Substantially Similar--A Blog on IP Issues, Writing and Film

For example, in a back page essay, "J.C." notes that Ambrose Bierce's 1911 The Devil's Dictionary has been issued in a new edition. Some of Bierce's cynical definitions include "Egoist: A person of low taste more interested in himself than in me"; "Misfortune: The kind of fortune that never misses"; "Kilt: A costume sometimes worn by Scotchmen in America and Americans in Scotland"; "Lawyer: One skilled in the circumvention of the law"; and "Distress: "A disease incurred by exposure to the prosperity of a friend." Bierce's definitions may be cynical, but his targets are still recognizable. 

In a forum of essays convened by TLS to accompany a review of books on President Donald Trump, TLS asked a number of writers to address the questions, mostly at a distance of 4,300 miles from the U.S., what is fascism and is Trump a fascist? The very raising of the questions, and so bluntly, shocked me. While I can imagine some people I know asking themselves these things in their minds, I have never seen them in print on this side of the Atlantic. The writers write at length, seriously, and, seemingly, objectively. Mary Beard, an author and TLS editor, writes that the word "fascist" is used indiscriminately and obscures rather than reveals. Richard J. Evans, a professor emeritus of history at the University of Cambridge, notes similarities between Hitler and Mussolini and Trump--intemperate language that fosters prejudice and violence and a lack or regard for the democratic process--and differences--the two dictators mobilized troops for conquest while Trump uses the internet. Mary Fulbrook, a professor of German history at the University College London, also notes similarities but concludes that fascism isn't just about the personality of the leader but about the circumstances under which power can be gained and sustained. On this side of the pond, Timothy Snyder, a professor of history at Yale University,  writes that Trump uses far-right slogans from the 1930s ("America First") and Nazi slogans such as "fake news" or the "lying press," which in German is "lüggenpresse," a word that Trump supporters shouted during October 2016 rallies. Hopefully, they did not know they were quoting the Nazis. I emerged from this exercise still shaken. But if the terms are being tossed about, it's good to have considered them objectively.

As Lewis Carroll playfully suggested in Alice in Wonderland, words are living things. They have they their own histories and personalities, they can hurt or help other living things, and it takes effort to understand them. 

What it means to be a Catholic is also in the minds of many in these days where we are focused on the scandal concerning pedophile priests and the coverup. In a TLS article in that issue on the existence (or non-existence) of hell, Joseph Farrell raises the question of what makes someone a "lapsed Catholic," something he considers himself to be. I always thought a lapsed Catholic was someone raised in the faith who, for whatever reason, no longer goes to church regularly, often because of issues with the church hierarchy. Many today say they are disillusioned in the church because of the pedophile scandal and coverup. Farrell defines a lapsed Catholic as neither an atheist nor an agnostic but as someone with the lingering doubt that there may indeed be a grand system of order in the universe with God at the top and Satan at the bottom, someone who can't shake off the fear of hell and who, when he or she is at death's door, "would call a priest as an insurance policy." That's an interesting, lingering thought.

In that essay on the last page of the TLS, J.C. asks the question, where are the Catholic writers of the 21st century, noting, in contrast, these of the 20th: Graham Greene, Evelyn Waugh, Muriel Sparks, and Anthony Burgess. This brings up the question, what is a Catholic writer? J.C. doesn't mention that Greene hated the label because he felt it discouraged over half of the book-buying public from purchasing his books. I think that being a Catholic doesn't make a writer a Catholic writer. Greene was a Catholic convert, but what may make people think of him as a Catholic writer is that many of his characters are riddled by what some would call Catholic guilt at what they consider their own imperfection. Farrell in that  separate article on the belief (or lack of it) that hell exists discusses the character Scobie in Greene's novel The Heart of the Matter who out of guilt about his adulterous affair kills himself, something he said earlier he couldn't imagine doing because it would mean he would go to hell. Farrell notes that, when Scobie is finally driven to take his own life and dies, he utters the words, "My God, I love...", but Greene wouldn't let him finish the sentence, leaving it unclear as to whether he would have said, "My God, I love you," which would suggest he would go to heaven, or "I love Helen," his mistress, which would mean that he was unrepentant about his sin of adultery and he would go to hell. I fondly remember Greene's novel The Comedians and the 1967 film version with Richard Burton and Alec Guinness, particularly the scene where the character Jones, having become an enemy of the Haitian state, is being brought out of the country by Brown. The scene between Burton and Guinness in the movie has them waiting until dawn in a cemetery with its crosses looming and Jones (Guinness) confessing how he is a braggart and a military fraud while Jones (Burton), a man who has become disillusioned and who says he has "no faith in faith," finds himself playing father-confessor to Jones and even speaks the priest's words of absolution as if in a confession. Some of Greene's works strongly evidence his Catholicism, some less so. Like Greene, I'm leery about labeling author as "Catholic" or "Jewish" because it limits them. In answer to J.C.'s question of where are the Catholic writers of today, it could well be that the lesser emphasis on Catholic rituals as a result of the 1963-64 Vatican Council and perhaps now the recent scandal may have diluted that identification.

