Saturday, March 14, 2009

Romancing the Shoe Thrower: Misreading the Support for Resistance

There is often a romantic/idealized aura surrounding acts of resistance and/or resistance movements. This is possibly why the film industry (amongst other industries of culture) devote, at least in part, a fair amount of attention to narratives of resistance (and are often the focus of my recent postings). However, in this posting I want to focus on a particular New York Times article published yesterday, that takes, in a questionable way, the romanticizing of resistance (which here involve unlawful acts) to a whole different level.

The article, entitled "To Make Female Hearts Flutter in Iraq, Throw a Shoe" discusses, in particular, the reaction of female Iraqis to Muntader al-Zaidi, the journalist recently convicted and sentenced to three years in prison for having thrown his shoes at President George W. Bush during a press conference late last year. Zaidi's act was of course clearly unlawful and for many, particularly, in Iraq, it was likely seen as a justifiable act of resistance against a head of state who ordered the invasion and occupation of their country. However what is interesting about the article is how it frames and contextualizes the nature of female Iraqi support for Zaidi's act. If the title didn't give it away, then certainly the opening lines give you a striking impression of where the writers are heading (or at least attempting to contextualize/frame what is to follow):
What does it take for an Iraqi woman to fall in love with a man?
In parks and dress shops, in university halls and on picnics, Iraqi women are still smitten — three months and one new American president later — by the shoe thrower, Muntader al-Zaidi.
Do the title and opening lines perhaps imply/reflect/betray certain perceptions held about resistive acts committed by individuals in the 'developing world'? Perhaps. First, from this article's framing, Zaidi's (failed) act of resistance (whether you agree with the advisability of his act or not and whether there were more non-violent ways to demonstrate his disdain) ends up representing/serving a trivial purpose: throwing shoes at a foreign head of state as a mere attempt at enticing women or impressing them. Second, it reflects the limited notion/subtext that the principal way that the otherwise (and allegedly) 'repressed' Iraqi woman can experience falling in love in a simplistically constructed/imagined 'stifling, repressive culture' (here the Iraqi culture is the local stand-in for Arab culture regionally and 'third world' culture more generally) is through adoration of a man who has committed some violent (even if failed) act.

What do the writers base their ideas on? Conversations with twenty women over a few days. Of those twenty (and from what was included in the article), only one appears to have made any comments that resembled or matched the tenor of the title and opening lines of the article.
Atiyaf Mahmoud, 19, a student in her first year of medical school said, “I love Zaidi. I saw him in my dreams twice, the last one was after the trial, he was released and I went to congratulate him and shake his hand.”
“I was so excited in that sweet dream,” she said. “I wish to have that dream again.”
Interestingly, and to the writers' credit, the majority of article focused on the portions of the other interviewees' remarks that seemed to emphasize more sober points about the possible meaning(s) of Zaidi's act than of lovesick girls starving for a hero. For Hanan Mahdi, Zaidi's act was a manifestation of national pride and the source of respect in a neighboring state. She posits that “Muntader make [sic] us proud of ourselves as Iraqis.” Furthermore, Mahdi noted that while she was in Syria at the time Zaidi threw his shoes, she noticed the change in the way Syrian people treated them as Iraqis. She notes: “They treated us in a better way.” For another interviewee, it was an attempt to do that which no one else dared. Um Baneen stressed: “[n]o one dared to face Bush in the whole world, only Muntader al-Zaidi.” Lastly, one interviewee even disapproved of Zaidi's actions as a shameful act and his conviction as "a lesson to all Iraqis who are willing to do shameful acts and pretend that it’s democracy.”

Although it is questionable whether twenty individual women can be a representative reflection of the opinions held by the majority of Iraq women ("[w]hile Iraqi men have been divided over Mr. Zaidi’s gesture, it was hard to find a woman who wholeheartedly disapproved of him), the majority of the opinions featured in the article highlighted a range of opinions about the meanings of Zaidi's (resistive) act that did not resemble or substantiate the infantile, reductionist and tabloidesque framing that was applied to them at the outset. One ought to expect something better of a New York Times article - small or large.

