into question the accuracy of the penguins’ drug detection abilities. 

In the United States, there is currently no mechanism for criminal defendants to be found innocent. The closest thing to exoneration that an accused can reasonably hope for is a “not guilty” verdict at the end of an expensive and stressful trial. Even then, the stain of the accusation often follows the former defendant for years afterwards. Ideally, this should not be the case. Both prosecutorial discretion and the grand jury were meant to act as filters that eliminated baseless or otherwise untenable accusations, but times change and these two mechanisms no longer provide the protection they once did. Therefore, in the interest of justice, state and federal governments should consider establishing a procedure whereby an accused defendant can move for summary judgment.

II. How it Would Work

In practice, a criminal summary judgment motion would likely resemble the federal summary judgment standard for civil cases. Under the civil standard, entry of summary judgment should be granted if “the pleadings and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that a party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). A disputed material fact is genuine if the evidence is such that a jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Practically, this means that the movant could proceed in one of two ways. First, he could challenge an essential element of the prosecution’s case, and thereby accept the initial burden of demonstrating that there is no genuine issue of material fact as to that element. If the accused chooses this option, then the government would then have the opportunity to rebut his claims. For purposes of this option, a genuine issue of material fact exists if it appears possible that a reasonable jury could find that the prosecution will prove the contested element beyond a reasonable doubt. A successful motion of this first type would be a judgment of “not guilty.”

In the second alternative, the accused could opt to provide conclusive proof of a justification (e.g. self defense, necessity, etc.). To do this he must show that any reasonable jury would find that the required elements of the justification were proven by a preponderance of the evidence. Assuming the accused meets this initial burden, then the prosecution would have an opportunity to contest one or more of the elements of the justification. A grant of summary judgment based upon affirmative proof of a justification would properly be styled a “judgment of innocence.”

III. Advantages

Attorneys familiar with criminal law will probably wonder whether, in practice, this proposed procedure would merely duplicate already existing probable cause hearings. It will not. The only remedy that a defendant can obtain from a successful challenge to probable cause is dismissal of the charges against him “without prejudice.” Conversely, a successful summary judgment motion would result in a final judgment on the merits, thereby implicating the preclusive doctrines of res judicata and collateral estoppel.

There are several advantages to allowing for preclusion: first, defendants are insulated from further meritless prosecution; second, prosecutors who overcharge defendants in an effort to coerce “strategic pleas” (a plea to a lesser charge made by an innocent person because they do not wish to risk being found guilty of the charged crime) are punished; and third, wrongly accused defendants avoid further damage to their reputation, and stymie the additional (often ruinous) costs incurred in defending even the most meritless of cases.

One point of clarification before moving on: because summary judgment motions are handled pre-trial, the double jeopardy clause of the Fifth Amendment would likely not be implicated by the proposed change. This means that there would be no constitutional bar to the government appealing an unfavorable pre-trial judgment, and that additional prosecutions on charges that are related, but not lesser included, might be barred to the extent that these later actions are inconsistent with principles of res judicata.

IV. Likely Objections and Solutions

Of course, it is expected that opposition to this change would be significant and primarily centered on practical appeals, like the increase in time and money needed to bring an accused to trial. While determining the dollars and cents cost of this procedure should be left to the economists, any bottom line figure will be (at least partially) offset by the money the government will save by eliminating legally unwarranted prosecutions and trials. Additionally, there are three potential limitations which, if implemented, could significantly lighten any added load on the system.

First, criminal summary judgment could be made available only to those defendants who are accused of more serious crimes, like felonies or crimes by a large maximum sentence. For example, in the federal system, a criminal defendant charged with possession of cocaine with intent to distribute (a crime carrying a twenty [20] year maximum) might have the ability to file a summary judgment motion, while one charged with misprison of a felony (three [3] year maximum) might not.

A second potential limitation that would help diminish gross overloading of the courts would be an appellant standard of review that gives the trial courts broad discretion to grant or deny this motion. If the review process took on a character similar to the federal appellate courts’ review of decisions to remand a case, then trial courts would generally be entrusted with the final decision to grant or deny a motion of this type, and appellate review would be limited to certain key situations. In this way, appellate courts could ensure that they were not flooded with litigation.

Finally, how the courts treat the interaction between a motion of this type and the defendant’s Fifth Amendment protection against self-incrimination could provide the most dramatic limitation. For example, if an attested affidavit by the defendant operates as a complete waiver of the defendant’s Fifth Amendment protections against self-incrimination, then use of this motion will likely be curtailed. However, if sworn testimony offered by defendants through their own affidavit is treated much the same way as a defendant’s testimony during a suppression hearing, (e.g. useable at trial only for impeachment purposes) then use of the criminal summary judgment motion would be less constrained.

V. Conclusion

There is no doubt that the state and federal criminal justice systems, as they are presently composed, do not provide a wrongfully accused defendant with adequate means to clear his name. Therefore the time is ripe for a new procedure to fill that roll. Transplanting existing summary judgment procedures and tailoring them to the realities of criminal law could achieve just that.