Outside Counsel

The case against my friend Lawrence Brose now moves into the sentencing phase, which means that it is far from over. This, in turn, means that Brose is still not really able to comment-- but I still can, and have, and will.

First of all, this piece by News 4 Buffalo reporter Elysia Rodriquez, is the most balanced and fair coverage the case has received anywhere. The appalling lynch mob reporting by the Buffalo News up to now was one of the reasons I became as involved in this matter as I did in the first place. With several others we determined that an informal 'truth squad' was necessary to counter the poison in the atmosphere.
 Second, what is the take-away from the plea? This is a complicated question, but anyone who thinks to ask it should know several things. Six years of a legal battle is nothing like an ordinary plea. The defense was pitched, and expensive. My estimate is that there was at least another year of expensive legal knife fighting to go before trial. What changed was that the US Attorney's office proposed a plea. This is rare. Typically DOJ will accept guilty pleas to the top count of the indictment-- the most serious charge. In this instance the charge was reduced, from 18 USC § 1466A Obscene visual representations of the sexual abuse of children, to18 USC § 1462- Obscenity. The superseding instrument referenced "viewing" a single image, instead 'possessing" over a thousand referenced in the original indictment. What happened? It seems pretty clear to me that the US Attorney's office acknowledged the weakness of its case, and that Lawrence, with some space between his back and the wall for the first time in six years, elected to move forward with his life, away from crippling legal fees and toxic accusations, and back to making art and being a positive force in the Western New York arts community. Trial lawyers all know that litigation is something that you do until the escalation reaches the point of irrationality. When a rational choice presents itself, rational persons accept it. This plea means that Lawrence will not be tagged as a sex offender (anyone who knows him will realize what a grotesque thing that would have been). The downside risk of sentencing is substantially mitigated, and as part of the agreement the prosecution has agreed that it will not oppose a "non-guidelines" sentence-- something that is even more unusual than an agreement to accept a plea to a reduced charge.

Finally, a thought about the process. One of the things that I've noticed as this matter ground on was how surprised many of Lawrence's friends were by the grueling quality of a criminal prosecution. The right against self-incrimination means that a defendant has to expect that anything he says to anyone turns that person into a potential witness in the case against him, and as a result the very people one might turn to for emotional support are effectively pushed away at the exact moment when sharing a confidence in exchange for emotional support is the most important thing in the life of the accused. It is alienating, and exhausting, and isolating; and the prosecution knows this and exploits it. The people who have stood with Lawrence have my respect-- it isn't easy to take a thing like this on faith. It is particularly difficult, I think, when the process is so unfamiliar. We think we know about how the criminal justice system works, but a case like this takes a lot longer than 43 minutes with time out for commercials. The prosecution of Lawrence Brose is being carried out in our name-- it is literally The United States of America vs. Lawrence Brose. The most powerful nation in the world against a solitary artist, possessed of pretty much all of the resources that you'd expect an experimental filmmaker would have. We should, as a community, be better aware of the other things that are being done in our name, and we ought to be calling for greater accountability and transparency.

Unless it was written by the late Doug Ireland-- or me-- the coverage of the Lawrence Brose case has been pretty shoddy. Today in the Buffalo News Colin Dabkowski gets it right, reporting just the plain facts. For those just tuning in, Brose has been fighting the charges against him since 2008. He is an experimental filmmaker and a former arts administrator who has exactly the resources you would expect someone with those credentials to possess-- along with the support of a few friends. He is a high-profile defendant charged under a merciless statute, being dogged by a prosecutor's office that has, for all practical purposes, the essentially infinite resources of the United States government. One federal court judge has already recommended that the charges be dismissed, and as the case has unfolded it has become more and more apparent that the government's case is nothing like as clear-cut as was initially thought. Since the government's case is weak, the government's best play is to double down-- if the case were to go to trial tomorrow Lawrence would likely win, but at what cost? His reputation has been trampled on, his savings exhausted. If the case were to go to trial in the ordinary course-- probably about a year down the road the way it is looking-- the result would be the same. Frankly, at this point, even in the unlikely event of a conviction the government will have accomplished it's goal. It has already won by crushing the guy.