Ambrose Bierce defined "learning" as "The kind of ignorance that distinguishes the studious." I hope he's wrong and that we spend more time on the meaning of  words before we use them and when we read others who use them.

These thoughts were further fueled by the premiere of Pershing: Paths to Glory, which my wife and I attended Sunday at the AFI Silver in Silver Spring, Maryland. Our friend Helen Patton is interviewed in the film. She was in town for the premiere and also for a commemoration of Veterans Day at the Washington National Cathedral. She is the granddaughter of General George S. Patton, who also served under General John J. Pershing in World War I and regarded him as his mentor.

My Dad, Sylvester J. Aquino, never went overseas. He was a freshman at Georgetown University when the war broke out, joined the navy through the university, and trained in Washington, D.C. We have photos of him in his navy uniform.

He always admired General Pershing and kept photos he had taken of Pershing's funeral procession in 1948 in Washington. 

The Pershing film, which was produced by the World War I Centennial Commission, takes an unexpected approach to its subject. Its focus is on young cadets who travel to important places in Pershing's life to learn more about him. As they go to locations in the U.S. and France associated with Pershing, they learn, as did we, facts about Pershing's life. He was born in 1860 in Laclede, Missouri. He graduated from West Point, served in the cavalry, and commanded a troop of one of the original Buffalo soldier regiments composed of African American soldiers serving under white commanding officers. He returned to West Point as an instructor where his stern discipline and his Buffalo soldier experience earned him the nickname "Blackjack Pershing" It was originally not a compliment. The documentary suggested that the newspapers "cleaned up" the nickname, which meant that it contained the "N" word coupled with "Jack," a variation of his first name. But the nickname, cleaned up, stuck, and by the turn of the 20th century presented an image of an officer of strength and force. He served in the Philippines and other locales and was promoted to general. In 1915, his wife and three daughters were killed in a fire, an event that affected him the rest of his life. In 1916, he was assigned to capture the Mexican bandit Pancho Villa. His troops routed Villa's forces, but Villa was not captured. When the U.S. entered World War I in 1917, Patton was made commander of the American Expeditionary Force. He was credited with U.S. victories, and they, coupled with the naval mutiny and the collapses of the Ottoman Empire and Austria-Hungary, led the the armistice in November 1918. He became a national and international hero.