Source consulted:
Abeer Mohammed and Alissa J. Rubin, "To Make Female Hearts Flutter in Iraq, Throw a Shoe" New York Times, March 13, 2009. Online:

Monday, March 9, 2009

Jury Nullification, Resistance and Law

In keeping with the jury theme that Alex has been addressing over the past couple of months, and my own fascination with the interrelationship between law and resistance, I am going to discuss the concept of jury nullification as a form of resistance as depicted within film and television. Jury nullification takes place where a jury intentionally acquits someone who is otherwise presumably guilty on the basis of sufficient evidence to convict them of the crime charged. Such acquittals may be due to some moral consideration(s) or equally, a sense of justice whereby the application of the law to the facts of the case would create a greater injustice (See Gormlie, 1996: 49; Levine 1994: 473). Jury nullification dates back centuries (Rucker, 1998-1999) and has even been endorsed by state actors such as John Adams and Alexander Hamilton (Gormlie, 1996: 54).

Depending on the case, jury nullification can serve as a legal act which legitimizes and endorses the unlawful act(s) perpetrated by the accused against the “victim” of the crime in order to advance a more important objective – e.g. unlawful public protests against discriminatory laws; acts of civil disobedience that challenge a state’s decision to engage in an unlawful war.

In film and television, instances of jury nullification have arisen in the context of murder to correct a pre-existing injustice. In the film, A Time to Kill (based on the novel by John Grisham), Carl Lee Hailey, an African-American man kills two White male racists who brutally raped and attempted to murder his ten year old daughter Tonya. Just prior to his executing the two accused individuals, Hailey visits Jake Brigance (a White lawyer who had represented Hailey’s brother previously) where we come to find out that 4 white males the previous year were acquitted for raping an African-American girl. This sets up the context that southern justice in the United States essentially permits White men to commit violent sexual acts against young African-American girls with impunity, sanctioned by a (presumably) White jury. Sensing that no justice will prevail for his daughter, he decides to take the law into his own hands.

Brigance advances an insanity defence for Hailey, notwithstanding that the act was premeditated and Hailey knew the consequences of his action. Yet as the film progresses and the film audience is privy to the sequestered jury’s discussions about the case during supper (which is unlawful given that jurors are not to discuss the case before all the evidence is heard), we learn that the jury is prepared to convict Hailey of the murder, in part due to racial animus. During the trial, Hailey emotionally declares while on the stand that the two rapists "deserved to die, and I hope they burn in hell!" As the film closes, Brigance asks the jury to visualize in graphic detail the rape and attempted murder of a ten year old girl and to imagine what their reaction would be had the girl been White – would they be willing to convict her father of committing the same vigilante murder as did Hailey. The all-White jury then acquits Hailey of the murders.

Hailey’s acquittal was in essence an act of jury nullification for he clearly committed the murders. His conduct is constructed as an act of resistance against a socio-legal normative order that permits the rape of African-American girls without penal consequences to its perpetrators. The jury’s nullification of the law as applied to Hailey legitimizes his act of resistive murder. It sends a message that where racialized violence is allowed vigilante actions taken to correct such injustices ought to be permitted. Hailey’s actions here seem justifiable given that the individuals who had fallen victim to his rifle were rapists and racists who may have been able to evade conviction. The objects of the resistance were clearly defined and few tears would be shed for their demise.

Jury nullification is a ripe topic for both film and television scripts. It brings into question the validity of the law and the necessity to violate it at times to perhaps effectuate a more humane result. This is particularly the case in the context of euthanasia and the suffering of individuals with terminal diseases. In most jurisdictions, mercy killing is still unlawful despite the suffering of many who seek to terminate their life with the assistance of medical doctors. Various television shows, including those written by David E. Kelly have attempted to handle the issue of euthanasia. For instance, in the season finale of the Emmy-award winning television series Picket Fences (“Howard’s End”, season 2, episode 22), the Alzheimer’s-afflicted mayor, Howard Buss is killed by his adult son, Kevin, as an act of mercy when Howard, in an advanced degenerative state, sheds his clothes and rides a rocking horse in his office. Kevin, having seen his father’s condition progressively worsen over several months decides to pull out a gun from Howard’s desk and shoot Howard. Ultimately, Kevin is prosecuted but the jury acquits him of the murder, due in no small part to the testimony of the lead protagonist, Sheriff James Brock who testifies sympathetically in Kevin’s favour by openly questioning how the district attorney could prosecute Kevin in these circumstances. The jury is given clear endorsement by the chief law enforcement official in the town.