It is very easy to talk about artistic freedom when you are standing in a gallery holding a glass of white wine. Standing with Lawrence Brose is a truer measure of one's beliefs. Dorothea Braemer and the other artists who have assembled tomorrow's Censorship Show have my utmost respect.

More for the Lawrence Brose file: this piece, which appears in today's Buffalo News (and was on line last week) represents the culmination of the media strategy we orchestrated. From our first involvement we knew that it was important to make people comfortable with the idea that they should stand with Lawrence. Some people were with him from the beginning, but others, stunned by the charges, needed to be brought around. One way to do that was for the supporters to make their support more public, which we did by asking them to write letters for circulation to the wider community. Those can be found here. The late Doug Ireland wrote a widely distributed piece--  one of the last causes he championed. And then there were the things we wrote-- for Buffalo Spree, and ArtVoice, and AfterImage, each venue selected to reach a different constituency. Some of this was seat of the pants decision-making, but for the most part it was calculated on our part, and it seems to have worked. In the immediate aftermath of Laurence's arraignment a Google search for his name led to page after page of negative news coverage. That is no longer the case.

The sentencing is November 25. Checks can be sent to The Center for Reason and Justice, with "Lawrence Brose Legal Defense Fund" in the memo line. 

A while back, as part of the information campaign that we've been running about the prosecution of Lawrence Brose, Doug Ireland agreed to interview Lawrence-- and I sat in, to be sure that no attorney-client privilege was broached. My writing about this case has been exclusively based on information in the public record-- court filings, testimony and the statements and stories which have appeared in The Buffalo News, so I knew how far Lawrence could go. (It was two years ago-- we know more now, and it is all exculpatory.) Ireland was everything I could have asked one of my journalistic heroes to have been, raspy-voiced, caustic and outraged. The piece he produced was likewise. And now he is dead, which is sad. Everything that I do professionally-- lawyer, writer, teacher-- is really a way of trying to look at and think about things critically, and all my life it's been people like Doug Ireland who have shown me how to do that.

 Two years probation. When Lawrence and I first talked about his case I told him that the criminal justice system is a big, slow machine that only grinds one way. Mercifully, after six years his outcome has left him bruised and abraded, but not crushed or mangled. Make no mistake-- this is a big win. Nearly a hundred people in the courtroom-- it was packed. A big thing was that at the end, when Probation asked about installing monitoring equipment on his computer the judge said, No, that they could access his computer if only they had reasonable suspicion that his use of the computer violated his terms of probation. That's huge, I think-- it tells us that he got it, that he understood that whatever was on the hard drive was there through no fault of Lawrence's. I'll be elaborating on all of this in next week's edition of The Public, but one anecdote that I'll share here and not there is this: after the court adjourned and everyone filed out into the hall, one of the Marshals came up to me and asked if my coat was in the cloakroom. I'm no amateur-- I know to take off my outer things before I enter a federal courtroom, so of course it was, and my fedora, too. He walked me back to the cloakroom, and told me that people were going downstairs to the main lobby. "If it was me," he said, "I'd be going somewhere to have a party." It was a good insight from a guy who has seen a lot of sentencings, and in fact that's what we did. We went to Hallwalls and toasted the courage and endurance of Lawrence Brose.

One of the points of doing Outside Counsel-- now in its tenth year-- is to say things that other people haven't said.  Here's a list of some things that I'm glad I said this year:

On Geoffrey Stokes

On Why the Statler would be wrong for UB Law

On The politics of judicial appointments

On Clerical sexual abuse

On Gun nuts

On OTB

On Juan-Carlos Formell and Johnny's Dream Club

On 64 ounces of sardines

On Funerals

On The ambiguities of history

Also, although I've flogged this piece several times before, my article in Afterimage on the prosecution of my friend Lawrence Brose is something I'm proud to have written. (It is being re-published in The Squealer, coming soon.)  The Brose case has been much commented upon by the sorts of people at the Buffalo News that comment on that sort of thing, and they have, I think, mostly gotten it wrong.  What has struck me throughout is that the local arts community has been notably reticent about standing up for a man who has been a prominent advocate for artistic freedom and arts funding for over ten years.  Lawrence would have been at the front of the line protesting Chris Collins' funding cuts, and the absence of his voice has been a profound void. I'm glad that Squeaky Wheel has stepped up and allowed me to speak out on this matter, and I am sorry that essentially no other arts organization in Buffalo has had the courage to do so.