The documentary shows that they have war reenactors in Europe, dressed in World War I uniforms, just as we have civil war reenactors in the U.S., and also that, just as those of us in the states may discover civil war bullets or cannon balls in the ground, the Europeans refer to the "iron harvest" of shells, bullets, broken swords, and shattered helmets that farmers continue to discover over the vast landscape that WWI occupied. That war was virtually a stalemate for four years, wiping out a generation of young man through death, by crippling them, or haunting their minds. I am very fond of the 1968 film, based on a stage play, Oh! What a Lovely War, directed by Richard Attenborough, that chronicles the war through contemporary songs. The mood changes from the jolly title song to 'The Bells of Hell (Go Ting-a-ling-a-ling for your but not for me)." It concludes with the image of an endless field of crosses and young men walking to their place before a cross, lying down, and disappearing into the earth while a male chorus sings in the background Cole Porter's parody of Jerome Kern's love song "They Didn't Believe Me"--"And when they ask us how dangerous it was/Oh, we'll never tell them, no, we'll, never tell them" which ends, "And when they ask us, and they're certainly going to ask us/ The reason why we didn't win the Croix d'Guerre,/Oh, we'll never tell them, we'll never tell them/There was a front but damned if we knew where." As a student of film, I have been interested in how many war films of the 1930's are anti-war films: All Quiet on the Western Front (1930) with its focus on a young man whose ideals are all but crushed by the war--final image, his hand stretches out reaching for a butterfly before he is shot and killed; Dawn Patrol (1930 and 1938) and Eagle and the Hawk (1933) about sending of young, experienced men as pilots who are slaughtered in the air by more experienced pilots. The latter film ends, SPOILER ALERT, with the top pilot shooting himself in anguish over the senselessness of war and his gunner arranging his death so that it looks like he died in battle. In the original final shot, which was edited out, the gunner becomes a drunkard because he has effectively cheapened his friend's death. Yesterday, my wife asked me about the poem "In Flander's Fields" by John McCrae, and immediately, remembering it completely from doing a recitation of it in sixth grade, I said it straight through, ending, "Take up our quarrel with the foe/To you from failing hands we throw/The torch, be yours to hold it high,]If ye break faith with us who die,/We shall not sleep, though poppies grow/In Flanders fields."

Commentators on the centennial of the end of World War I have noted that it, of course, wasn't, as promised, the war to end all wars. The U.S. has been engaged in at least five wars since then. Issues of 1914 to 1918 such as nationalism that prompts conflict remain with us. The wartime poet Wilfred Owens, who died just before war's end, wrote that all that soldiers  know is that wars last. Wars end with joy and sadness, which means, if nothing else, that they never end. At dinner before the film's premiere, Helen Patton, an actress, recited for my wife and me what she had recited in the Washington National Cathedral that morning, a 1918 poem by the poet Siegfried Sassoon on the reaction to the end of the war.

Let us pray that Sassoon ultimately was right.

Fallon was born in New York City in 1886, earned his law degree from Fordham Law School  and became a prosecutor in Westchester County, New York. But after three years, he left the prosecutor's office, reportedly because he had sent an innocent man to his death by execution. He started his own law firm that defended big paycheck clients such as stock manipulators and gangsters, including Arnold Rothstein, who fixed the 1919 World Series, and Nicky Arnstein, a gambler whose marriage to the Broadway star Fanny Brice is the plot for the musical and movie Funny Girl. Fallon was the attorney for 120 homicide defendants, and none were convicted.  He had a reputation for rhetorical brilliance--he was trained by Jesuits at Fordham, for courtroom theatrics and for being able to hang juries. He was accused of jury tampering, defended himself, and was acquitted. He became an alcoholic--when a judge asked if he had been drinking, he said, "If your honor's sense of justice is as acute as your sense of smell, my client need have no fear in this court"--and died in 1927 at the age of 41.

But his legend continued. In 1926, the play Chicago by Maurine Dallas Watkins debuted on Broadway. Its character of the attorney Billy Flynn, who gets two murderesses off, was partly based on Fallon. In 1931, Fallon's friend, the journalist and biographer Gene Fowler, published The Great Mouthpiece: A Life Story of  William J. Fallon. Commentators noted that the book was titled "A Life Story" rather than "The Life Story," indicating Fowler's tendency to embellish and fabricate. In the next 12 months, there were four Hollywood movies about a William J. Fallon-like attorney: The Mouthpiece, Lawyer Man, State's Attorney, and Attorney for the Defense. In March 1933, Erle Stanley Gardner published The Case of the Velvet Claws, the first of his novels about Perry Mason, a never-lose criminal attorney who liked to bend the rules and was at least partly based on Fallon. The first of six Perry Mason movies premiered in 1934 as The Case of the Howling Dog. In 1957, a CBS Perry Mason television series starring Raymond Burr debuted and ran until 1966, totaling 271 episodes. In 1985, Burr revived the character for 26 television movies. A musical version of Chicago debuted on Broadway in 1975. The score by John Kander and Fred Ebb has Billy Flynn sing the song "Razzle Dazzle" in which he describes the way he influences a jury. The movie version of the musical won the best picture Oscar in 2002.