Through dramatization through television and film, viewers learn that the application of law in courts is not a simple clear cut process even where the defendant is apparently guilty and no defenses realistically apply (in A Time to Kill, it becomes abundantly clear that Hailey was not insane at the time of the killings). There are times when convicting a defendant can lead to a further injustice in addition to the one that prompted the unlawful act in the first place. Such dramatizations provide the viewing public of the power that juries hold in nullifying the law and thus enable resistance to be legitimized. Yet one should not imagine that jury nullification only works to correct some injustices. There is a double-edged sword. Indeed in some circumstances, jury nullification could conceivably result in certain prevailing prejudices being endorsed if the majority of the jury is comprised of members of an identifiable majority that is pre-disposed to acquitting a defendant who hails from that majority and who has committed an unlawful and violent act against a member of a despised minority.

The jury’s legitimization however is only forthcoming when they are able to imagine Hailey’s daughter as a humanized being, as a white girl.

Sources consulted:

G. Frank Gormlie, “Jury Nullification: History, Practice, and Prospects” (1996) 53 Guild Practitioner 49.

James P. Levine, “The Role of Jury Nullification Instructions in the Quest for Justice” (1994) 18 Legal Studies Forum 473.

Robert D. Rucker, “The Right to Ignore the Law: Constitutional Entitlement Versus Judicial Interpretation” (1998) 33 Valparaiso University Law Review 450.

Sunday, March 8, 2009

The Idol Jury Part III

This week concluded another milestone in the American Idol season – the selection of the Top 12, or, in this season, the Top 13 contestants. In many ways, the path to the Top 13 was the same as in previous years, and yet in other, significant ways, this year’s contestants set out on an entirely new path to the coveted place in the next round of competition.

As usual, the selection process for the Top 13 involved voting by the American public. Unusually, however, this season this judges selected 36 contestants from which to draw the Top 13. Instead of having all contestants perform and then allowing the public to vote, the 36 contestants were divided into groups of 12 and each group performed once over a 3-week period. The public was invited to vote for a favorite contestant after each of these performances, and the following night the top vote-getting male and female singer were advanced to the Top 13, along with the next highest vote-getter, regardless of gender. The final slots in the Top 13 were determined by the judges’ wild card picks. In order to make the wild card determinations, the judges picked eight previously eliminated contestants and asked them to sing one last time before advancing four members of this group to the Top 13. In addition to providing an interesting variant on past seasons, the Top 13 selection process has a variety of implications for and parallels to the jury process.

The introduction of the new format for contestant selection could in some ways be seen as the antithesis of the jury experience in that there is a set procedure for the conduct of jury trials and that procedure is not drastically changed in any jurisdiction. However, a parallel can be seen between the change in the contestant structure and the jury deliberation process. Although there is a set format for the process for jury deliberation, there is not a routine jury deliberation itself. The experience for a juror can range speedy or tediously prolonged and reasonably civil to outright hostile. In this sense, the format of the inner workings of a jury deliberation is unpredictable and similar to the change in Idol contestant format because of the disquiet and changing expectations in terms of experience and outcomes that are associated with both.