It seems to have gone unremarked upon, at least so far, but the federal magistrate presiding over the prosecution of my friend Lawrence Brose has found that the indictment was defective and recommended that it be dismissed. I mention it even though it may not be the end of the matter mostly to make a point about how easy it is to pile on when charges are brought, and how quiet things get when the meat grinder that is the criminal justice system produces a result that runs contrary to expectations. I wish I could say that this shows that the system works, but of course that is only true in the most technical sense. The National Center for Reason and Justice has taken up Lawrence's cause, and his legal defense fund is here.

We had these ants as neighbors at the CEPA Gallery two years ago. In fact, that's the Buffalo skyline in the diorama-- you can see City Hall, and the Liberty Building. It was an interesting exhibit, from an interesting artist-- Elizabeth Demaray's work is about the intersection/imposition of nature and the manufactured world. (She made artificial housing for hermit crabs for a different project, for example.) This particular CEPA exhibition came at an interesting time. Critical Arts Ensemble founder Steve Kurtz was being prosecuted by the United States Attorney for the Western District of New York-- a disgraceful episode. CEPA's bio-art exhibition, worthy in its own right, was also a commentary on the Kurtz case, and typical of the courage (and sense of humor) of Lawrence Brose, CEPA's director at the time. You have to wonder if this nose tweaking was part of the dossier assembled on Brose, and why US Attorney for this area is so busy prosecuting artists.

Oh, and the ants died and kept having to be replaced.

Today Lawrence Brose will be sentenced. Here is my story for The Public about what has happened so far, and what we might expect.

Some Outside Counsel highlights:

• Tim Berne's Snakeoil. Thrilling avant-jazz.
• The ongoing saga of the Lawrence Brose defense, culminating in a successful plea deal and a sentence of two years probation. Just a word further on this: there will be more to say down the road, but for now I'll content myself with observing that this was a very sophisticated media operation, and I think it made a big difference.
• The Ice Hotel. I'm not sure why we have never gotten into the habit of warm location holidays in the winter: I am solidly in favor of warm, but this was fun too.
• A visit home for the funeral of a friend. In many ways this melancholy event was at the center of most of my thinking for the year, about place and mortality and change.
• Some thoughts on the thin line we walk.
• Radio Days. I sometimes muse on what paths I might have taken, and usually come up with journalist. Thing is, I'd have gone about it wrong; and at the end of the day journalism is possibly the only career path that is more doomed than law.
• Freshgrass. Whitest damn thing I ever saw. Hockey games are more diverse. Pretty great though.
• Rules for bands.
• A meditation on Muscle Shoals, which is nowhere near where I'd presumed it was.
• I'm going to come back to the myth of meritocracy at some point.
• Coaching the Buffalo State moot court team was interesting. The goal is to get the students to understand the law well enough to explain why their position should prevail, which means that they should be able to argue for either position with more or less equal fluency. Getting them to understand that what this means is that there is no correct answer to be found in the law-- that the right answer is a policy issue-- is a big step. I liked this group, who were cheated out of an opportunity to demonstrate their hard-acquired proficiency by a freak snowstorm.

For a variety of reasons I have held off commenting on the charges that have been brought against my friend Lawrence Brose. He has been the target of several ugly and unfair columns by the Arts editor and the Arts columnist of the Buffalo News, and I have engaged both of them in private email exchanges, calling them out on it. After the last go-round I was asked by the editor of Afterimage, the publication of Visual Studies Workshop, a non-profit media arts center located in Rochester, New York, to write something to present a more balanced view, and now it has appeared.