And so, attorney characters based on Fallon have permeated the American cultural mind. It is true there have been less flamboyant and more human portraits of attorneys on film (Atticus Finch in To Kill a Mockingbird, the ideal lawyer for all lawyers) and television (the attorneys in Law and Order and its spinoffs). But on television, before and after Law and Order, attorneys included the wily southern lawyer Benjamin Matlock and most of the lawyers on L.A. Law, Boston Legal, and The Good Wife, all of who bore traces of William J. Fallon. It's not an overstatement to say that Fallon has played a strong role in the image of attorneys that the public has from movies and television.

Looking at the four Fallon-inspired 1932 movies, we can see the variations in the Fallon image. State's Attorney starred John Barrymore and was co-written by Gene Fowler, friend and biographer of both Barrymore and Fallon. The film was made the same year as Grand Hotel in which the still thin 50-year-old Barrymore showed he was still able to play a romantic lead. As his attorney portrayal the next year in Counselor at Law showed, he remained capable of a coherent, nuanced and well-rounded film portrayal, even one full of lengthy courtroom arguments. The film reverses Fallon's story, beginning with Barrymore's Tom Cardigan as a gangster's attorney and ending with his prosecution of gangsters. State's Attorney capitalizes on Barrymore's theatrical training and evidences Fowler's familiarity with Fallon's methods as Cardigan stalks the courtroom in silence for effect, brings the bed on which the victim was murdered into the courtroom and taps the lead club that was the murder weapon on the metal bed frame to unnerve the victim's wife who reacts nervously on the witness stand. It ends with Cardigan resigning as district attorney, vowing to only defend the innocent and those in need in the future, and walking out with his love on his arm. Lawyer Man starring William Powell (who played "William B. Foster," a Fallon clone in 1930's For the Defense) also shows the attorney's conversion from mob attorney to district attorney and ends happily with his walking off with his true love. The Mouthpiece, starring Warren Williams who was an actor who resembled Barrymore in looks and manner. isn't based on Fowler's biography but on a 1929 play by Frank J. Collins. It repeats the Fallon story of a prosecutor who resigns after he finds he sent an innocent man to the electric chair and becomes an attorney for criminals who can pay him well. Williams also displays Fallon-like courtroom tricks--he takes the bottle of poison from the evidence table, drinks it, rests his case, and then sits at the defense table for a half an hour doing work; when the jury, after peering out to see if his is still alive, find the defendant not guilty, Williams calmly walks across the street and has his stomach pumped, having discovered that the poison takes 45 minutes to take effect. But in the end, he sees the error of his ways, and when he turns against the mob he is gunned down. Attorney for the Defense, starring Edmund Lowe, also progresses, as Fallon's life did, from a  prosecutor repenting from a wrongful conviction to his becoming a mob attorney. The attorney, who is named Burton, uses his mob and corporate payoffs to take care of the convicted man's family and goes to prison, taking the rap for the convicted man's son.

As I wrote in my blog on the Perry Mason television series, Mason in the early episode is more wise-cracking, more willing to bend the rule, eager to plant or hide evidence, willing to hide witnesses, in short, more in the Fallon mode than in later episodes when Mason became more a part of the legal establishment.

Why is it that a Fallon-like attorney is so prevalent in film and television portrayals of attorneys? Courtroom theatrics obviously are more entertaining that the dogged plodding that lawyering really is. In our hearts, we may want an attorney who will pull out all stops, even cross the line when it comes to the rules in order to get us or our loved ones off. Atticus Finch is a noble example of what a lawyer should be. But, dramatically speaking, he loses his case and his client dies. It's sad, though understandable, that those making films and television shows have leaned toward the Fallon image of a lawyer rather than that of Atticus Finch. There have been Atticus Finches who have won their cases.

Hill alleged that Thomas sexually harassed her when she worked for him between 1981 and 1983. She cited four specific incidents. Thomas denied that what she described happened. I remember that, when the Hill hearings were taking place, I was taking evening law classes. My criminal law professor decided to devote the class to the hearings. He began, "Anita Hill says Judge Thomas did these things. He says he did not. Obviously, one of them is lying."

I immediately raised my hand and asked, "Why do you say that?"

He said, annoyed. "What you are taking about? One of them is clearly lying." 