Prior to each contestant’s performance, a short video interview with the contestant was shown, and after each performance the contestant had the ability to answer the judges’ comments and criticisms. In this sense, the contestant’s statements could be analogized to the testimony of a plaintiff or defendant at trial. The initial video is in many ways similar to examination by one’s counsel, bringing out the good and appealing qualities associated with the contestant and his/her particular story and/or relationship to the art of singing, as well as to the audition process to that point. The video is generally positive, upbeat and laudatory. In contrast, the judges’ comments and criticisms can be seen as analogous to a cross-examination at trial in that they generally bring out the negative or less appealing aspects of the contestant’s performance. During the judges’ comment session, some contestants elect to answer the judges’ comments directly in what often becomes an adversarial or defensive tone. Others elect to wait until after the judges’ comments have concluded before making any responses or further comments; when these responses and comments are made they vary from polite to visibly annoyed. In this sense, the contestants’ confrontational comments during the judges’ comments can be seen as similar to cross-examination, while the contestants’ post-judging comments responses can be analogized to a witness rebuttal statement. It is during this process that voters can also form opinions of the contestant outside of their purely vocal abilities; opinions which can be formative in the voters overall decision-making and voting patterns.

Similarly, after many contestants performed, their family and friends were interviewed by the show’s host, Ryan Seacrest. These interviews can be analogized to character witnesses at trial. Again, their actions can also frame the attitudes of voters in terms of their demeanor and defense of the family member or friend who has performed and been judged. Some family members appear as supportive and sympathetic to the audience and potential voters, while others seem to be more defensive and thus potentially antagonizing to viewers and voters.

During the public voting process, the judges can also be seen to have colored the viewpoints of voters and sent subtle – and sometimes quite obvious – cues to voters. In several instances, one or more of the judges was not enthralled with a contestant’s performance but encouraged America to vote for the contestant because of their personality or potential for future vocal development. In other instances, the judges were quite harsh on contestants, in essence daring the voting public to prove them wrong by voting for the contestant in question. Several times, the public apparently followed the cues of the judges in their voting patterns. The analogy here is between both lawyers making their closing arguments to a jury and, in some instances, to judges who take active roles in the conduct of a jury trial.

There are also important analogies to the jury experience in the wild card selection process. Perhaps the most glaringly obvious analogy is between the ability of the judges to overrule the voting public’s opinions and the ability of a trial court judge to enter a judgment not withstanding the verdict.

Another analogy to the trial system altogether is that of the song choice made by the contestants selected to compete for the wild card slots. Repeatedly, the judges commented that contestants made song choices which were self-indulgent and which were not sung to please or appeal to the judges. The analogy here is with witness testimony at trial, regardless whether that trial is a bench or jury trial. By exhorting the contestants to sing songs designed to please the decision-makers rather than being true to their own selves – in essence, to the truth of their identity – the judges essentially encouraged contestants to change their identity in order to please them. Similarly, witnesses are often guided – by counsel or their own beliefs – to appear different than they really are or to testify in a way which the witness believes will be well-received by the finder of fact rather than to testify to the blunt and honest truth and to present themselves and the facts as they really are. Here, potential jurors receive the message that it is encouraged, and even necessary, to shade one’s presentation in order to please those making decisions. This can be seen both as inculcating acceptance of this idea in potential jurors and making them skeptical of in-court testimony by causing them to question the veracity of a witness’ presented identity and facts.

Finally, at the wild card stage the judges made no attempt to disguise the fact that their selections for both the wild card tryouts and the wild card slots were heavily influenced by the history of the contestants from their first auditions onward. Thus, in essence, the judges relied on a series of impressions to make their wild card selections and did not necessarily focus on the performance of the contestants on the designated night of their decisive performances in order to advance contestants. The danger of this practice to the jury system is in the analogy to the ability of jurors – consciously or subconsciously – to incorporate first and other impressions of parties and witnesses into their final decision rather than relying solely on the testimony and evidence presented at the designated portion of the trial. Problems involving juror use of impressions and other non-testimonial or evidentiary based elements to make decisions are certainly nothing new; however, the wild card selection process on American Idol only served as a reinforcement of the acceptability of such considerations in crafting decisions.

For information regarding American Idol see .