The bottom line for a lot of people seems to be that the nature of the claimed offense trumps all other considerations. I've been surprised and disappointed by the reaction to this thing, but I suppose I shouldn't have been.

The Buffalo News' Colin Dabkowski on the ordeal and redemption of Lawrence Brose.

I wonder if it is even possible for the mainstream American press to cover an election intelligently. It all seems like Cokie Roberts murmuring that both sides do "it", whatever it is that day. The effect of this is to normalize stuff that is actually illegitimate by creating false equivalencies. At this point Congressional Republicans seem to be going all in on delegitimatizing HRC. They know they can't win, but with the press complicit they can obstruct her ability to govern. This happens because essentially no-one is prepared to critically analyze the policy proposals embodied by the two parties, and that is, in turn, because the Republican party really has no coherent policies apart from the policies that failed catastrophically during the Reagan, Bush and Bush administrations. It takes Democratic administrations a stone-cold eight years-- nearly a decade-- to undue the damage, and by that time the skein has been lost, and the electorate becomes focused on the trivia that the media reports. Emails, for chrissake. Decades old disproved rumors. The horrible thing is that the cumulative effect of the media's malpractice has resulted-- perhaps inevitably-- in otherwise rational people losing their perspective. My friend Lawrence Brose recalled that during his legal ordeal he found himself wondering, "What happened to my sense of critical acuity?" That's what happens under a barrage of attacks, even if the attacks aren't directed at you. Our collective sense of critical acuity becomes collateral damage. "Just. Make. It. Stop." our mind screams.  

It's better to bend than to break. Everything I have written about the prosecution of Lawrence Brose is still true, including the fact that the images the government went looking for on his computer were never found. Today he entered a plead to the lesser charge of Obscenity-- 18 USC § 1462. It was the smart thing to do-- the essentially limitless resources of the US Attorney's Office had made fighting any longer an impossibility. His Legal Defense Fund can be accessed here. It is a sad commentary that the US Attorney's Office for the Western District of New York sees fit to target artists. It's all done in our name, and that's why it's important to pay attention.

I watched Howl the other day-- I am sort of surprised that I hadn't got to it earlier, but I have to be in a particular frame of mind for Beat stuff. James Franco quite good-- Allen Ginzberg's vocal cadences are familiar and distinctive, and Franco nailed it. The animated segments weren't quite in the visual style I'd have imagined, but they certainly worked well. Horribly, I found that I was more interested in the parts about the obscenity trial than the poetry parts. Part of this may have been because my ArtVoice column about Lawrence Brose had just run, so I had the defense of artistic freedom on my mind-- did Norman Mailer ever have a finer moment than his testimony at the obscenity trial against Naked Lunch? I'm afraid, however, that the reality is less noble: when you come to Howl at the right moment poetry is more important than any other principle; after a lifetime of standing up in court I'm afraid that I'd rather read an opinion by Oliver Wendel Holmes than re-read The Dharma Bums. 

This is, I think, the point that is being made in this assessment of  Jack Kerouac. If you come to him at the right time, Kerouac's writing is liberating, but it isn't easy to go back to him.

It's funny the things that stick with you. Years and years ago there was a comic strip called Moon Mullins.  I couldn't tell you much about it: the titular character was a former boxer, but that doesn't enter into the strip I'm recalling. One of the characters was feeding ducks on a pond, and when asked why replied, "Cast your bread upon the waters and it shall be returned to you a hundred-fold". That sounds like the set-up to a Peanuts strip, but what happened next wasn't: the first guy spotted a panhandler, and mindful of the mis-quotation from Ecclesiastes pulled a ten dollar bill from his wallet and gave it to him. Immediately he was swarmed by mendicants looking for handouts.

So it is with good deeds. This morning at 6:00 AM my phone rang. The caller's brother had been popped for inter alia, possession of child pornography, and my involvement with the Lawrence Brose Legal Defense Fund means that a Google search will turn up my name. I feel bad for the caller, and referred her to some actual criminal defense lawyers, but am left with the question, "How come nobody ever calls me at the crack of dawn asking for advice about pizza?"