I said, "The longer I live"--and I was the oldest in the class--"the more I realize that memory is selective, that we remember some things better than others." The only example I could think of was this. I was eight years old and heard that, not only was The Delicate Delinquent, a new Jerry Lewis movie,coming to the Loewe's Palace in downtown Washington, D.C. but Lewis was going to make a personal appearance. I begged my sister Jean to take me, and she grudgingly did. We watched the movie, saw Lewis perform, and stayed for an autographed photo. Thirty years later, after Easter dinner, the family was sitting in my Mom's living room and The Delicate Delinquent came on television. I turned to my sister and reminded her about how we had gone to see that movie when it first premiered. She watched it for a few minutes and said, "I've never seen this movie before, and I don't remember our going with you to see it."

My fellow students were wiggling in their seats listening to my Jerry Lewis story, and the professor was glaring at me. But I persisted, "The point is, that incident was evidently seared into my memory because it was very important to me at the time. And it's not surprising that my sister, who was nagged into taking her little brother to see a movie she cared nothing about, didn't remember it. Similarly, Anita Hill remembered four incidents that occurred over a three-year period that offended her deeply. To Thomas, these could have been four things that happened among many during the three years she worked for him and that were unimportant to him and that he promptly forgot. That's why it could be neither one of them is lying."

The professor nodded grimly, and I took his nod to either mean he was impressed by my reasoning or that he had consider the possibility I had outlined and either rejected it or hadn't wanted to get into it. "Does anyone want to comment?", he asked the class.

The hand of the fellow sitting next to me shot up. And for a split second I was pleased that I had sparked a discussion. "I don't have a comment," he said. "I wanted to bring something else up." "Thanks a lot," I hissed, and that was the end of it. The only reaction I received from my classmates was that they believed my sister and that we hadn't seen the movie. "But I still have the autographed photo!," I said. The Thomas hearings continued, and he was confirmed 52 to 48.

The older I get, the more I think my earlier thoughts about memory were 

correct. 

There are differences between the Thomas and Kavanaugh situations. The incidents Hill brought up happened about eight years before the hearings between two adults. What Ford is describing happened around 33 years ago between teenagers. Hill told coworkers about what happened, but Ford evidently told no one until she described it to her therapist during couples' counseling in 2012, 27 years after the event. But the Ford-Kavanaugh situation also suggests possible filters, circumstances, and other reasons as to why they remember the way they remember. 

Ford and Kavanaugh were teenagers, there was drinking at the party, she says he was drunk, perhaps she had been drinking too. She was highly offended by what he did but didn't tell anyone: perhaps she didn't want to tell her parents because there was under-aged drinking at the party or she could have been embarrassed and even traumatized. Twenty-seven years later she made it a cornerstone of her discussion with her therapist, which suggests that the memory of that night stayed with her. Kavanaugh says he doesn't remember anything like it happening, which would make sense if he was drunk or if it didn't happen or if he didn't care at the time because he was callous and simply forgot about it or if he didn't take it seriously at the time because it didn't happen in exactly the way she described. His possible intoxication or callousness have been discounted by other women he went to high school with and the man she said he was with during the alleged incident, although he admits in a book to attending a lot of drunken high school parties. High school classmates of both Ford and Kavanaugh speak highly of them. Kathleen Parker in a Washington Post column raises the possibility of a doppleganger, which I think, as a writer and former teacher of science and fantasy, is a term she misuses because it's rooted in myth and means a supernatural double of another person. I think she means it's a case of mistaken identity. My wife has noticed that in looking at high school yearbooks all the young women look different and all the young men look alike. How well did Ford know Kavanaugh?--they both went to different schools, but she could have gotten to know him. 

It's possible further investigation may bring some answers. At the moment, it looks like any governmental investigation that attempts to find corroboration could be difficult because, according to reports, Ford doesn't remember what party it was or exactly when it occurred. It could be it will come down to the memories of Ford and Kavanaugh, and all the factors and filters that go with them.