Wednesday, March 4, 2009

Par for Confusion

From February 25, 2009 to March 1, 2009, the eyes of the golf world, and its many fans, settled on a thorny desert golf course outside of Tucson, Arizona for the Accenture Match Play World Golf Championship event. The primary focus of media attention at the outset of the tournament was the return of Tiger Woods to the professional golfing tour. As compelling as this story was to golf fans and non-fans alike, there was another, more subtle subtext to the championship which raises startling questions for the relationship between information on rules, the media, and the public.

Unlike the standard golf tournament system to which at least US viewers are accustomed through near weekly exposure during the golf season, the Accenture championship uses the “match play” format more commonly used in other areas of the world. Briefly, match play format pairs up golfers and the winner of the pair on each day advances. Ultimately, there is a two player final, in which the competitors play 36 holes of golf to determine the winner. Although seemingly easy to understand, this format is steeped in unusual rules. The difficulty of not knowing the applicable rules was compounded by the desert terrain of the Accenture championship venue, which resulted in several situations where players were faced with a choice between incurring a penalty or playing a ball shrouded in dangerous cacti and other obstacles.

Throughout the championship coverage, which was split between the Golf Channel and NBC, the sports commentators represented a distinguished group of former elite golfers and seasoned sports reporters. This group of commentators provided information on everything from the personal lives of the players to the design of the unique desert course, yet rarely did they provide a clear understanding of the rules of the tournament’s format and play. Listening to the former golfers, it was obvious that they understood the rules of match play – and that some had themselves played tournaments using the match play format. Much the same could be said of the sports reporters, who clearly had covered match play tournaments in the past and were familiar with the rules. However, the standard viewer was left clueless as to the particular rules of the game he was watching, and was not provided much clarity or guidance by the media covering the event. This was particularly troublesome since the primary source of such information – other than an independent research project – for viewers was and typically is the sports media coverage of the event.

Beyond causing annoyance to the viewer, there are larger legal implications in this lack of easy access to the rules. Golf, like most sports, is structured by the rules that govern it. It is, in many ways, analogous to society generally in that it rewards those who play within the rules and punishes those who violate the rules, even when the rules are unknown to the players or when a particular player did not understand the meaning of a rule. Indeed, golf rules are in many ways the embodiment of strict liability at law in that frequently there are no defenses available to the players who have violated a rule.

For viewers as well as players, understanding the rules is essential to understanding the game. Without an understanding of the rules of play, the viewer is left to watch and wonder at what he sees. He is at once a part of the society of viewers and yet is acutely aware that he is not truly integrated into that society because he does not understand its language or its rules. It is at this point that the media’s role changes from the passive conduit of television feed to the active role of interpreter for the viewer. Sports commentators have knowledge and access to information that can make the unknown understandable to viewers. Through the media, the viewer can be educated as to the rules of play and thus watch the events unfolding before him without confusion and as a fully integrated member of society. However, the converse side of the media-viewer relationship in this context is that the withholding of information – or the provision of partial information – can further throw the viewer into a state of confusion. Worse still, the provision of partial information can trick the viewer into thinking that he understands the rules. This is perhaps the most dangerous situation, because it allows the viewer to pass judgment on players without actually perceiving his ignorance.

Thus, the Accenture championship and its coverage by sports media demonstrates the impact of media on individual understanding of and inclusion in a set of rules and norms with which he is otherwise unfamiliar. Although this particular instance related to the world of golf, there are important legal lessons from this example. We see the role of media in controlling access to information that is not otherwise well-known or readily available in society generally. We see the ability of media to control information to make an individual feel or perceive himself to be removed from mainstream society. We see the ability of media to disseminate incomplete information to the public such that members of the viewing public believe they can pass judgments when in reality they do not have all of the relevant information and knowledge of applicable laws and rules needed to make a valid and informed judgment. And we see the potential for the media to provide complete information to the viewer, making the viewer a fully engaged member of the particular society at issue, and able to pass informed judgments. These lessons remind us of the power of the media in understanding rules and laws in a variety of fora, not just the golf course.

Accenture Match Play World Gold Championships, PGA Tour, available at .
Woods Returning Next Week, ESPN.Com, available at .
Match Play, Wikipedia.Com, available at .