To recap, Daniel Murphy, playing for the New York Mets, set a baseball record in 2015 by hitting six home runs in consecutive games. He rejected the offer the Mets made for the next season and agreed to play for the Nats. In 2016, he hit. .347, homered 25 times, and drove in 103 runs. He won a silver slugger award and was named the National League's best offensive second baseman. In 2017, he batted .322, homered 23 times and drove in 93 runs, despite a knee injury that took him out of the lineup until June 2018. Meanwhile, the Nats were thought to have a stellar batting lineup and a magnificent roster of starting and relief pitchers. But injuries and poor performances cooled the high expectations. When Murphy returned, he brought his batting average up to .300 and had an 11- game hitting streak through August 18. On August 19, the Nats lost 12-1 to the Miami Marlins. Everyone played poorly. Murphy was hitless and committed two errors. On August 21, General Manager Anthony Rizzo announced that he was trading Murphy to the Chicago Cubs. This move was quickly interpreted to mean the Nats' management were giving up on entering the playoffs this season, otherwise they wouldn't have given up a hitter of Murphy's caliber.

I asked myself, what else did Murphy have to do--coming back without spring training and in less than two months hitting .300--to convince the team of his value. It reminded me of a very small scene in Otto Preminger's 1964 war epic In Harm's Way. John Wayne plays an admiral anticipating an attack from the Japanese fleet. His second-in-command, played by Kirk Douglas, has raped a young nurse who kills herself. Realizing his career is over and that he has broken the trust of his commanding officer, Douglas takes a plane and searches on his own for the Japanese fleet. He radios in the fleet's location to a group of officers that includes Wayne before he is shot down. One of the officers says to Wayne that Douglas should be recommended for a medal, perhaps even the Congressional Medal of Honor. Wayne, who knows why Douglas went up, says, no, no medal. And, for just a second, the other officers, who don't know what Wayne knows, look at each other as if to say, "He sacrifices his life to locate the enemy fleet and no medal! What do you have to do to get a medal in this outfit!"

When I said this to some people, they noted that Murphy, along with a good many other Nats, will become a free agent at the end of the season. I was told that the management had decided not to make Murphy an offer for next season and so they made the move to get what money the Cub offered for him. I told my John Wayne story and said that given what Murphy had done for the Nats the Nats' action was a cold one. My friends and family agreed and said, "It's a business. That's baseball!"

Is it baseball? Baseball of fair play and loyal fans? I mean, if the Nats needed a pitcher or catcher to make the playoffs and traded Murphy for one or both, that would make sense. But to do it for what little money they'd get for Murphy for the time he will play before he becomes a free agent! That's not only cold, it's disloyal. Fans have a right to feel that management is on their side.

Using another film analogy, I remember the 1949  movie The Stratton Story about a pitcher who loses his leg in an accident and works and works to use his artificial leg to play again. He convinces a minor league team to give him a chance. The opposing team decides to play to his weakness. Knowing that Stratton would be slow to get off mound to field a ball, the manager tells his team to bunt. Two times, Stratton almost kills himself to field the ball, and the runners are safe. The third time, he is able to throw the runner out, and the opposing team abandons its bunt strategy. But the film makes it clear that we are to admire Stratton's courage and that, while the opposing team's job is to win the game, targeting a player's physical handicap is villainous. And it's also villainous to have someone play his heart out for the team and for the team to treat him so shabbily.

I also think that Rizzo has shown a tendency to act out of pique. On July 31, the Nats' traded relief pitcher Brandon Kintzler to the Cubs. There were rumors that Kintzler had been vocal about the Nats' poor showing, although, after the trade, a number of players came forward about how supportive the veteran pitcher had been to them. There were also rumors that the Nats' believed Kintzler was the source for an article about strife in the Nats' dugout. The author of the article reported later that he had never spoken to Kintzler. On August 5, the Nats' traded relief pitcher Shawn Kelley to the Oakland Athletics because he threw down his glove in disgust after giving up a grand slam home run. Rizzo said that this showed disrespect to the team and its manager. And then, after Murphy makes two errors, he trades him.

I was also disturbed that after the trade the Nats' management said that, while Wilmer Difo, Murphy's replacement at second base, cannot match Murphy's hitting (Difo is hiting .240), he will be much better fielder. An analysis of the Nats' stats on its website don't support this. 

I've lost some interest in the Nats, not because they haven't won enough, but because of how they treated Murphy. As for Murphy, he behaved like a gentleman, went to the Cubs, and, scored at least one hit in every game he's played including two home runs through August 27, bringing his average up to .313. The Cubs had lost six straight games, and once Murphy joined them they won six straight.

We don't know how the season will end up. But as for who behaved best in all this, it's Murphy.